Bourque v. Duplechin

• Decision Date: 14 April 1976
• Docket Number: No. 5396,5396
• Citation: 331 So.2d 40
• Parties: Jerome BOURQUE, Jr., Plaintiff-Appellee, v. Adrien DUPLECHIN et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 40

331 So.2d 40

Jerome BOURQUE, Jr., Plaintiff-Appellee, v. Adrien DUPLECHIN et al., Defendants-Appellants.

No. 5396.

Court of Appeal of Louisiana, Third Circuit.

April 14, 1976.

Rehearings Denied May 21, 1976.

Writs Refused July 1, 1976.

Edwards, Stefanski & Barousse by Homer E. Barousse, Jr., Crowley, Lucius A. Hornsby, Jr., Lafayette, for defendants-appellants.

Voorhies & Labbe by D. Mark Bienvenu, Lafayette, for plaintiff-appellee.

Before WATSON, CUTRER and PETERS, JJ.

WATSON, Judge.

Plaintiff, Jerome Bourque, Jr., filed this suit to recover damages for personal injuries received in a softball game. Made defendants were Adrien Duplechin, a member of the opposing team who inflicted the injuries, and Duplechin's liability insurer, Allstate Insurance Company. The trial court rendered judgment in favor of plaintiff against both defendants and defendants have appealed. We affirm.

Both Duplechin and Allstate contend that the trial court erred: in not finding that Bourque assumed the risk of injury by participating in the softball game; and in failing to find that Bourque was guilty of contributory negligence. Defendant Duplechin also contends that the trial court erred in finding him negligent and in finding that the injury to plaintiff Bourque occurred four to five feet away from the second base position in the general direction of the pitcher's mound. Allstate further contends that the trial court erred in finding coverage under its policy which excludes injury intended or expected by the insured.

On June 9, 1974, Bourque was playing second base on a softball team fielded by Boo Boo's Lounge. Duplechin, a member of the opposing team sponsored by Murray's Steak House and Lounge, had hit the ball and advanced to first base. A teammate of Duplechin's, Steve Pressler, hit a ground ball and Duplechin started to second. The shortstop caught the ground ball and threw it to Bourque who tagged second base and then stepped away from second base to throw the ball to first and execute a double play. After Bourque had thrown the ball to first base, Duplechin ran at full speed into Bourque. As Duplechin ran into Bourque, he brought his left arm up under Bourque's chin. The evidence supports the trial court's factual conclusion that the collision occurred four or five feet away from the second base position in the direction of the pitcher's mound. Duplechin was thrown out of the game by the umpire because of the incident.

Pertinent to the trial court's decision was the following testimony:

Plaintiff Bourque, age 22 at the time of trial, testified that he is 5 7 tall. He was well out of the way when he was hit, standing four or five feet from second base and outside the base line. He knew there was a possiblity of a runner sliding into him but had never imagined what actually happened, which he regarded as unbelievable under the circumstances.

Gregory John Laborde, a student at Tulane Law School, testified that he witnessed the incident from the dugout along the first base line and saw Duplechin turn and run directly toward Bourque who was standing four or five feet from second base toward home plate. Duplechin did not attempt to slide or decrease his speed and his left arm came up under Bourque's chin as they collided. Duplechin had to veer from the base path in order to strike Bourque.

Donald Frank Lockwood, baseball coach at USL, testified as an expert witness that: softball is a noncontact sport; in a forced play to second such as this, the accepted way to break up a double play is by sliding.

Steve Pressler, who hit the ground ball that precipitated the incident, testified that the sides were retired as a result, because the collision was a flagrant violation of the rules of the game.

Duplechin admitted that he ran into Bourque while standing up in an attempt to block Bourque's view of first base and keep him from executing a double play. Duplechin also admitted that he was running at full speed when he collided with Bourque, a much smaller man. Duplechin attributed the accident to Bourque's failure to get out of the way.

Oral surgeon John R. Wallace saw Bourque following the accident and said the nature of the injury and the x-rays indicated that it was caused by a blow from underneath the jaw. Dr. Wallce characterized the injury as one that may have been common in football before the use of mouthpieces and faceguards.

While other testimony was presented, both cumulative and contradictory, the evidence summarized above provides a reasonable evidentiary basis for the trial court's conclusions.

There is no question that defendant Duplechin's conduct was the cause in fact of the harm to plaintiff Bourque. Duplechin was under a duty to play softball in the ordinary fashion without unsportsmanlike conduct or wanton injury to his fellow players. This duty was breached by Duplechin, whose behavior was, according to the evidence, substandard and negligent. Bourque assumed the risk of being hit by a bat or a ball. Benedetto v. Travelers Insurance Company, 172 So.2d 354 (La.App. 4 Cir. 1965) writ denied, 247 La. 872, 175 So.2d 108; Richmond v. Employers' Fire Insurance Company, 298 So.2d 118 (La.App. 1 Cir. 1974) writ denied, La., 302 So.2d 18. Bourque may also have assumed the risk of an injury resulting from standing in the base path and being spiked by someone sliding into second base, a common incident of softball and baseball . However, Bourque did not assume the risk of Duplechin going out of his way to run into him at full speed when Bourque was five feet away from the base. A participant in a game or sport assumes all of the risks incidental to that particular activity which are obvious and foreseeable. A participant does not assume the risk of injury from fellow players acting...