Bowser v. Hershey Baseball Ass'n

• Decision Date: 09 October 1986
• Citation: 516 A.2d 61,357 Pa.Super. 435
• Parties: John B. BOWSER and Barbara L. Bowser, Appellants, v. The HERSHEY BASEBALL ASSOCIATION, Appellee, v. Chris O'NEILL, Appellee.
• Court: Pennsylvania Superior Court

Page 61

516 A.2d 61

357 Pa.Super. 435

John B. BOWSER and Barbara L. Bowser, Appellants, v. The HERSHEY BASEBALL ASSOCIATION, Appellee, v. Chris O'NEILL, Appellee.

Superior Court of Pennsylvania.

Argued June 24, 1986.

Filed Oct. 9, 1986.

Clyde W. McIntyre, Harrisburg, for appellants.

Charles W. Rubendall, II, Harrisburg, for Hershey, appellee.

Richard B. Swartz and James Clippinger, Harrisburg, for O'Neill, appellee.

Before WIEAND, BECK and WATKINS, JJ.

WIEAND, Judge:

May a plaintiff who was struck by a batted baseball during team tryouts conducted under the auspices of an unincorporated, non-profit association recover damages against the association of which he was a member and on whose behalf he was conducting the tryouts? The trial court held there could be no recovery and entered a compulsory nonsuit which it subsequently refused to remove. The plaintiff appealed.

The Hershey Baseball Association is an unincorporated, non-profit association organized to provide a summer baseball program for youths and adults in Derry Township, Dauphin County. John B. Bowser, the plaintiff and now appellant, was a former baseball player and coach. He became a member of the association's board of directors in 1979, and in 1981 he became commissioner of the association's "teener" league for children between the ages of thirteen and fifteen. As commissioner, Bowser assisted with sign-ups, making up team rosters, representing the association at league games and interpreting the rules. In 1983, for the first time, it was determined that the association should field a "teener" team which would compete in a larger league. Pursuant thereto, tryouts were to be held so that all youngsters would have an opportunity to make the team. Bowser asked for assistance in conducting the tryouts, and several members offered to help.

The tryouts were held on April 9, 1983. Bowser and four other members of the association conducted them. During batting practice, the batters positioned themselves behind home plate and approximately five feet from the backstop so as to eliminate the need for a catcher. Except for the pitcher, the batter and the "on-deck batter," the candidates for the team were scattered about the infield and outfield to field the balls hit by the batter. Most of the adults who were serving as coaches and evaluators were standing along the right side of the diamond, near the players' bench, in order to observe the batters and the fielders.

Bowser testified that he had not been the person who suggested that tryouts be performed in this manner, although he did not object to the procedure. He stated that his duties were to ensure that each player was evaluated. For this purpose, Bowser kept track of the roster and called players in from the field to bat. During most of the tryouts, he had been located behind the backstop. After about two hours, however, he moved to the vicinity of the players' bench, where the group of coaches and evaluators were standing. After standing in that area for a minute or so, Bowser turned toward the outfield to call in two more players. As he turned back toward the batter, he was struck in the eye by a batted ball.

At the completion of the plaintiffs' testimony on liability, the court granted the association's motion for a compulsory nonsuit on the grounds that (1) Bowser could not maintain a suit against the unincorporated association of which he was a participating member; (2) as a matter of law Bowser had assumed the risk of being struck by a batted ball; and (3) neither the association nor the additional defendant had violated a duty of care owed to Bowser.

In reviewing the propriety of a compulsory nonsuit, this Court will view the evidence in a light most favorable to the plaintiff[ ] and give [him] the benefit of every reasonable inference arising therefrom. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 371, 372 A.2d 736, 740 (1977); Barney v. Foradas, 305 Pa.Super. 404, 407, 451 A.2d 710, 712 (1982); Adams v. Euliano, 299 Pa.Super. 348, 349-350, 445 A.2d 788, 789 (1982). A nonsuit can only be entered in a clear case. Barney v. Foradas, supra; Adams v. Euliano, supra; Peair v. Home Association of Enola Legion No. 751 287 Pa.Super. 400, 403-404, 430 A.2d 665, 666-667 (1981).

Brouse v. Hauck, 330 Pa.Super. 58, 60, 478 A.2d 1348, 1350 (1984). On the facts presented in the instant case, however, we think it clear that Bowser was not entitled to recover against the association for his injuries. Therefore, we affirm the order of the trial court.

In DeVillars v. Hessler, 363 Pa. 498, 70 A.2d 333 (1950), the plaintiff had been a member and secretary of an unincorporated fraternal association which operated a concession for the sale of food at a county fair. The plaintiff, who was engaged in preparing and dispensing food, was injured when a propane gas steam table exploded while plaintiff was attempting to light the burners. The plaintiff commenced an action against the association, its officers and several of its members, but the trial court entered judgment on the pleadings for the defendants. On appeal, the Supreme Court reviewed the decided cases and concluded:

The real question in the case therefore resolves itself into whether this action can be maintained against the association on the ground that the members who allegedly committed the tort were acting on its behalf and for its benefit. The weakness of plaintiffs' case, from the legal standpoint, arises from the fact that not only was the wife plaintiff an active participant in the general conduct of the concession at the fair but she voluntarily assumed a participating role in the operation of the steam table. Being thus cooperatively engaged with those who were allegedly guilty of negligence she became subject to the legal principle that where persons join in the prosecution of a common enterprise there is thereby created a mutual relationship of agency among them, with the result that the negligence...