Connell v. Payne, 05-90-00840-CV
| Decision Date | 26 July 1991 |
| Docket Number | No. 05-90-00840-CV,05-90-00840-CV |
| Citation | 814 S.W.2d 486 |
| Parties | Alan B. CONNELL, Jr., Appellant, v. Robert B. PAYNE, Jr. et al., Appellees. |
| Court | Texas Court of Appeals |
Bill Boyd, of Boyd, Veigel & Hance, P.C., McKinney, for appellant.
Jackson D. Wilson, II and Richard L. Crozier, of Page & Addison, P.C., Dallas, for appellee Willow Bend Polo and Hunt Club.
Lori B. Bellows and John P. Greenan, of Hopkins & Sutter, Dallas, for appellee Robert B. Payne, Jr.
Before BAKER, LAGARDE and MALONEY, JJ.
This is a case of first impression in Texas. Alan B. Connell, Jr. suffered injuries when Robert B. Payne, Jr. swung a polo mallet and struck him in the eye during a match at Willow Bend Polo and Hunt Club. The jury's verdict was favorable to Payne and Willow Bend. The trial court entered a take-nothing judgment against Connell. Connell contends the trial court erred because it refused to submit jury questions on ordinary negligence and gross negligence. He also contends the jury's answers to the submitted questions are against the great weight and preponderance of the evidence. We affirm the trial court's judgment.
All parties agree polo is a dangerous game. The risk of injury is high. It is common for injuries to occur even while players diligently follow the rules. To promote the safety of horse and rider, the game of polo stipulates certain "right-of-way" rules. One rule gives the right-of-way to the player closest to the parallel "line of the ball." A player who tries to take the ball away from an opponent having the line of the ball may not approach the opponent's horse at any angle greater than forty-five degrees. If two players are along the line of the ball, one player may "ride the opponent off the line." That is, the player may ride toward the opponent. The opponent must move away from the line of the ball to avoid a collision. The opponent loses the right of possession.
Connell and Payne were on opposite teams in the match. During a play, both Connell and Payne rode to intercept the ball. Each tried to make a shot to benefit his team. Almost simultaneously, each swung his mallet at the ball. Connell's mallet struck the ball. Payne's mallet struck Connell in the eye. Connell lost the sight in that eye.
Connell sued Payne and Willow Bend for his injuries. He alleged Payne intentionally or recklessly caused his injury. He also alleged Payne was negligent and his conduct was gross negligence. He asserted Payne had a reputation for reckless play. He alleged Willow Bend knew of Payne's reputation and was negligent in allowing Payne to play. He also alleged Payne's and Willow Bend's negligence proximately caused his damages.
The parties tried the case to a jury. The trial court submitted a jury question that asked whether Payne intentionally or recklessly caused Connell's injury. The court also submitted jury questions that asked whether Willow Bend or Connell was negligent. The jury answered each of these questions "no." Based on these answers, the trial court entered a take-nothing judgment against Connell.
Connell asserts three points of error. In points one and two, he contends the trial court erred in failing to submit jury questions on whether Payne was negligent and whether Payne's conduct was gross negligence. Connell argues the trial court erred by applying an intentional or reckless standard.
No Texas court has decided the issue of the legal duty owed by one participant to another participant in a competitive contact sport. Connell argues the proper standard is negligence. He contends a recklessness standard holds him to an unreasonably high burden of proof. Connell contends if a participant in a competitive contact sport violates a safety rule, the injured party should have to prove only ordinary negligence. We disagree.
By participating in a dangerous contact sport such as polo, a person assumes a risk of injury. The risk involved in competing in contact sports is the basis for the historical reluctance of courts to allow players to recover damages for injuries received while participating in a competitive contact sport unless one participant deliberately injures another. See Kuehner v. Green, 436 So.2d 78, 81 (Fla.1983) (Boyd, J., concurring).
Assumption of risk was once an affirmative defense in Texas tort cases. It completely barred recovery. The Texas Supreme Court has abolished the defense in ordinary negligence actions. The factfinder in a negligence action now determines the reasonableness of an actor's conduct in confronting a risk under comparative responsibility principles. TEX.CIV.PRAC. & REM.CODE ANN. § 33.001-.016 (Vernon 1986 and Supp.1991); Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex.1975). The court in Farley reasoned the Legislature, by adopting comparative negligence, showed an intention to apportion negligence rather than completely bar recovery. The Farley court concluded assumption of risk was incompatible with the rationale behind the comparative negligence scheme because the defense operated as a complete bar. Farley, 529 S.W.2d at 758. The Farley court retained assumption of risk as a defense in strict liability and express consent cases. Gensco, Inc. v. Canco Equip., Inc., 737 S.W.2d 345, 348 (Tex.App.--Amarillo 1987, no writ). It reasoned the rationale for abolishing the defense in negligence actions did not apply in strict liability and express consent cases. Farley, 529 S.W.2d at 758.
The Ohio Supreme Court recently considered a similar issue. See Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990). That court reasoned a mere showing of negligence is not enough to allow recovery in sport or recreational activity. We agree. We join the authorities cited in Marchetti. A participant in a competitive contact sport expressly consents to and assumes the risk of the dangerous activity by voluntarily participating in the sport. We hold that for a plaintiff to prevail in a...
To continue reading
Request your trial
-
Ritchie-Gamester v. City of Berkley, Docket No. 109633., Calendar No. 3.
...Before Hathaway, Texas had recognized a "reckless or intentional" standard of care for "competitive contact sports." Connell v. Payne, 814 S.W.2d 486, 489 (Tex.App., 1991). The Hathaway court extended this standard to golf, While the genteel game of golf can hardly be described as a "compet......
-
Crawn v. Campo
...("where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity"); Connell v. Payne, 814 S.W.2d 486, 488-89 (Tex.Ct.App.1991) ("[a] participant in a competitive contact sport expressly consents to and assumes the risk of the dangerous activity......
-
Pfister v. Shusta
...Knight v. Jewett (1992), 3 Cal.4th 296, 336, 834 P.2d 696, 722, 11 Cal.Rptr.2d 2, 28 (informal touch football); Connell v. Payne (Tex.Ct.App.1991), 814 S.W.2d 486, 488 (polo match); Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 97, 559 N.E.2d 699, 701 (child's game of kick the can); Dotzler......
-
Lestina v. West Bend Mut. Ins. Co.
...Township High School Dist. No. 214, 84 Ill.App.3d 723, 40 Ill.Dec. 456, 459, 406 N.E.2d 157, 160 (Ill.App.Ct.1980); Connell v. Payne, 814 S.W.2d 486, 488 (Tex.Ct.App.1991). I would adopt the rationale of the majority rule and hold that a participant in a contact sport such as soccer is liab......