Dotzler v. Tuttle

• Decision Date: 05 January 1990
• Docket Number: No. 88-238,88-238
• Citation: 449 N.W.2d 774,234 Neb. 176
• Parties: Joseph DOTZLER, Appellant, v. Bruce TUTTLE, Appellee.
• Court: Nebraska Supreme Court

Page 774

449 N.W.2d 774

234 Neb. 176

Joseph DOTZLER, Appellant, v. Bruce TUTTLE, Appellee.

No. 88-238.

Supreme Court of Nebraska.

Jan. 5, 1990.

Syllabus by the Court

1. Actions: Torts: Negligence. A participant in a game involving a contact sport is liable for injuries in a tort action only if his or her conduct is such that it is either willful or with a reckless disregard for the safety of the other player, but is not liable for ordinary negligence.

2. Trial: Expert Witnesses: Appeal and Error. Generally, the admission of evidence from expert witnesses is a matter left to the discretion of the trial court, and its ruling will be upheld absent an abuse of that discretion.

3. Trial: Expert Witnesses. Expert testimony is normally admissible only if it will be of assistance to the jury in its deliberations and relates to an area not within the competency of ordinary citizens.

4. Jury Instructions: Appeal and Error. There is no prejudicial error in jury instructions which, when read together, correctly state the law, are not misleading, and adequately cover the issues.

5. Negligence: Torts: Words and Phrases. Recklessness is the disregard for or indifference to the safety of another or for the consequences of one's act. Conduct is in reckless disregard to the safety of another if the actor intentionally does an act, or intentionally fails to do an act which it is his or her duty to another to do, knowing or having reason to know of facts which would lead a reasonable person to realize not only that his or her conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his or her conduct negligent. Recklessness differs from intentional wrongdoing in that while the act must be intended by the actor in order to be considered reckless, the actor does not intend to cause the harm which results from the act.

6. Jury Instructions: Appeal and Error. The meaning of an instruction, not the phraseology, is the important consideration, and a claim of prejudice will not be sustained when the meaning of the instruction is reasonably clear.

7. Jury Instructions: Appeal and Error. Jury instructions should be confined to the issues found in the pleadings and which find support in the evidence. Generally, it is error to submit to the jury an issue which is not sustained by the evidence.

Thomas M. White, of Fitzgerald, Schorr, Barmettler & Brennan, Omaha, for appellant.

Joseph E. Jones and Kevin L. Reiner, of Fraser, Stryker, Vaughn, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellee.

HASTINGS, C.J., and BOSLAUGH, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

Plaintiff, Joseph Dotzler, sued the defendant, Bruce Tuttle, for injuries arising out of a collision between them during a "pickup" basketball game. The trial court sustained defendant's demurrer as to plaintiff's cause of action for negligence; the jury returned a verdict in favor of the defendant on the cause of action involving an allegation of recklessness. Plaintiff appeals.

Plaintiff assigns as error the actions of the trial court in (1) sustaining defendant's demurrer as to plaintiff's cause of action in negligence; (2) sustaining defendant's motion in limine excluding the testimony of plaintiff's expert witness; (3) instructing the jury that plaintiff, in order to meet his burden of proof, must establish that defendant acted with intent; (4) failing to instruct the jury that intent was not a part of plaintiff's burden of proof; (5) giving an instruction defining negligence and explaining the relationship between negligence and recklessness without defining intent; and (6) instructing that contributory negligence is a defense to recklessness.

Plaintiff and defendant were playing on opposing teams in a pickup basketball game during the noon hour at the Omaha Southwest YMCA on December 28, 1984. The two parties were not acquainted and had not played basketball against each other before.

It was plaintiff's testimony that he had just made a shot at the basket and moved back to play defense. He stated that he was standing near the top of the key when he saw a blur and felt a shove or push on his chest. The force of the collision sent him flying backward 19 or 20 feet, causing him to land near the baseline. Reaching back to break his fall, he fractured both of his wrists when he landed on the floor.

Plaintiff's brother Ron was playing on the same team with the defendant. Ron testified that he saw the plaintiff standing at about the free throw line and that the defendant ran to the plaintiff and the defendant's hands came out and pushed the plaintiff. The witness said he went up to the defendant immediately, and the latter said that "he's been doing it to me the whole game and I'm getting sick and tired of it."

The defendant testified that he was coming down the court as if on a fast break, trying to get open for a pass. He said that he was not particularly aware of the plaintiff's presence. He stated that the two of them "banged together." He denied that he pushed the plaintiff and denied telling the plaintiff's brother that he was tired of being pushed around by the plaintiff.

Another witness, Frederick Stehlik, was on the sideline and saw the plaintiff at approximately halfway between the basket and the free throw line. Stehlik was not sure whether the plaintiff was stationary or moving. Stehlik did see the ball being brought down the court and saw the defendant moving. A player came across the court and obscured the witness' vision for just a split second, and the next thing he saw was the plaintiff falling.

Plaintiff contends that the trial court erred in sustaining the demurrer to his negligence cause of action. At issue is whether an individual participating in a contact sport has a cause of action against another participant because of injuries sustained as a result of ordinary negligence on the part of that other participant.

The majority of jurisdictions which have addressed this issue have held that suit by the injured participant, if not based on intentional infliction of injury, must be based on reckless disregard of safety; an allegation of negligence is not sufficient to state a cause of action.

The plaintiff in Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94 (1989), was "butt-ended" in the abdomen with a hockey stick by the defendant. The court held that participants in an athletic event owe a duty to other participants to refrain from reckless misconduct, and liability may result from injuries caused to a player by reason of the breach of that duty. According to the court:

The problem of imposing a duty of care on participants in a sports competition is a difficult one. Players, when they engage in sport, agree to undergo some physical contacts which could amount to assault and battery absent the players' consent. Restatement (Second) of Torts § 50 comment b (1965). The courts are wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition. See, e.g., Ross v. Clouser, 637 S.W.2d 11, 14 (Mo.1982). Nevertheless, "some of the restraints of civilization must accompany every athlete on to the playing field." Nabozny v. Barnhill, 31 Ill.App.3d 212, 215, 334 N.E.2d 258 (1975). "[R]easonable controls should exist to protect the players and the game." Ross v. Clouser, supra.

The majority of jurisdictions which have considered this issue have concluded that personal injury cases arising out of an athletic event must be predicated on reckless disregard of safety. See, e.g., Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516, 524 (10th Cir.1979); Nabozny v. Barnhill, supra; Ross v. Clouser, supra at 14; Kabella v. Bouschelle, 100 N.M. 461, 465, 672 P.2d 290 (1983). Restatement (Second) of Torts § 500 comments e & g (1965).

We adopt this standard. Allowing the imposition of liability in cases of reckless disregard of safety diminishes the need for players to seek retaliation during the game or future games. See Hackbart v. Cincinnati Bengals, Inc., supra at 521. Precluding the imposition of liability in cases of negligence without reckless misconduct furthers the policy that "[v]igorous and active participation in sporting events should not be chilled by the threat of litigation." Kabella v. Bouschelle, supra.

Gauvin, supra, 404 Mass. at 454, 537 N.E.2d at 96-97.

Recovery of damages for injuries sustained in an informal game of tackle football was sought in Kabella v. Bouschelle, 100 N.M. 461, 672 P.2d 290 (1983). Following the rationale of Restatement (Second) of Torts § 50, comment b. (1965), the court found that voluntary participation in a football game constitutes an implied consent to the normal risks accompanying bodily contact permitted by the rules of the sport because such risks are foreseeable or inherent to the playing of the game. However, noted the court, participation in a game involving bodily contact does not constitute consent to contacts which are prohibited by the rules or usages of the sport if such rules are designed for the protection of the participants and not merely to control the play of the game. Holding that participants in sports activities may not recover in tort from a fellow player under a pure negligence theory, the court stated:

Vigorous and active participation in sporting events should not be chilled by the threat of litigation. The players in informal sandlot or neighborhood games do not, in most instances, have the benefit of written rules, coaches, referees or instant replay to supervise or re-evaluate a player's actions.

Kabella, supra at 465, 672 P.2d at 294.

In Ross v. Clouser, 637 S.W.2d 11 (Mo.1982), the plaintiff third baseman sustained a severe knee injury during a softball game when the defendant runner, despite the fact that the plaintiff was not at the time blocking the base path, ran very fast toward the...