Fiske v. MacGregor, Div. of Brunswick, 82-413-A

• Decision Date: 21 July 1983
• Docket Number: No. 82-413-A,82-413-A
• Citation: 464 A.2d 719
• Parties: 13 Ed. Law Rep. 359, 36 UCC Rep.Serv. 1128 Kelly FISKE v. MacGREGOR, DIVISION OF BRUNSWICK et al. ppeal.
• Court: Rhode Island Supreme Court

Page 719

464 A.2d 719

13 Ed. Law Rep. 359, 36 UCC Rep.Serv. 1128

Kelly FISKE v. MacGREGOR, DIVISION OF BRUNSWICK et al.

No. 82-413-Appeal.

Supreme Court of Rhode Island.

July 21, 1983.

Leonard DeCof, DeCof & Grimm, Providence, for plaintiff.

Joseph V. Cavanagh, Higgins, Cavanagh & Cooney, Providence, for defendants.

OPINION

MURRAY, Justice.

This is an appeal from a Superior Court judgment awarding the plaintiff $2,100,000, plus interest, for personal injuries he sustained while playing in a high school football game. The plaintiff cross-appeals from that portion of the judgment wherein the trial justice, pursuant to our comparative-negligence statute, reduced the damages awarded in proportion to the amount of negligence attributable to the plaintiff. The damages reduced were awarded for the strict-liability, breach-of-implied-warranty, and negligence counts.

During the 1974 football season, plaintiff, Kelly Fiske, was a starting defensive back for the Cranston High School East football team. On the night of November 8, 1974, he participated in an interscholastic contest that pitted Cranston East against the Cumberland High School football team. With less than four minutes remaining in the first half of the game, plaintiff attempted to tackle an opposing ball carrier who was running for a touchdown. The two players collided and the following resulted: The ball carrier somersaulted into the end zone and scored a touchdown. The plaintiff, his tackle attempt unsuccessful, lay motionless on the ground, suffering from a spinalcord injury that rendered him permanently quadriplegic.

On September 22, 1975, plaintiff filed a complaint claiming that his injury was proximately caused by a defective design of the football helmet he had been wearing. The plaintiff's complaint alleged three counts against defendant, MacGregor Manufacturing Company, sounding in negligence, breach of implied warranty, and strict liability in tort. He also claimed his injury was proximately caused by the negligent coaching and supervision by the varsity football coach of Cranston East and the Cranston School Committee.

This case endured through six years of discovery and pretrial motions before a jury was finally impaneled. The trial lasted for twenty-one days during which time thirty-six witnesses took the stand. After deliberating for three days, the jury, on special interrogatories, returned verdicts in favor of the coach and the school committee. The jury found against defendant on both the strict-liability and the breach-of-implied-warranty counts and answered that plaintiff had not assumed the risk of his injury. With respect to the negligence count, the jury found that "of all the negligence which proximately caused plaintiff's injuries," 40 percent was attributable to plaintiff and 60 percent was attributable to defendant. The total damages suffered by plaintiff were found to be $3,500,000. The trial justice reduced this award by the 40 percent plaintiff was found to be negligent. As a result, judgment was entered for plaintiff against defendant in the amount of $2,100,000, plus interest. The defendant now appeals from that portion of the judgment which found it liable for plaintiff's personal injuries. The plaintiff appeals from that portion of the judgment which reduced the jury's award by the percent plaintiff was found to be negligent. ¹

I Motion for a Directed Verdict

The defendant first contends that the trial justice erred by not granting defendant's motion for a directed verdict at the close of all the evidence. The defendant alleges that plaintiff failed to adduce any competent legal evidence that the helmet was defective and unreasonably dangerous.

The controversy of this case revolves around the design of the helmet that was manufactured by defendant and worn by plaintiff on the night of his injury. The injury was described by the experts who testified as an axial-loading compression injury to the cervical spine. ² The experts explained that the injury occurs when force is applied to the crown of the head while the cervical spine is in a straightened position and the body is traveling forward on the same axis as the straightened cervical spine. Because the vertebra of the back cannot be compressed, the force applied to the crown of the head causes the vertebra in the cervical area to suffer a subluxation. ³ This subluxation or displacement puts a compression pressure on the cervical spine and results in the type of injury sustained by plaintiff.

The plaintiff presented experts who testified that the face mask of the helmet, because of its dimensions, worked as a brace to the degree that plaintiff was unable to flex his head forward. As a result, plaintiff's cervical spine remained in the straightened position necessary for axial loading to occur. In response to the question of what prevented plaintiff's neck from flexing forward, that is, out of the straightened position, one of plaintiff's experts responded:

"A. The only thing that I know that it is is the face mask.

"Q. How did that work?

"A. Okay. The face mask is constructed in a fashion that it comes out quite far and it goes down low. In other words, if an individual has this thing on his head and he tried to get full range of motion, he is going to be restricted by this particular member.

"Q. Pointing to the lower bar of the face mask?

"A. That is correct.

" * * *

"Q. Doctor, you said that he got this injury because he could not flex all the way forward like I am doing with my neck touching my chin; is that right?

"A. That's true.

"Q. What prevented him? You said it was the face mask. How did the face mask prevent him from flexing all the way forward.

"A. It impinged upon his chest. I can, if I were to go ahead and do this, I can touch my chest with my chin and in this particular case you cannot." ⁴

In contrast to the above testimony, defendant presented an expert witness who testified that it was his "firm belief that the helmet-face mask combination in no way contributed in a primary role to the injury that this youngster sustained." A second expert witness of defendant elaborated on this point:

"Q. Now when the cervical spine is in that alinement you described, susceptible to axial loading, does the neck have to be held by anything to produce this injury mechanism?

"A. No, the neck is not held by anything, the muscles have put it there and the muscles are also under tension, especially in anticipation of the tackle and simply keeping the muscles in that tense state and having the head in that position is sufficient, it is exactly the same, we talk about a basketball injury. The basketball and nothing else holds the tip of the finger in position, the tip of the finger can move any way it wants but when the ball comes and it hits it in the axial loading position you can pop the joint and the same is true when this accident happened. In other activities, in diving, hit a sandy bottom, hit the bottom of a pool or in gymnastics you fall straight down and you hit, your head contacts cement, you get exactly the same mechanism and there is nothing holding the head.

"Q. Did the face mask in this case have anything to do with alining the head or holding the head in this axial alinement position, or the neck I should say. I think I botched the question, suppose I start over again, did the face mask play any part in placing the cervical spine in this alinement?

"A. No. The alinement is a voluntary alinement involving a small amount of motion on the neck of nodding, the face mask has nothing to do with it at all."

It is well established in this jurisdiction that a motion for a directed verdict will be denied if there is evidence supporting the nonmoving party or there is evidence on which reasonable minds could differ. Marcotte v. Harrison, R.I., 443 A.2d 1225, 1229 (1982). In considering whether or not such evidence exists, this court must do what the trial justice is called upon to do in the first instance. We examine the evidence and all inferences reasonably flowing therefrom in the light most favorable to the nonmoving party. We do not consider the credibility of the witnesses or the weight of the evidence. Applying this test to the evidence to which we have just referred and to the plethora of other evidence adduced in this case, we believe that a jury question existed regarding whether or not plaintiff was injured because of the defective design of the helmet-face mask. Therefore, we conclude that defendant's motion for a directed verdict was properly denied.

II Motion for a New Trial

The defendant's next contention is that its motion for a new trial should have been granted because there is no competent evidence that supports the verdict.

As this court has said on numerous occasions and reiterated recently in Kelly v. C.H. Sprague & Sons Co., R.I., 455 A.2d 1302 (1983), the trial justice, when considering a motion for a new trial,

"assumes the role of a super-juror. He or she independently reviews all of the material evidence in light of the charge to the jury, passing upon the weight of the evidence and assessing the credibility of the witnesses. If the trial justice then determines that the evidence and the reasonable inferences to be drawn therefrom are so nearly balanced that reasonable persons could arrive at different results in deciding the case, the new trial motion must be denied. If, however, the trial justice concludes that the jury's verdict is against the fair preponderance of the evidence, he or she must grant the motion for a new trial." Id. 455 A.2d at 1304.

Once the trial justice has reviewed the evidence in the manner described, his ruling on a motion for a new trial is entitled to great weight and will not be disturbed on appeal unless material evidence has been overlooked or misconceived. Id.

In the present case, the written decision on the new-trial motion establishes that the trial justice thoroughly reviewed ...