Fox v. Board of Sup'rs of Louisiana State University and Agr. and Mechanical College

• Decision Date: 19 March 1990
• Docket Number: Nos. CA,s. CA
• Citation: 559 So.2d 850
• Parties: 59 Ed. Law Rep. 1242 Timothy FOX, Denver C. Fox and Nora Palmer Fox v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, et al. 89 0486-87, CA 88 1981.
• Court: Court of Appeal of Louisiana — District of US

Page 850

559 So.2d 850

59 Ed. Law Rep. 1242

Timothy FOX, Denver C. Fox and Nora Palmer Fox v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, et al.

Nos. CA 89 0486-87, CA 88 1981.

Court of Appeal of Louisiana First Circuit.

March 19, 1990.

On Rehearing April 25, 1990.

Paul Due and Charles Roberts, Baton Rouge, for plaintiffs-appellants, Timothy, Denver and Nora Fox.

Scott Kaiser, Baton Rouge, for defendant-appellee, Bd. of Supervisors of LSU Employers Cas. Co.

Dan West, Baton Rouge, for defendants-appellees, Pacific Employers Ins. Co. and St. Olaf College.

William Willard, Baton Rouge, for defendants-appellees, Audubon Indem. Co. and Illinois Nat. Ins. Co.

Robert J. Young, New Orleans, for defendant-appellee, American Empire Surplus Lines Ins. Co.

Steve Judice, Baton Rouge, for defendant-appellee, Genstar Indem. Co.

Jim Moore, Baton Rouge, for defendant-appellee, American Ins. Co.

Before CARTER, SAVOIE and ALFORD, JJ.

ALFORD, Judge.

This lawsuit arose out of an injury sustained by plaintiff/appellant, Timothy Fox, while playing rugby in the 1986 Louisiana State Rugby Club Annual Mardi Gras Invitational Rugby Tournament ("Tournament"). Mr. Fox, a student of St. Olaf College in Northfield, Minnesota, along with other members of his college rugby team left St. Olaf en route to the Tournament on Wednesday, February 5, 1986, traveling in "Winnebagos". Mr. Fox and his companions arrived in New Orleans on February 6, 1986, where they attended Mardi Gras festivities, finally arriving in Baton Rouge on February 7, 1986. They reached Baton Rouge at approximately 11:00 p.m. and immediately proceeded to a party allegedly hosted by the L.S.U. Rugby Club; this party lasted until approximately 2:00 a.m.

The St. Olaf Rugby team was scheduled to play two matches on February 8, 1986 at 9:00 a.m. and 3:00 p.m. During the last few minutes of the second game, Mr. Fox attempted to make a tackle with his head in a lowered position. He missed his opponent and struck the ground. As a result of the accident, Mr. Fox sustained a broken neck and is now a quadriplegic, confined to a wheelchair.

In the trial court, judgment was rendered dismissing the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College ("L.S.U.") and its insurer, Employers Casualty Company ("Employers"), on a motion for summary judgment. Additionally, judgments were rendered dismissing St. Olaf College, and its insurers, Pacific Employers Insurance Company ("Pacific") and American Empire Surplus Lines Insurance Company ("American") on exceptions of lack of in personam jurisdiction. Appeals taken by Mr. Fox and his parents, Denver C. Fox and Nora Palmer Fox, from these judgments were consolidated and are addressed herein.

PROPRIETY OF SUMMARY JUDGMENT IN FAVOR OF L.S.U.

Plaintiffs appeal the trial court ruling granting summary judgment in favor of L.S.U. and Employers arguing that L.S.U. contributed to the injuries they suffered by negligently allowing the parade grounds to be used during the Tournament in a negligent manner, failing to ascertain whether teams invited to the Tournament were properly trained, coached or supervised, and, in permitting the scheduling of two games or matches in the same day. Plaintiffs additionally assign as error the granting of the motion by Employers to strike plaintiffs' demand for jury trial as to the insurer.

Summary judgment shall be rendered if the pleadings, depositions, answers to interratories, and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966; Lytell v. Goodyear Tire & Rubber Co., 439 So.2d 542 (La.App. 1st Cir.1983). When the evidence submitted on the motion leaves no relevant genuine issue of fact, and when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976). In the case sub judice, we can find no factual dispute regarding the circumstances surrounding L.S.U.'s allegedly negligent activities. Therefore, the remaining issue before this court, the reasonableness of L.S.U.'s conduct, is one of law. See Johnson v. Edmonston, 383 So.2d 1277 (La.App. 1st Cir.1980).

Randy Lee Mast testified by deposition that as Assistant Director of the Division of Leisure Sports, he is director of club sports and aquatic facilities. Mr. Mast described the sport clubs which he oversees as basically "student group[s] who monitor their own activities." In his affidavit, Mr. Mast stated that the L.S.U. Athletic Department has no relation with club sports; participants in club sports are voluntary and are not recruited, paid or given athletic scholarships. Rugby club members purchase their own uniforms, shoes and equipment.

The Division of Leisure Sports provided the rugby club with campus facilities for practice and playing matches, access to some basic office supplies (such as: stationery, limited telephone use, rubber bands, paper clips, limited secretarial assistance and access to a photocopier), occasional use of rugby balls, chalk, tape measures and field-marking cones, and limited funding for tournament entry fees and out-of-town travel expenses. For the 1985-86 school year, the Division of Leisure Sports provided the rugby club with approximately $1,200.00 for such expenses. Minimal requirements were imposed by L.S.U. on the rugby club as on other "recognized student organizations"; ¹ such as, the submission of a club "constitution", submission of a list of current officers, and the procurement of a faculty advisor. The Division of Leisure Sports also required sport clubs to maintain a minimum of fifteen members.

Aside from these requirements and assistance, the rugby club was self-governed, self-sustaining and self generating. The rugby club did not have either a coach or an instructor. ² The rugby club itself determined how often to practice and which activities, matches or tournaments to participate in. With regard to tournaments sponsored by the L.S.U. rugby club, the members were solely responsible for its organization and operation, and, proceeds from the Tournament belonged to the club to be spent at the discretion of the club officers.

Mr. Mast admitted that rugby, being a contact sport, provides a high likelihood of injury to participants, and that proper training and conditioning serve to reduce this risk. John Anderson, an athletic trainer in the L.S.U. Athletic Department, testified by deposition as to the training procedures used by L.S.U. with respect to its football team, as well as the warnings given to players to prevent injuries; the witness stated that he had no expertise or knowledge of rugby. Plaintiffs offered the affidavit of L. Stanley Shulman, Director of the Athletics and Sports Safety Division of Inner-City Testing & Consulting Corporation in Mineola, New York, in support of their allegations. Mr. Shulman offered his opinion that L.S.U. had a duty to require teams invited to play in the Tournament to have a "trainer/manager/coach" ecause the supervision of a coach "would eliminate the degree of exposure to dangerous conditions" created by lack of rest or conditioning. Mr. Shulman further opined that "requiring and/or requesting that each of the teams play two games in one day is not in accordance with good and accepted practices and procedures in athletic competition" since participants are "extremely tired, prone to making mistakes, and more susceptible to injury" after playing one match. To the extent that Mr. Shulman's affidavit expresses conclusions of law as to the duty owed by L.S.U. to Mr. Fox, it cannot be considered in deciding the motion for summary judgment. See Brock v. Newman, 543 So.2d 84 (La.App. 1st Cir.), writ denied, 548 So.2d 1251 (La.1989); Big S Trucking Co., Inc. v. Gervais Favrot, Inc., 450 So.2d 369 (La.App. 1st Cir.1983).

Plaintiffs essentially contend that L.S.U. had a duty to require that visiting rugby teams participating in the Tournament held by the L.S.U. rugby club be screened to ensure that each team had sufficient coaching and/or athletic training. Plaintiffs contend that L.S.U.'s breach of this duty resulted in the use of its facilities by incompetent players and the playing of rugby matches beyond the abilities and endurance of these players, culminating in Mr. Fox's injuries. Plaintiffs have been unable to cite and independent research has failed to reveal, any instance where such a duty has been imposed on a university. ³

After careful consideration of the record presented herein, we hold that, in the context of a leisure or club sport, a university has no affirmative duty to ascertain or inquire as to the level of fitness or preparedness of a visiting team participating in a tournament hosted by the university's home team or club. In so holding, we find it unnecessary to decide whether L.S.U. can be held liable for the negligent actions of a leisure sport club, because we have determined that in any event, the rugby club did not owe Timothy Fox the duty alleged.

Having decided that the dismissal of L.S.U. on motion for summary judgment was proper, appellants' assignment of error alleging entitlement to a jury trial as to L.S.U.'s insurer has been rendered moot.

IN PERSONAM JURISDICTION OVER ST. OLAF COLLEGE

Plaintiffs/appellants assign as error the dismissal of St. Olaf College on the basis of lack of personal jurisdiction arguing that St. Olaf College has sufficient contacts with Louisiana to require it to defend plaintiffs' lawsuit in this state's courts. Plaintiffs cite revenue received from Louisiana students, parents and alumni, the mailing of publications to Louisiana citizens, and...