Gamble v. Bost

• Decision Date: 25 April 1995
• Docket Number: No. WD,WD
• Citation: 901 S.W.2d 182
• Parties: Lisa GAMBLE, Appellant, v. Travis BOST, et al., Respondent. 49185.
• Court: Missouri Court of Appeals

Page 182

901 S.W.2d 182

Lisa GAMBLE, Appellant, v. Travis BOST, et al., Respondent.

No. WD 49185.

Missouri Court of Appeals,

Western District.

April 25, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 30, 1995.

Application to Transfer Denied July 25, 1995.

Ronald R. McMillin, Jefferson City, for appellant.

Harold A. Walther, Columbia, for respondent Gamble.

John G. Schultz, Kansas City, for respondent Marriott Corp.

Ralph M. Humphreys, Jefferson City, for respondent Bost.

Before SPINDEN, P.J., and ULRICH and SMART, JJ.

SMART, Judge.

Lisa Gamble suffered a blow to the head from a bowling ball thrown by Travis Bost at a bowling alley owned by Marriott Corporation. She filed suit against both Bost and Marriott. After a jury verdict in favor of the defendants, Gamble filed a motion for new trial. The motion was granted as to Bost, but denied as to Marriott. Gamble appeals from the denial of her motion for a new trial as to Marriott, claiming that the trial court erred in submitting Instruction No. 9, an assumption of risk instruction, as it prejudiced her claim not only as to Bost but also as to Marriott. Bost also appeals, claiming that the trial court erred in overruling his motion for directed verdict and in sustaining Gamble's motion for a new trial. The order of new trial is affirmed as to Bost and denial of new trial as to Marriott is reversed.

On December 6, 1987, Lisa Gamble and her husband, Kevin Gamble, were guests at Marriott's Tan-Tar-A resort at the Lake of the Ozarks. Gamble and her husband went to the resort's bowling alley along with her parents and some friends. The bowling alley was constructed on two levels, with a reception and ball storage area approximately 8 to 10 feet above a lower level containing the bowling lanes, scorer's tables and spectator seats. A railing separated the two levels.

Gamble was sitting in her husband's lap at the scorer's table in the lower section of the alley attempting to learn to keep score. She was struck in the head by a bowling ball. The ball had been thrown from the upper level of the alley by 11 year old Travis Bost, a guest at the resort. Apparently, the ball had somehow slipped out of Bost's hands as he was testing it. It hit the railing and then hit Gamble and her husband. Gamble sustained head and jaw injuries.

In the interest of clarity, Bost's appeal will be addressed first. He claims that the trial court erred in overruling his motion for directed verdict and in sustaining Gamble's motion for new trial. He contends that: (1) Gamble failed to plead or prove a submissible case in that liability for her injury must be based on reckless, not negligent, conduct; (2) there was no error in submitting Instruction No. 9, an instruction on assumption of risk; and (3) even if it were error to submit Instruction No. 9, that error was not prejudicial.

The trial court did not specify precisely the grounds on which the new trial was granted, stating only that the motion was sustained as to Bost, "on the basis of instruction No. 9." The motion for new trial had asserted three different grounds of error with regard to instruction No. 9. The lack of precision violates Rule 78.03, requiring that an order allowing a new trial "shall specify" the ground on which the new trial is granted. See Greek by Greek v. Midwestern Tel., Inc., 880 S.W.2d 364, 365 (Mo.App.1994); Southern Missouri Bank v. Fogle, 738 S.W.2d 153, 156 (Mo.App.1987). This does not render such order ineffective, however. Blue Cross Health Servs. v. Sauer, 800 S.W.2d 72, 75 (Mo.App.1990). A rebuttable presumption of error is created and the burden shifts to respondent Gamble to support the order. Id. Respondent Gamble meets this burden if it is demonstrated that her motion could be sustained on grounds contained in the motion for new trial. C.M. v. K.M., 878 S.W.2d 55, 56 (Mo.App.1994); Southern Missouri Bank v. Fogle, 738 S.W.2d at 157. She is confined to errors mentioned in the motion for new trial and in her brief. C.M. v. K.M., 878 S.W.2d at 56.

Bost's contention that he should have been granted a directed verdict must contend with a difficult standard of review. A directed verdict is a drastic action and should only be granted if reasonable persons could not differ as to the outcome of the case. Hawkins v. Compo, 781 S.W.2d 128, 133 (Mo.App.1989). Review of the denial of a motion for directed verdict is treated as a question of law. Id. In reviewing the denial of a directed verdict, the evidence presented at trial is examined in the light most favorable to non-moving party in order to discover whether or not substantial evidence was introduced to prove facts essential to that party's claim. Bequette v. Buff, 862 S.W.2d 921, 922 (Mo.App.1993).

Standard of Care of Injuries Arising out of Bowling

Bost's initial argument is that Gamble failed to plead or prove a submissible case because liability for her injury must be based upon reckless, not negligent, conduct. It is true that Missouri case law holds to a reckless standard for injuries arising out of a plaintiff's participation in athletic competition. In Ross v. Clouser, 637 S.W.2d 11 (Mo. banc 1982), the plaintiff was injured while participating in a softball game. The Missouri Supreme Court held that "personal injuries incurred during athletic competition must be predicated on recklessness, not mere negligence...." Id. at 13-14. The court found Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258 (1975) to be persuasive. In Nabozny the court noted that the law should not be an unreasonable burden on active participation in sports and stated:

[T]his court believes that when athletes are engaged in an athletic competition; all teams involved are trained and coached by knowledgeable personnel; a recognized set of rules governs the conduct of the competition; and a safety rule is contained therein which is primarily designed to protect players from serious injury, a player is then charged with a legal duty to every other player on the field to refrain from conduct proscribed by a safety rule. A reckless disregard for the safety of other players cannot be excused.

Nabozny v. Barnhill, 334 N.E.2d at 260-61.

The court in Ross found that assumption of risk is an affirmative defense to a charge of reckless conduct. Ross v. Clouser, 637 S.W.2d at 14 (citing Restatement (Second) of Torts, §§ 496A and 503 (1965)). In Martin v. Buzan, 857 S.W.2d 366 (Mo.App.1993), another case involving softball, the court, in following Ross, declined an invitation to abolish the assumption of risk defense and reaffirmed the vitality of the reckless standard as applied to injuries sustained during athletic competition. Other courts have generally adhered to a reckless standard and applied it to a variety of sports. See Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir.1979) (professional football); Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94 (1989) (hockey); Dotzler v. Tuttle, 234 Neb. 176, 449 N.W.2d 774 (1990) (basketball); Connell v. Payne, 814 S.W.2d 486 (Tex.App.1991) (polo).

Bowling, however, does not involve contact among the participants. The foreseeable risks in bowling differ in kind and degree from those traditionally associated with contact sports. Although the question of the proper standard for bowling has not been addressed, courts have examined the reckless standard as applied to those sports where contact is the exception, not the rule. In Novak v. Virene, 224 Ill.App.3d 317, 166 Ill.Dec. 620, 586 N.E.2d 578 (1991), the court declined to apply the reckless standard in a case involving a downhill skiing collision. Distinguishing Nabozny and its progeny, the court stated while there was a possibility of collisions in downhill skiing, "by one's participation in the sport, one does not voluntarily submit to bodily contact with other skiers, and such contact is not inevitable." Novak v. Virene, 166 Ill.Dec. at 622, 586 N.E.2d at 580. The court found that the concern expressed in Nabozny over whether applying a negligence standard would burden participation in the sport, was inapplicable to downhill skiing. Id. The court held that an ordinary negligence standard was to be used, concluding that, "[m]any activities in life are fraught with danger, and absent a specific assumption of risk, one may obtain damages when injured by another's negligence." Id. See also Bangert v. Shaffner, 848 S.W.2d 353 (Tex.App.1993) (declined to apply reckless standard to parasailing accident).

In the instant case, Gamble was hit in the head by a bowling ball. This is not the type of injury inevitably associated with bowling as inherent in the sport. Those who enter a bowling alley do not voluntarily submit to the risk of such an occurrence as a necessary incident of bowling. The policy considerations advanced in Ross and Nabozny are not present here. We see no burden on participation in bowling imposed by using a negligence standard. Accordingly, we hold that negligence is the proper standard to be applied in this case and that Bost owed Gamble a duty of ordinary care.

Sufficiency of the Evidence

Bost also contends that there was not a submissible case even as to negligence, pointing out that even Gamble's witnesses referred to the incident as an "accident." This contention is mere semantics and is without merit. The statements made by Gamble's witnesses as to the "accident" could reasonably be viewed merely as an acknowledgement that Travis Bost had no malicious design to harm Mrs. Gamble. The court, in any event, is not bound by the phraseology used by the witnesses but by the facts presented in their testimony. Upon review of the denial for directed verdict, the evidence will be viewed in the light most favorable to Gamble, Bequette v. Buff, 862 S.W.2d at 922, and we find that there was sufficient evidence that a reasonable person could find the existence of negligence. The evidence demonstrated that the bowling ball was...