Hoke v. Cullinan

• Decision Date: 22 November 1995
• Docket Number: No. 95-SC-042-DG,95-SC-042-DG
• Citation: Hoke v. Cullinan, 914 S.W.2d 335 (Ky. 1995)
• Parties: William HOKE, Appellant, v. R. Keith CULLINAN, Appellee.
• Court: Supreme Court of Kentucky

Page 335

914 S.W.2d 335

William HOKE, Appellant, v. R. Keith CULLINAN, Appellee.

No. 95-SC-042-DG.

Supreme Court of Kentucky.

Nov. 22, 1995.

Rehearing Denied Feb. 22, 1996.

Valerie W. Herbert, Ricketts & Travis, Louisville, for Appellant.

Robert R. deGolian, Henry A. Triplett, Bennett, Bowman, Triplett & Vittitow, Louisville, for Appellee.

LAMBERT, Justice.

The issue decided by the Court of Appeals and of which this Court granted discretionary review is whether a complaint alleging ordinary negligence is sufficient to state a claim for relief for injuries received in a sporting contest. By virtue of the trial court's dismissal of the case and the Court of Appeals' reversal, we must also decide whether the evidence precluded summary judgment, and whether the trial court acted prematurely.

What transpired between the parties is essentially undisputed. Appellant and appellee were engaged in a doubles tennis match, and at the time of the accident, were playing on opposing teams. In the course of a game and after completion of a point, appellant, standing at or near his own baseline, undertook to return a ball to the server, appellee's playing partner. Appellant struck the ball with his racket in the direction of the server but it struck appellee, who was standing near the net, about his left eye. The only facts which are at all disputed are whether appellant yelled "ball" in an effort to give warning when it appeared the ball might strike appellee, and whether appellant was angry over having misplayed the previous point and returned the ball too aggressively. From being struck with the tennis ball as aforesaid, appellee claims to have sustained personal injuries.

Appellee brought this civil action in the Jefferson Circuit Court seeking compensatory damages. He alleged that appellant "negligently and carelessly drove a tennis ball into plaintiff's face and injured his left eye and other parts of his body." Appellee also claimed "that at the time and place described, the tennis play had stopped and plaintiff was in a protected state and location." In his answer appellant denied the material averments of the complaint and the parties commenced the taking of one another's depositions. After the depositions of the parties had been taken and after certain written interrogatories had been propounded and answered, appellant moved to dismiss the complaint, pursuant to CR 12.02, for failure to state a claim upon which relief could be granted. In his memorandum accompanying the motion to dismiss, appellant argued that liability for injuries occurring in the course of a sporting contest required enhanced negligence as opposed to simple negligence and that a pleading which failed to allege recklessness or its equivalent failed to state a claim upon which relief could be granted.

Appellee argued otherwise. In response to the motion to dismiss, he contended that at the moment of the injury-producing incident play was not in progress and that rules of law requiring proof of recklessness for claims arising out of sports injuries were inapplicable. Appellee contended that under the prevailing circumstances he was required to plead and prove only simple negligence. In reply, appellant contended that the return of tennis balls from one side to the other was a regular part of the game, and that the legal standard with respect to imposition of civil liability was not suspended between points.

While the motion which brought the matter before the court was styled as a motion to dismiss pursuant to CR 12.02, in their memoranda, the parties extensively argued the deposition testimony. The court's order taking the matter under submission characterized it as a motion for summary judgment. In the trial court's memorandum opinion and order, there is a full discussion of the undisputed facts and a discussion of the law relating to civil liability for injuries occurring in sports contests. In what is clearly the sine qua non of the case from its perspective, the trial court said:

To begin, this Court does not believe that the fact the ball was not actually "in play" when Mr. Cullinan was injured is a significant factor in determining liability. Both Mr. Cullinan and Mr. Hoke agree that the game was not over at the time of the incident. There does not exist any doubt that Mr. Hoke was, in fact, returning the ball to the server of the opposing team at the time of the incident. Consequently, this Court will hold that the incident took place during the game and, thus, will determine the standard of care in relation thereto.

Thereafter, the court held that simple negligence was an insufficient basis upon which to predicate a claim of this type and that the law required proof of reckless or intentional conduct. Concluding, the trial court said:

[T]his court must find in favor of the defendant as the plaintiff has not shown any evidence to indicate that the defendant acted in either a reckless or intentional way in causing plaintiff's injuries.

Judgment was entered dismissing the complaint with prejudice.

Prior to continuing our journey through the procedure and substance of this case, and to avoid confusion which might otherwise arise, it is necessary to comment upon the case at the point of final judgment in the trial court. First, the record is without any indication that appellee was denied an opportunity to present all evidence he desired to present. The motion to dismiss was filed on June 14, 1993. Appellee responded by memorandum filed on July 14, 1993. The court granted appellant leave to file a reply memorandum by order entered on August 2, 1993. Notice of submission for final adjudication was given on August 3, 1993, and not until September 13, 1993, was the trial court's memorandum opinion and order entered. Neither before nor after judgment did appellee seek to present additional evidence by affidavit or otherwise. There is simply no suggestion that the trial court acted prematurely with respect to its decision.

Similarly, we recognize that the trial court may have erroneously stated that its ruling was on a motion to dismiss. In fact, and despite its characterization, the trial court rendered a summary judgment pursuant to CR 12.03 and CR 56. Contrary to the view of some, our decision in Steelvest, Inc. v. Scansteel Service Ctr., Ky., 807 S.W.2d 476 (1991), does not preclude summary judgment. Provided litigants are given an opportunity to present evidence which reveals the existence of disputed material facts, and upon the trial court's determination that there are no such disputed facts, summary judgment is appropriate.

Despite the substance of the trial court's memorandum opinion and order, the Court of Appeals took a highly restricted view of the issues which were before it. The Court of Appeals expressly refused to reach the question of summary judgment and limited its opinion to a determination of whether the complaint stated a claim upon which relief could be granted. The issue identified and decided by the Court of Appeals was as follows: "The question here is whether a pleading that alleges negligence in general terms is sufficient to encompass reckless conduct. We believe that it is." The Court of Appeals concluded by saying:

To summarize, conduct that evidences a reckless disregard for the safety of other persons is gross negligence. A general averment of negligence is sufficient to permit proof of recklessness. It was not necessary for Cullinan to allege that Hoke acted recklessly or in a grossly negligent manner in order to resist a CR 12.03 motion to dismiss his complaint for failure to state a claim upon which relief can be granted.

While the view of the Court of Appeals with respect to the pleading requirement is clear enough, we are unsure as to what it anticipated would occur upon remand. Inasmuch as the trial court had already stated that the undisputed evidence demonstrated appellant's entitlement to summary judgment, the content of the pleadings was virtually irrelevant. What was relevant and what the Court of Appeals declined to address was whether reckless disregard or some such elevated standard of negligence is minimally required for a plaintiff to prevail in cases such as this. The view of the Court of Appeals appears to have been that whatever legal standard was employed, the trial court acted prematurely in rendering summary judgment.

At the outset, we regard it as of little moment that the trial court failed to clearly distinguish between motions to dismiss for failure to state a claim and motions for summary judgment. Manifestly, CR 12.03 contemplates a relationship between these procedural vehicles and contemplates that a motion for judgment on the pleadings may be treated as one for summary judgment and disposed of in that manner. While the language of the memorandum opinion and order sounds as a CR 12.02 ruling, its substance is clearly otherwise. As stated hereinabove, the trial court applied the undisputed facts to what it believed to be the law with the result being that appellant was determined to be entitled to summary judgment.

Reckless disregard for the safety of others is the generally prevailing minimum standard for imposition of civil liability for personal injuries arising out of athletic contests. Leading cases reflecting this view are: Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir.1979); Knight v. Jewett, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (1992); Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258 (1975); Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94 (1989); Ross v. Clouser, 637 S.W.2d 11 (Mo.1982); Dotzler v. Tuttle, 234 Neb. 176, 449 N.W.2d 774 (1990); Kabella v. Bouschelle, 100 N.M. 461, 672 P.2d 290 (Ct.App.1983); Thompson v. McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705 (1990); Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990). In many of the foregoing cases, the Restatement (Second) of Torts § 500 ¹, has been adopted as the...