Niemczyk v. Burleson

• Citation: 538 S.W.2d 737
• Decision Date: 29 June 1976
• Docket Number: No. 10065,10065
• Parties: Virginia NIEMCZYK, Appellant, v. Sue BURLESON, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 737

538 S.W.2d 737

Virginia NIEMCZYK, Appellant, v. Sue BURLESON, Respondent.

No. 10065.

Missouri Court of Appeals, Springfield District.

June 29, 1976.

James R. Robison, Robison & Blaton, Sikeston, for appellant.

William Clayton Vandivort, Hux & Green, Sikeston, for respondent.

Before BILLINGS, C.J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

Plaintiff was injured while participating in a softball game in Bell City, Missouri. Defendant was the shortstop on the opposing team. As plaintiff, a base runner, was attempting to advance from first base to second base, defendant ran across the infield and collided with plaintiff in the base path.

The petition is grounded on negligence. There is no claim of intentional misconduct on the part of the defendant.

The trial court agreed with defendant that the petition failed 'to state a claim upon which relief can be granted,' Rule 55.27(a)(6), and sustained defendant's motion to dismiss which attacked the petition on that ground. Plaintiff appeals.

The petition alleged that on July 8, 1974, plaintiff, as a member of a team from Bell City, and defendant, as a member of a team from Fisk, were participants in a softball game. Paragraph 3 of the petition alleged that the collision (and defendant's resultant injuries and damages) was caused by the following:

3(a) Defendant moved into a position in the baseline where she knew or by the exercise of ordinary care should have known that plaintiff was running and was in such a position that a collision was imminent;

(b) Defendant attempted to block the baseline with her body at a point on the field where a defensive player had no right to be and where plaintiff was entitled to run without interference from defensive players;

(c) Defendant knew or by the exercise of ordinary care should have known that a base runner between first base and second base would expect the baseline to be open and clear and defendant then negligently and carelessly blocked that baseline in such a manner and at a time and place when plaintiff was running so fast that there was not sufficient time for her to avoid the collision.

(d) Under the rules of softball, an advancing base runner has the right-of-way in the base path and defendant negligently and carelessly violated the rules by blocking the base path at a time and place where by the exercise of ordinary care, she should have known such conduct would result in a collision.

It is well known that participation in various forms of athletics is widespread throughout this nation. Yet there are remarkably few reported cases which involve personal injuries sustained by a participant during the course of the game for which tort liability is sought to be imposed upon another participant. See 7 A.L.R.2d 704 ('Liability for injury to or death of participant in game or contest'; cases involving coparticipants appear at p. 714.) See also 11 N.C.C.A.4th 6 (Case note: Injuries to Participants in Sporting Events) at p. 62; 65A C.J.S. Negligence § 174(6), p. 302.

'A voluntary participant in any lawful game, sport, or contest, in legal contemplation by the fact of his participation, assumes all risks incidental to the particular game, sport, or contest which are obvious and foreseeable. But he does not assume an extraordinary risk which is not normally incident to the game, sport, or amusement activity unless he knows about it and voluntarily assumes it.' 4 Am.Jur.2d Amusements and Exhibitions § 98, p. 226.

Cases in which a player of softball ¹ or baseball sued another player for personal injuries sustained by the plaintiff during the course of the game include Gaspard v. Grain Dealers Mut. Ins. Co., 131 So.2d 831 (La.App.1961); Bendetto v. Travelers Ins Co., 172 So.2d 354 (La.App.1965); Tavernier v. Maes, 242 Cal.App.2d 532, 51 Cal.Rptr. 575, (1st Dist. 1966); and Gordon v. Deerpark Sch. Dist. No. 414, 71 Wash.2d 119, 426 P.2d 824 (1967).

Gaspard, Benedetto, and Gordon involve injuries sustained by a flying bat let loose by the defendant. In Gaspard, the trial court, sitting without a jury, found for the defendant. The appellate court, in affirming the result, pointed out that baseball 'is a strenuous game involving danger to both players and spectators' and that the injury resulted from a risk inherent in the game in which plaintiff had voluntarily participated. In Benedetto, also a non-jury action, the trial court found in favor of the plaintiff but this was reversed on appeal. The appellate court found from the evidence that there was no negligence on the part of the batter but that 'if such negligence did in fact exist (plaintiff) had assumed the risk or was guilty of contributory negligence.' In Gordon, the negligence of the batter was held to be a jury issue. In Tavernier, defendant was a base runner who slid into plaintiff at second base. A judgment in favor of the defendant was affirmed, although the court, in dictum, indicated that the plaintiff may have made a submissible case in view of the informality of the game, raising a question for the jury whether 'a participant could be expected to slide' or whether 'defendant's slide was of a type that exposed plaintiff to a risk of a magnitude which he could not have anticipated.'

Baseball or softball cases, against defendants other than the coparticipant but involving the latter's conduct, include Mann v. Nutrilite, Inc., 136 Cal.App.2d 729, 289 P.2d 282 (1955), (plaintiff struck by thrown ball; no submissible case), McGee v. Board of Education of City of New York, 16 A.D.2d 99, 226 N.Y.S.2d 329 (1962), (plaintiff struck by thrown ball; no submissible case), and Dudley v. William Penn College, 219 N.W.2d 484 (Iowa 1974), (plaintiff struck by foul ball; defendant's verdict affired).

It is the theme of the foregoing cases that a voluntary participant in a baseball or softball game assumes the risks ordinarily incident thereto and only in exceptional circumstances may he recover from a coparticipant for injuries unintentionally caused by the latter.

Restatement Torts 2d § 50, comment b, p. 86 (1965) states, in relevant part:

'Taking part in a game manifests a willingness to submit to such bodily contacts or restrictions of liberty as are permitted by its rules or usages. Participating in such a game does not manifest consent to contacts which are prohibited by rules or usages of the game if such rules or usages are designed to protect the participants and not merely to secure the better playing of the game as a test of skill. . . .'

Missouri plaintiffs, injured while participating in a sport, encounter certain principles which impede, but may not always totally obstruct, their paths to success.

A participant in a sport accepts certain 'hazards or dangers, those that reasonably inhere in the sport so far as they are obvious and usually incident to the game.' Perkins v. Byrnes, 364 Mo. 849, 269 S.W.2d 52, 53(2) (1954) (a swimming case).

In Schamel v. St. Louis Arena Corp., 324 S.W.2d 375 (Mo.App.1959), a skating rink case, the court said at p. 378(2): '(Plaintiff) assumed risks that were inherent in the sport or amusement in which she was engaged, such as falls or collisions with other skaters brought about by her own or other skaters lack of skill or clumsiness. Such things are not extraordinary occurrences in skating rinks . . .. But she did not assume any extraordinary risks caused by the obvious misconduct of other patrons which could have been detected and controlled by the defendant.' (Emphasis added)

Another skating rink case contains this language: 'Plaintiff, being a voluntary participant in (what many people consider to be) a sport, assumed the ordinary risks inherent in such activity, whether from accident, mischance or inadvertence, but not such risks as are associated with the negligence of the proprietor.' (Emphasis added) Humbyrd v. Spurlock, 345 S.W.2d 499, 502(4) (Mo.App.1961). See also Reay v. Reorganization Inv. Co., 224 S.W.2d 580, 582(2, 3) (Mo.App.1949) to the effect that falling and colliding with other skaters is not 'an extraordinary occurrence for those indulging in that form of exercise.'

In Keaton v. Good, 350 S.W.2d 119 (Mo.App.1961), a horse racing case, it is said that a participant in that sport 'assumed the ordinary risks inherent in the activity in which he was engaged . . ..' In Kungle v. Austin, 380 S.W.2d 354, 359(4) (Mo.1964), a trampoline case, it is said: 'One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball.' (Emphasis added)

The doctrine of assumption of risk, an affirmative defense (Rule 55.08 V.A.M.R.), has been characterized as 'an extremely doubtful defense under our recent cases.' McCormick v. Smith, 459 S.W.2d 272, 274 (Mo.1970). Its 'viability in Missouri negligence cases' has been questioned. Ballew v. Schlotzhauer, 492 S.W.2d 774, 777 (Mo.1973). For discussion of the assumption of risk doctrine and the distinction between it and contributory negligence, see Turpin v. Shoemaker, 427 S.W.2d 485 (Mo.1968).

Though the doctrine of assumption of risk may have a short life expectancy in Missouri, it has not yet expired, and this court has held that 'a pleader may literally plead himself out of court, and when facts constituting a defense affirmatively appear upon the face of the petition, the defense may be interposed by motion to dismiss without the necessity of a specific motion or answer.' Household Finance Corp. v. Avery, 476 S.W.2d 165, 168(6) (Mo.App.1972).

Some appellate decisions contain litany to the effect that a person does not assume the risk of another person's negligence but our supreme court has stated that 'in many negligence cases assumption of risk may defeat a claim originating in a charge of negligence' and that 'plaintiff is mistaken in urging that the doctrine of...