Novak v. Lamar Ins. Co.

• Decision Date: 07 May 1986
• Docket Number: No. 17758-CA,17758-CA
• Citation: 488 So.2d 739
• Parties: John NOVAK, Plaintiff-Appellant, v. LAMAR INSURANCE COMPANY; Lutheran Benevolent Insurance Company; and Trinity Universal Insurance Company of Kansas, Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 739

488 So.2d 739

John NOVAK, Plaintiff-Appellant, v. LAMAR INSURANCE COMPANY; Lutheran Benevolent Insurance

Company; and Trinity Universal Insurance Company

of Kansas, Defendants-Appellees.

No. 17758-CA.

Court of Appeal of Louisiana, Second Circuit.

May 7, 1986.

McLeod, Swearingen, Verlander & Dollar by Robert P. McLeod and Elmer G. Noah, III, Monroe, for plaintiff-appellant.

Theus, Grisham, Davis & Leigh by Thomas G. Zentner, Jr., Monroe, for defendant-appellee, Lutheran Benevolent Ins. Co.

Davenport, Files & Kelly by Thomas W. Davenport, Jr., Monroe, for defendant-appellee, Trinity Universal Ins. Co. of Kansas.

Before JASPER E. JONES, FRED W. JONES, Jr., and LINDSAY, JJ.

FRED W. JONES, Jr., Judge.

Plaintiff, participant in a church-sponsored softball league, sustained injuries in a game and sued for damages. From a judgment rejecting his demands plaintiff appealed. For the reasons explained, we affirm.

Two of the league teams met under the auspices of the Monroe Recreation Department. During the play in question Novak was the first baseman for his team and Fitts was batting for the opposing team. Fitts hit a grounder down the third base line. The ball was fielded and poorly thrown to Novak at first base. Novak was off-balance in fielding the throw, and the instant he caught it was struck in the face by Fitts who was racing for first base. Novak suffered facial injuries. He sued Fitts, the latter's father's homeowners insurer, and the liability insurer of the church which sponsored Fitt's team.

A participant in a game or sport assumes all of the risks incidental to that particular activity which are obvious and foreseeable. A participant does not assume the risk of injury from fellow players acting in an unexpected or unsportsmanlike way with a reckless lack of concern for others participating. Bourque v. Duplechin, 331 So.2d 40, 42 (La.App. 3rd Cir.1976).

In an excellent written opinion the trial judge made the following fact-findings:

"Fitts was a fast runner; and batting left-handed he was a step or two closer to first than a right-hander would be. Although the throw was not launched from behind Fitts and he did not interfere with the flight of the ball, plaintiff was facing more toward home than third while awaiting the throw, with his left foot in contact with the inside corner of the base, so that the ball in flight was passing between home plate and the pitcher's mound. While there was considerable discrepancy among the witnesses as to the height of the ball when it reached plaintiff, it clearly was not a wild throw and plaintiff was not obliged to alter his position appreciably to catch it.

"According to virtually all witnesses including plaintiff, he began to rise or straighten and 'pivoted' his upper body toward home while still in contact with first base and immediately upon catching the ball and hearing the umpire's 'out' call. At that instant, Fitts arrived at first; and some part of his left arm came into contact with plaintiff's face as the latter 'pivoted' to his left. All of the evidence seems clearly to reveal that the blow was directly into plaintiff's nose and mouth,...