Parsons v. National Dairy Cattle Congress

• Decision Date: 25 April 1979
• Docket Number: No. 61720,61720
• Citation: 277 N.W.2d 620
• Parties: Virginia PARSONS, Appellant, v. The NATIONAL DAIRY CATTLE CONGRESS, an Iowa Corporation, Black Hawk Enterprises, Inc., an Iowa Corporation, and City of Waterloo, Iowa, a Municipal Corporation, Appellees.
• Court: Iowa Supreme Court

Page 620

277 N.W.2d 620

Virginia PARSONS, Appellant, v. The NATIONAL DAIRY CATTLE CONGRESS, an Iowa Corporation, Black Hawk Enterprises, Inc., an Iowa Corporation, and City of Waterloo, Iowa, a Municipal Corporation, Appellees.

No. 61720.

Supreme Court of Iowa.

April 25, 1979.

Upton B. Kepford, of Kennedy, Kepford, Kelsen & White, Waterloo, for appellant.

Jay P. Roberts, of Swisher & Cohrt, Waterloo, for appellees National Dairy and Waterloo.

Edward J. Gallagher, III, of Gallagher, Martin, Keith & Langlas, Waterloo, for appellee Black Hawk.

Considered en banc.

REYNOLDSON, Chief Justice.

On December 8, 1973, plaintiff Virginia Parsons was struck by a hockey puck while she was a spectator in McElroy Auditorium in Waterloo. She brought this tort action against The National Dairy Cattle Congress, owner of the auditorium, the City of Waterloo, lessee, and Black Hawk Enterprises, Inc., sublessee and owner of the local hockey club. She alleged her injuries, suffered while returning to her seat after intermission, were proximately caused by defendants' negligence in failing (1) to provide her with a safe place from which to watch the game, and (2) to erect "barriers or other obstacles" to protect her from errant hockey pucks.

Defendants denied Parsons' allegations of negligence and proximate cause and affirmatively pled assumption of risk and contributory negligence. Trial court sustained the third of defendants' summary judgment motions based on the assumption of risk defense.

Parsons' appeal raises one issue: Did trial court err in holding she assumed the risk of injury as a matter of law? We reverse and remand for a trial on the merits.

I. We examine trial court's ruling in the context of a tort action terminating in a summary judgment. Applicable principles were reviewed extensively in Daboll v. Hoden, 222 N.W.2d 727, 731-36 (Iowa 1974). The burden is upon the movant to show absence of any genuine issue of material fact. Where the evidentiary matter in support of the motion does not establish such absence, summary judgment must be denied even if no opposing evidentiary matter is presented. All material properly before the court must be viewed in the light most favorable to the opposing party. Id. at 731; See also Lindsay v. Davis, 276 N.W.2d 423 (Iowa 1979); Steinbach v. Continental Western Insurance Co., 237 N.W.2d 780, 783 (Iowa 1976); American Telephone & Telegraph Co. v. Dubuque Communications Corp., 231 N.W.2d 12, 14-15 (Iowa 1975). If reasonable minds could draw different inferences and reach different ultimate conclusions from undisputed facts, the issues must be reserved for trial and summary judgment is improper. Brody v. Ruby, 267 N.W.2d 902, 904 (Iowa 1978). On review we are guided by the same principles. See Drainage District No. 119 v. Incorporated City of Spencer, 268 N.W.2d 493, 500 (Iowa 1978).

II. By their answers and summary judgment motions defendants based their assumption of risk and contributory negligence defenses on the same premise: Parsons, an experienced hockey fan, knew hockey pucks occasionally were shot, passed, and deflected into spectator areas. They contend "she assumed all risks in going to a hockey game including being hit by a puck . . . while going to and from one's seat as well as being struck while seated as (a) spectator."

This reliance on both contributory negligence and assumption of risk is an apparent violation of the rule laid down in Rosenau v. City of Estherville, 199 N.W.2d 125, 133 (Iowa 1972):

We hold that in a common-law tort case in which defendant raises the issue of plaintiff's negligence, the elements of "assumed risk" shall no longer be pled and instructed on as a separate defense. The facts of the case, as they bear on the reasonableness of plaintiff's conduct, may well be proper affirmative allegations of plaintiff's negligence in the answer. . . .

We thus abolish assumption of risk as a separate defense in all cases in which contributory negligence is now available as a defense.

Trial court acknowledged Rosenau but held: "(U)nder the facts in this case, contributory negligence would not be a defense and so the defendants are entitled to rely on the defense of assumption of risk."

We do not agree with this conclusion. The defense of contributory negligence was and remains available to defendants in this action. Parsons' cause of action was based on common-law tort and allegations of defendants' negligence. There is no statutory or case-law restraint on defendants' right to plead and attempt to prove that Parsons was negligent and contributed to her own injury. See 57 Am.Jur.2d Negligence § 288, at 684-86 (1971).

This does not mean that defendants may rely only on contributory negligence. Rosenau holds only that in a negligence action the defense of assumption of risk, as used in its secondary sense, is indistinguishable from contributory negligence and is better treated as a component of the latter. In determining whether a plaintiff acted reasonably, one factor the jury will consider is any appreciated risk. Rosenau did not affect assumption of risk in its primary meaning: "an alternative expression for the proposition that defendant was not negligent, I. e., either owed no duty or did not breach the duty owed." 199 N.W.2d at 131.

Since the burden of pleading and proving defendants' negligence is on Parsons, primary assumption of risk is Not an affirmative defense.

The burden of proof as to negligence of defendant does not shift to him merely because he chooses to express his denial of negligence in terms that plaintiff assumed (may not complain of) risks which inhered Notwithstanding that defendant properly discharged the duty he owed in the circumstances.

Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 56, 155 A.2d 90, 97 (1959) (emphasis supplied). The New Jersey court held it would make no difference whether a trial court made a reference in an instruction to assumption of risk "provided that if the terminology is used the jury is plainly charged it is merely another way of expressing the thought that a defendant is not liable in the absence of negligence." Id. at 55, 155 A.2d at 96. Four years later the same court concluded the term, even though limited to its primary meaning, "is so apt to create mist that it is better banished from the scene. We hope we have heard the last of it." McGrath v. American Cyanamid Co., 41 N.J. 272, 276, 196 A.2d 238, 240-41 (1963).

This court pioneered the Meistrich rationale in Martin v. Des Moines Edison Light Co., 131 Iowa 724, 735-39, 106 N.W. 359, 363-64 (1906), an opinion cited in both Rosenau and Meistrich. That case discusses instructions on primary risk assumption which may be helpful today. Since Rosenau we have had no occasion to examine the utility of primary risk assumption for lawyers and judges as a label for denial of duty or negligence. We are unwilling to conclude it should be abandoned.

By the time defendants reached oral submission of this appeal, they were asserting assumption of risk in its primary sense. While we have some doubt that this was the theory pled and submitted on motion in district court, we will assume for the purpose of this analysis it was so pled and submitted.

III. We thus reach the issue whether the record shows as a matter of law that defendants had no duty to Parsons, or that they did not breach that duty. Viewed in the light most favorable to Parsons, the following facts may be gleaned from the record.

On deposition Parsons testified she and her husband started going to the Black Hawk hockey games in 1967. Ordinarily they sat in box seats where a glass barrier provided some protection. She had seen people behind her hurt by pucks lofted into the audience and was aware they posed a danger.

After the first period of the game in question, Parsons went to a refreshment stand. She had a soft drink and started to return with another for her husband. Other people were in the aisle around her. She heard no signal that the period was about to start. She was unaware of play on the ice or other indication the game had resumed. As she "rounded the corner" toward her seat she was hit in the face by a puck she never saw.

Parsons testified the hockey arenas she had seen on television provided more protection than defendants' did. It is apparent from the record that defendants provided little protection from flying pucks for persons moving in the aisles.

A. Of course, merely because defendants owned or operated an amusement arena where games are played does not mean they owed Parsons no duty. We have repeatedly relied upon the Restatement's description of the duty owed invitees by possessors of land. See, e. g., Mundy v. Warren, 268 N.W.2d 213, 217 (Iowa 1978) (quoting Restatement (Second) of Torts §§ 343, 343A(1) (1965) (hereinafter cited Restatement )); Frantz v. Knights of Columbus, 205 N.W.2d 705, 709, 711 (Iowa 1973) (quoting Restatement § 343 & Comments b & d, § 343A & Comment b); Weidenhaft v. Shoppers Fair, 165 N.W.2d 756, 760 (Iowa 1969) (quoting Restatement §§ 343, 343A & Comments e & f). Section 343A(1) provides:

A possessor of land is not liable to his invitees for physical harm caused to them by any Activity or condition on the land whose danger is known or obvious to them, Unless the possessor should anticipate the harm despite such knowledge or obviousness.

(Emphasis added.) Comment e describes the usual situation:

In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes. If he knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary...