Perry v. Seattle School Dist. No. 1

• Decision Date: 09 September 1965
• Docket Number: No. 37298,37298
• Citation: 405 P.2d 589,66 Wn.2d 800
• Parties: Joseph PERRY and Louise S. Perry, Appellants, v. SEATTLE SCHOOL DISTRICT #1, and City of Seattle, a municipal corporation, Respondents.
• Court: Washington Supreme Court

Page 800

66 Wn.2d 800

405 P.2d 589

Joseph PERRY and Louise S. Perry, Appellants, v. SEATTLE SCHOOL DISTRICT #1, and City of Seattle, a municipal corporation, Respondents.

No. 37298.

Supreme Court of Washington, En Banc.

Sept. 9, 1965.

Rehearing Denied Nov. 2, 1965.

Merges, Brain & Hilyer, Edwards E. Merges, Max R. Nicolai, Seattle, for appellants.

Charles O. Carroll, Pros. Atty., Seattle, James E. Kennedy, Stanley E. Stone, Deputy Pros. Attys., for respondents.

HILL, Judge.

This is an action for damages against Seattle School District $1 for injuries sustained by a spectator while watching a football game from the side lines.

The trial court, after hearing all of the evidence, entered a judgment of dismissal. The plaintiffs ¹ appeal. The facts, as found by the trial court, were as follows:

'That the plaintiff was seriously, painfully and permanently injured while a spectator at a football game, being conducted under the supervision of the defendant school district at the Garfield playfield, a Seattle Park Department facility, and that on the occasion in question a football game was in progress between the third teams of Garfield and West Seattle High Schools. That high schools are permitted to use the facility by permission of the Park Department.' Finding No. 1.

'That the plaintiff was a grandmother, 67 years of age, at the time of the accident * * * That the plaintiff had been invited to attend the game by her grandson, Tom Winkle, a member of the West Seattle team, * * * to see him play * * * Tom Winkle had been encouraged to invite his parents, relatives and friends to this and other games by programs at the West Seattle High School assemblies. Mr. Driscoll, a teacher coach at the West Seattle High School, stated that the support of parents and relatives by attendance at such games was a valuable morale builder and that the students were told that he would appreciate attendance of parents and relatives at such games. Numerous other parents, friends and relatives were attending the game in question. No admission was charged * * *.' Finding No. 2.

'The plaintiff had never been to a third team high school football game before and had attended only one other football game in her life. She was not familiar with the game of football; the only other game that she had attended had been several years previously at the high school memorial stadium where she sat in the grandstand.' Finding No. 3.

'The football field was of standard size and the boundaries of the field were marked out in chalk. There were two sixty person sets of bleacher seats on the west side of the field which was informally considered the Garfield side and was occupied solely by Garfield players who pile their equipment on at least one-third of the bleacher seats. The plaintiff was not requested to sit in them. There were no bleachers provided on what was considered the West Seattle side and the plaintiff went to stand on that side along with all the other spectators from West Seattle and with the knowledge and consent of the defendant school district employees supervising the game. No one from the school gave oral direction as to where plaintiff was to stand. The spectators were lined up along the sideline to watch the contest and the only supervision was requests by the defendant's officials that they stay on the outside of the line marking the boundary of the playing field. Frequently, persons in the crowd who moved across the line and onto the playing field were requested to move back of the line. There is no evidence that the plaintiff was at any time over the line and onto the playing field.' Finding No. 4.

'As in all football games, players frequently run or are knocked out of bounds and if a play came near the crowd it would fan away from the players. The defendant was at all times aware of such condition. There was testimony that in other similar games spectators had been run into or knocked down.' Finding No. 5.

'The plaintiff on the date of the accident in question arrived at the field before game time. She was accompanied by her daughter, * * * Tom's mother. They joined the group of spectators on the west side of the field which was considered the West Seattle side. Standing with them was Mrs. Dolores McLeod, mother of another West Seattle player. They took a position at around the 50-yard line and stood one or two feet outside the east line of the field. The plaintiff was standing in the front row and the crowd was about four persons deep. At the time the accident occurred, the plaintiff and her daughter were about a foot or two back of the line indicating the boundary of the playing field and were standing at a place where they were supposed to be as far as the defendant and its supervisors were concerned; that being off the field and back of the line. The plaintiff and Mrs. McLeod were conversing and none of them seemed to have been paying close attention to the progress of the game. Just before the accident the offensive team was starting a play from about the 30-yard line when the ball carrier * * * made a wide end run around the east side of the playing field, running close to the sidelines. As he arrived opposite where the plaintiff was standing, he was hit by two Garfield players, knocked out of bounds, and into the plaintiff, who was thrown violently to the ground and was severely and permanently injured. She was standing with all the other persons in the crowd which was watching the game; she did not watch the player carry the ball on the play in question and did not see him until just before she was struck when the player was tackled. The game had been in progress for a time estimated variously from ten minutes to about a minute before the end of the second ten-minute quarter. No players had been run off the field before the accident. * * * ' Finding No. 6.

'The court finds that there was danger and hazard to spectators standing where the plaintiff stood when the play came her way unless such persons stepped away.' Finding No. 7.

'Expert testimony by Mr. Driscoll, one of the coaches, was to the effect that five yards back from the line marking the playing field would have been a safer place for spectators to stand and some of the players testified as experts that roping off an area some yards back would have made a safer place to stand and the court so finds. The defendant offered no contention nor evidence that it was unable to provide such safety measures, nor was there any evidence that such measures were customarily taken in games of this sort. That there was no rule nor regulation to prevent the defendant from requiring spectators to stand further back from the line nor from requiring spectators to use the bleacher seats on the east side of the field which were then being used by the Garfield football players.' Finding No. 8.

'The court finds that the plaintiff was invited by the defendant to attend the game in question and complied with the rules and requests of the defendant that she stand back of the line marking the playing field at all times. No other instructions were given to plaintiff. The court further finds that the play in question started on the thirty-yard line near the west sideline and took approximately fifteen seconds between its origin and the injury to the plaintiff.' Finding No. 9.

'That the game in question was solely any wholly under the control and supervision of the defendant and its agents and that such agents consisted of linesmen, coaches and referees, all of whom were familiar with the fact that players do sometimes run off the field and into crowds and spectators.' Finding No. 10.

From these findings of fact the court concluded: (a) that the defendant was not negligent; (b) that the plaintiff was contributorily negligent; and (c) that the plaintiff voluntarily assumed the risk of being injured by standing in close proximity to the side lines.

These, in themselves, are the ultimate issues upon which a jury might be required, under proper instructions, to make a finding. (If the defendant was found to be not negligent, no other finding would be necessary.) Negligence, contributory negligence, and assumption of risk were all issues to be determined by the trier of the facts. Morris v. Cleveland Hockey Club, Inc., 157 Ohio St. 225, 105 N.E.2d 419 (1952); Shanney v. Boston Madison Square Garden Corporation, 296 Mass. 168, 5 N.E.2d 1 (1936).

The applicable rule as to the duty of the school district is that it must observe, if it is to provide for the safety of its invitees, that degree of care, precaution and vigilance which the circumstances demand. Kavafian v. Seattle Baseball Club Ass'n, 105 Wash. 215, 177 P. 776,181 P. 679 (1919). The 'circumstances' would seem to require, where large crowds attend because of interest in the outcome of the game, a higher degree of care than in more informal second and third-team and intramural contests where no admission is charged and those who attend are largely relatives or personal friends of the participants. Here there is no profit and the purpose is to make possible a wider participation in the sport.

On each issue considered by the trial court, it seems to us that reasonable minds might, on the basis of the evidence as set out by the court in the quoted findings, have disagreed. As to (a), the negligence of the defendant school district, reasonable minds might conclude that the school district was negligent in not having placed ropes five yards back from the side lines and in failing to keep spectators that distance from the playing field, or in failing to have had bleachers for spectators on both sides of the playing field (on the same theory that professional baseball parks are required to have certain areas in the grandstands, protected by netting, available to those who desire such protection). Kavafian v. Seattle Baseball Club Ass'n, supra.

Other equally reasonable minds might conclude that the chances were minimal that the...