Picou v. Hartford Ins. Co.

• Decision Date: 14 March 1990
• Docket Number: No. 89-CA-696,89-CA-696
• Citation: Picou v. Hartford Ins. Co., 558 So.2d 787 (La. App. 1990)
• Parties: Julian PICOU and Sandra Picou v. The HARTFORD INSURANCE COMPANY.
• Court: Court of Appeal of Louisiana

Page 787

558 So.2d 787

Julian PICOU and Sandra Picou v. The HARTFORD INSURANCE COMPANY.

No. 89-CA-696.

Court of Appeal of Louisiana Fifth Circuit.

March 14, 1990.

Gordon Hackman, Boutte, for plaintiffs/appellants, Julian and Sandra Picou.

Frederick A. Miller, New Orleans, for defendant/appellee, Hartford Acc. and Indem. Co.

Before BOWES, GAUDIN and DUFRESNE, JJ.

BOWES, Judge.

Plaintiffs-appellants, Sandra and Julian Picou, appeal a judgment of the district court in favor of defendant, The Hartford Insurance Company, dismissing their case. We affirm.

Sandra Picou was a member of the Mennonite Church softball team, and, on May 19, 1987, played second base for Mennonite in the "Women's Christian Softball League." Defendant's insured, Marguerite (sometimes called "Meagan" in the proceedings) Mongrue, was a member of the opposing team from Holy Family. On the day in question, Ms. Mongrue was the runner at first base when another member of her team hit the pitched ball to center field. Ms. Picou, attempting to cover second base, caught the ball from the center fielder. As she did so, Ms. Mongrue ran to second base and either collided with Ms. Picou, or slid or dove into second base, causing Ms. Picou to fall off balance and injure her ankle. Ms. Picou underwent surgery and was in a cast for 14 weeks; she has residual physical problems stemming from the injury. This suit for damages alleging negligence or a violation of a duty on the part of Ms. Mongrue followed, after the incident described above.

Trial on the merits was held on March 28, 1989, and, after taking the case under advisement, the trial court rendered judgment in favor of the defendant, stating in her reasons for judgment as follows:

In order for plaintiff to recover, she must establish by a preponderance of the evidence that defendant acted in an unexpected and unsportsmanlike way with a reckless lack of concern for others' safety. See Novak v. Lamar Ins. Co., 488 So.2d 739 (La.App. 2 Cir.1986) and Ginsberg v. Houtas, [sic], No. 88-CA-2326 (4th Cir. June 8, 1989). The standard of care to which the defendant is held is that of a reasonably prudent base runner attempting to gain second base.

None of the various versions of how the accident occurred is sufficient to meet the requirements of establishing defendant's conduct violated the standard of care required of her.

Plaintiffs have perfected the present appeal from that judgment.

On appeal, plaintiffs have averred that the trial court erred in:

1. Finding no duty of a base runner to avoid striking a base player from the rear;

2. Applying a general rule on sports injuries to an injury that occurred when plaintiff was struck from the rear;

3. Failing to give meaningful findings of fact and reasons for judgment;

4. Assessing costs against plaintiffs.

Along with the judgment and reasons for judgment, the trial court attached a chart outlining the testimony of various witnesses who perceived the accident, which we designate as an appendix to this opinion. The chart accurately summarizes the salient portions of the witnesses' testimony. In addition, our review of the transcript has revealed additional testimony, which we find relevant, such as the following:

1) Jamie Cortez, witness for the plaintiff and umpire, testified that plaintiff had her back to the runner and that defendant collided with the plaintiff.

2) Meagan Mongrue, the defendant, testified that she had no intention of making contact with the plaintiff.

3) Mickey Falgoust, defense witness and a player for Holy Family, testified that the defendant fell first and that plaintiff fell on top of her.

4) Sandy Voros Johnson, defense witness and a player for Holy Family, testified that defendant slid, feet first, between plaintiff's legs.

DUTY RISK

Cases such as the present one, in which plaintiff and defendant have been voluntary participants in sporting activities, have traditionally been decided using the theory of assumption of the risk--did the plaintiff assume the risk encountered in the activity? See e.g., Bourque v. Duplechin, 331 So.2d 40 (La.App. 3 Cir.1976).

However, our Supreme Court abrogated the defense of assumption of the risk in the relatively recent decision of Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988). There the Court said:

"... we believe that the courts, lawyers and litigants would best be served by no longer utilizing the term assumption of the risk to refer to plaintiff conduct."

Rather, the Court found that cases involving voluntary participation in certain types of activities will turn on their particular facts and may be analyzed in terms of duty/risk, id., at p. 1135:

Nor does our decision today mean that the result reached in the sports spectator or amusement park cases (common law's "implied primary" assumption of risk cases) was incorrect. However, rather than relying on the fiction that the plaintiffs in such cases implicitly consented to their injuries, the sounder reasoning is that the defendants were not liable because they did not breach any duty owed to the plaintiffs.

. . . . .

Even while applying assumption of risk terminology to these types of cases, courts have simultaneously recognized that the defendant was not negligent because his conduct vis-a-vis the plaintiff was not unreasonable.

. . . . .

The same [duty risk] analysis applies in other cases where it may not be reasonable to require the defendant to protect the plaintiff from all of the risks associated with a particular activity. See, e.g., Bonanno v. Continental Casualty Co., 285 So.2d at 592 [ (La.App. 4 Cir.) ] (operator of haunted house provided adequate supervision and space for patrons, and therefore was not negligent).

In Bourque, supra, even though the court discussed the facts of that case in terms of what risks were assumed by the plaintiff, it further discussed the duty involved in playing a softball game:

There is no question that defendant Duplechin's conduct was the cause in fact of the harm to plaintiff Bourque. Duplechin was under a duty to play softball in the ordinary fashion without unsportsmanlike conduct or wanton injury to his fellow players. This duty was breached by Duplechin, whose behavior was, according to the evidence, substandard and negligent.

. . . . .

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.

Put another way, players have a duty to play with sportsmanlike conduct, according to the rules of the game and with regard for the other participants.

A virtually identical analysis can be found in Novak v. Lamar Ins. Co., 488 So.2d 739 (La.App. 2 Cir.1986), in which the Second Circuit determined the case in terms of assumption of the risk:

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.

Translated for purposes of our duty/risk analysis, participants have the duty to play the game in a reasonable manner, refraining from acts which are unexpected, unforeseeable, or which evidence reckless disregard for other players.

The latest expression of the duty involved in such cases is Ginsberg v. Hontas, 545 So.2d 1154 (La.App. 4 Cir.1989), writ denied 550 So.2d 631 (La.1989), in which the court discussed the duty involved:

Louisiana jurisprudence dictates that in a tort action courts are to apply a "duty risk" analysis to determine whether a defendant's conduct was the legal cause of the plaintiff's injury. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). Under a duty risk analysis, there are the following inquiries: (1) What, if any, duty was owed by the defendant to the plaintiff? (2) Was there a breach of the duty? (3) Was that breach a substantial cause in fact of the injury? (4) Was the risk and harm within the scope of the protection afforded by the duty breached? Jones v. Robbins, 289 So.2d 104 (La.1974); Hill v. Lundin & Associates, Inc., supra.; Annis v. Shapiro, 517 So.2d 1237 (La. 4th Cir.1987). Whether a defendant owes a plaintiff a legal duty is a question of law. Whether a defendant has breached a duty owed is a question of fact. Chavez v. Nobel Drilling Corp., 567 F.2d 287 (5th Cir.1978).

The duty owed by the defendant in the instant matter is a common duty, the duty to act reasonably under the circumstances. In this softball game defendant owed plaintiff the duty to act reasonably, that is, to play fairly according to the rules of the game and to refrain from any wanton, reckless conduct likely to result in harm or injury to another.

Under a duty risk analysis, plaintiff bears the burden of proving by a preponderance of the evidence that the defendant violated an imposed duty and acted unreasonably causing injury. Blanchard v. Riley Stoker Corp., 492 So.2d 1236 (La.App. 4th Cir.1986).

The district court used the standards enunciated in Novak and Ginsberg, supra, in finding that the standard of care to which the defendant was held is "that of a reasonably prudent base runner attempting to gain second base." We agree with her conclusion, based on the evidence adduced at trial, that none of the various versions of the accident established that Ms. Mongrue's conduct violated the standard of care required of her. In so doing, we reiterate and adopt the standard of care discussed above--participants in these (sports) activities have a duty to play in a reasonable and sportsmanlike manner, according to the rules of the game, and to refrain from acts which are unforeseeable and which evidence wanton or reckless disregard for the other participants. Under this standard, we agree that Ms. Mongrue, while an enthusiastic player, did not act in an unreasonable or...