Reddell v. Johnson

• Decision Date: 01 July 1997
• Docket Number: No. 87276,87276
• Parties: Patrick Ryan REDDELL, Appellant, v. Derek JOHNSON, Appellee.
• Court: Oklahoma Supreme Court

Page 200

942 P.2d 200

1997 OK 86

Patrick Ryan REDDELL, Appellant, v. Derek JOHNSON, Appellee.

No. 87276.

Supreme Court of Oklahoma.

July 1, 1997.

William W. Busby, Garrison, Brown, Carlson, Buchanan & Busby, Bartlesville, for Appellant.

Richard G. Harris, Harris, Whitebread & Cone, Bartlesville, for Appellee.

SUMMERS, Vice Chief Justice.

¶1 Does a voluntary combatant in a "BB gun war" have an action against the player who shot him in the eye, given that the "rules" of the game prohibited aiming above the waist? We say no, and affirm the trial court's dismissal.

¶2 Patrick Reddell and Derek Johnson, both eighteen years old, agreed to participate in a BB gun war. The rules were that no shots should be aimed above the waist, that guns be pumped no more than three times to limit the force of the BBs, and shots be taken only when the person aimed at was in the open. In the course of the game Johnson shot Reddell in the eye, causing damage which resulted in seriously reduced vision.

¶3 Reddell brought a negligence action, alleging that Johnson negligently fired the BB gun pointed above the waist. In a later amended petition Plaintiff alleged that this amounted to recklessness and gross negligence. Johnson answered, denying primary negligence and asserting as affirmative defenses assumption of the risk and contributory negligence. ¹ Defendant filed a motion for summary judgment, and Plaintiff responded by filing his own motion for summary judgment. Included with the motions were copies of depositions of both parties. The trial court granted summary judgment to Defendant, concluding that the defense of assumption of risk barred liability.

¶4 The Court of Appeals affirmed, but on a completely different theory. It reasoned that this case was not one involving negligence, but rather for the intentional tort of assault and battery. Because the statute of limitations for assault and battery is only one year, the court sua sponte held that plaintiff's action was not timely filed, and that summary judgment for the defendant was warranted. We have granted certiorari, vacate the opinion of the Court of Appeals, and affirm the judgment of the trial court.

¶5 Plaintiff urges that the Court of Appeals erred by raising as an issue an affirmative defense not pleaded by the parties. The Court of Appeals justified its action on the general appellate principle that a trial court will be affirmed, even though its result was reached through erroneous reasoning, if there is any proper basis upon which it may be so affirmed. Benham v. Keller, 673 P.2d 152, 154 (Okla.1983).

¶6 An appellate court is generally confined to the issues raised by the parties and presented by the proof, pleadings, petition in error and briefs. Mothershed v. Mothershed, 701 P.2d 405, 411 (Okla.1985); Northrip v. Montgomery Ward & Co., 529 P.2d 489 (Okla.1974); Steiger v. City Nat'l Bank of Tulsa, 424 P.2d 69, 72 (Okla.1967) (matters not first presented to the trial court for resolution will not be considered by the Supreme Court); Edwards v. Pierce, 376 P.2d 269, 272-73 (Okla.1962); Diem v. Diem, 372 P.2d 19, 23 (Okla.1962) (if a judgment may be upheld on any theory presented by the proof or pleadings, it may stand). It is the duty of the parties to frame the issues.

¶7 In Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991), the Supreme Court explained that when a particular claim or defense is before the Court, the Court is not limited to a particular theory. However, courts are not free to play the role of advocate, and raise claims or defenses that should be left to the parties to raise. Doubleday & Co., Inc. v. Curtis, 763 F.2d 495, 502 (2nd Cir.1985), cert. denied, 474 U.S. 912, 106 S.Ct. 282, 88 L.Ed.2d 247 (1985) (court cannot raise the defense of waiver when it was not raised by the party who could have done so.) Only under limited conditions, such as in a public-law controversy, may an appellate court raise a new issue sua sponte. First Federal Savings & Ln. v. Nath, 839 P.2d 1336, 1343 n. 35 (Okla.1992).

¶8 This rule goes hand in hand with the principle that affirmative defenses must be raised by the parties or are waived. Furr v. Thomas, 817 P.2d 1268, 1272-73 (Okla.1991); Harper-Turner Oil Co. v Bridge, 311 P.2d 947, 949 (Okla.1957). The statute of limitations is an affirmative defense which must be pleaded. Red Eagle v. Free, 191 Okla. 385, 130 P.2d 308, 311 (1942); 12 O.S.1991 § 2008(C)(18).

¶9 In the present case Reddell's petition alleges negligence and gross negligence. Nowhere in the pleadings, motions or attachments to the motions is there any indication that the parties sought to litigate the intentional tort of assault and battery. The answer, while pleading several affirmative defenses, does not raise the statute of limitations.

¶10 If the plaintiff had pled a cause of action for assault and battery, and the defendant had raised the affirmative defense of the statute of limitations, among others, but the trial court decided the case on, say, the defense of assumption of risk, then the Court of Appeals would have been free to affirm the trial court by using the properly raised defense of limitations. However, that was not the posture of this case. It is not the place of an appellate court in a case such as this to in effect plead and prove for a party an affirmative defense that the party, intentionally or otherwise, did not plead nor prove. Curtis, supra; Furr, supra.

¶11 We now turn to the question of whether the trial court correctly granted summary judgment to the defendant. Plaintiff asserts that under our Oklahoma Constitution, contributory negligence and assumption of risk are always questions for the jury. Defendant claims that under limited circumstances, such as those here, summary judgment may properly be granted under the doctrine of assumption of risk.

¶12 The Oklahoma Constitution provides in Article 23, Section 6, that "[t]he defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be questions of fact, and shall, at all times, be left to the jury." Following the plain meaning of these words, this Court has generally required the issue of assumption of risk to be submitted to a jury. See, e.g., Byford v. Town of Asher, 874 P.2d 45 (Okla.1994); Flanders v. Crane Co., 693 P.2d 602 (Okla.1985); Foster v. Harding, 426 P.2d 355 (Okla.1967); Joy v. Pope, 175 Okla. 540, 53 P.2d 683 (1936).

¶13 Two exceptions to Article 23, Section 6's mandate have been recognized. In Flanders v. Crane, 693 P.2d at 606, we held that the defense of assumption of the risk need not be presented to the jury if (1) the plaintiff fails to present evidence showing primary negligence on the part of the defendant, or (2) if there are no material facts in dispute, and reasonable minds exercising fair and impartial judgment could not reach differing conclusions. These two exceptions were again recognized in Anderson v. Northwestern Elec. Co-op., 760 P.2d 188 (Okla.1988) and Byford v. Town of Asher, 874 P.2d 45 (Okla.1994). In Byford we cautioned "[t]he exceptions to Article 23, Section 6's constitutional assurance of a jury's determination of the defense of assumption of the risk must be narrowly read, lest they swallow the rule." Id. at 50.

¶14 Considering first the "lack of primary negligence" exception, we noted in Byford that this is really not an exception, but is the fundamental premise underlying all negligence suits; without primary negligence the defendant is not liable. Id. at 48. Thomas v. Holliday, 764 P.2d 165 (Okla.1988) spoke to this exception, explaining that under certain circumstances the defendant owes no duty to the plaintiff. ² No duty is owed in situations in which "plaintiff has made no express agreement to release the defendant from future liability but is presumed to have consented to such a release because he has voluntarily participated in a particular activity or situation which involves inherent risks." Id. at 168 n. 8. The touchstone of the defense of assumption of the risk is consent. Id. at 169.

¶15 This "presumed consent" involves situations such as the voluntary participation in a sport or game. Id., citing Ogden v. Rabinowitz, 86 R.I. 294, 134 A.2d 416 (1957) (voluntary participant assumes risks ordinarily associated with the game or sport). "... [T]he defendant would not be negligent because he owes no duty to the plaintiff. A classic example of this type of risk assumption is afforded by a fan injured while attending a sports event. The fan is deemed to have consented that the game may be played without taking any precautions to protect him from stray balls, and the law takes notice of the existence of a special 'relational' duty between the fan and the owner." Thomas v. Holliday, 764 P.2d at 168-69.

¶16 The risk of being struck by a batted or thrown ball is one of the "natural risks" assumed by spectators attending a baseball game. Lang v. Amateur Softball Assn. of America, 520 P.2d 659 (Okla.1974) Other such cases reported include Pfister v. Shusta, 167 Ill.2d 417, 212 Ill.Dec. 668, 657 N.E.2d 1013 (1995) (student injured in informal game of "can kicking" was barred from recovering from another participant under the "contact sports" exception to negligence); Knight v. Jewett, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (1992) (player in a touch football game assumed the risks associated with playing the game with exuberant participants); Maddox v. City of New York, 66 N.Y.2d 270, 496 N.Y.S.2d 726, 487 N.E.2d 553 (1985) (baseball player injured while playing on muddy field assumed risk by continuing to play after he knew of the field's condition); Kuehner v. Green, 406 So.2d 1160 (Fla.D.Ct.1981) (party injured while sparring in a karate session assumed the risks of a "leg sweep"); Provence v. Doolin, 91 Ill.App.3d 271, 46 Ill.Dec. 733, 414 N.E.2d 786 (1980) (pit crew member was injured during a race when he was struck by...