Rutter v. Northeastern Beaver County School Dist.
| Decision Date | 19 December 1980 |
| Citation | 283 Pa.Super. 155,423 A.2d 1035 |
| Parties | Howard Lewis RUTTER, a minor, by his parents and natural guardians, Billy Dean Rutter and Lucy Rutter and Billy Dean Rutter and Lucy Rutter, in their own right Appellants v. NORTHEASTERN BEAVER COUNTY SCHOOL DISTRICT, Gregg Zimmerman, John Warren North and Thomas W. George, Jr. |
| Court | Pennsylvania Superior Court |
Argued April 11, 1979.
W. Arch Irvin, Jr., Pittsburgh, for appellants.
Nick A. Frisk, Jr., Ellwood City, for Northeastern appellee.
Oran W. Panner and Eric Anderson, Beaver, for Zimmerman appellee.
Thomas Minett, Pittsburgh, for North and George, appellees.
Before SPAETH, VAN der VOORT and WATKINS, JJ.
This is an appeal from the Order of the Court of Common Pleas of Beaver County by the plaintiff-appellant after the court below granted the defendants a compulsory non-suit at the conclusion of the plaintiff's case.
On July 13 1970, the plaintiff sustained a severe injury to his right eye while participating in a touch football game on the premises of the Riverside High School. The plaintiff was a 17 year old senior at the time and had participated in the high school football program at the Riverside High School the preceding year, having been a "starter" on both offense and defense, he had played touch football in gym class and had participated in basketball games and track. The particular type of touch football in which the plaintiff was engaged on the evening of his injury was referred to as "jungle football," was strongly encouraged by the football coaches as a part of the physical conditioning program for members of the varsity football team, and was conducted under the supervision of the high school football coaches.
At trial, "jungle football" was described as basically two-hand touch football. Each team had four downs in which to score and play began at a line of scrimmage established by the place of advancement of the ball on the previous down. The offensive team had set plays and the "play" would begin when the ball was "snapped" to the quarterback. Once the ball was "snapped" into play any number of forward, lateral, or backward passes could be made without regard to one's position on the field. A player was "downed" and the play ended either when the player carrying the ball was tagged with two hands by an opposing player or when a forward pass fell incomplete. The game, therefore, was essentially a game of two-hand touch football with the one exception being that a ball carrier could throw more than one forward pass and could throw the ball forward even though he had already crossed the line of scrimmage. Plaintiff had participated in this particular brand of football on prior occasions.
On the evening of his injury plaintiff was participating in one of the aforementioned games. The coaches were also engaged in the game as participants which they would often do when extra players were needed. At the time of the injury plaintiff's team had the ball. As the plaintiff, a halfback, was preparing to block the defendant, Gregg Zimmerman, a player on the opposing team, the ball carrier lateralled the ball to the plaintiff whereupon Zimmerman, attempting to tag plaintiff, reached out with his hands and accidentally struck the plaintiff in his eye. As a result of the injury the plaintiff suffered a detached retina in his right eye.
On April 16, 1974, plaintiff having initiated suit previously by way of a praecipe, filed his complaint in trespass against the school district, Gregg Zimmerman, and the football coaches. The matter was tried in October of 1975 and on October 2, 1975 the court below granted a compulsory non-suit to the defendants after the plaintiff had presented his case. Subsequently the plaintiff's motion to take off the compulsory non-suit was denied and plaintiff took this appeal.
The granting of a motion for compulsory non-suit is proper only where the facts adduced at trial indicate that the plaintiff has failed to put forth sufficient evidence as is necessary to support his cause of action. McNett v. Briggs, 217 Pa.Super. 322, 272 A.2d 202 (1970). However, the mere happening of an accident is not evidence of negligence. Amon v. Shemaka, 419 Pa. 314, 214 A.2d 238 (1965). In order to establish negligence plaintiff must demonstrate that the defendants breached some standard of care owed by them to him. It is also well established that a compulsory non-suit may be granted where the plaintiff admits uncontradicted facts which establish an affirmative defense. Plummer v. Wesner, 217 Pa.Super. 24, 268 A.2d 144 (1970).
A voluntary participant in a sporting event assumes the ordinary risks incidental to that particular sport. Podvin v. Somerton Springs Swim Club, Inc., 406 Pa. 384, 178 A.2d 615 (1962). Participants in sports assume the risks of injury as part of the game. It is well known that the game of football involves a great amount of bodily contact. Plaintiff was an experienced participant in the game. By his decision to participate in the sport he obviously assumed the risks of injury inherent in any game involving contact. As such we agree with the court below in its finding that the plaintiff's own evidence conclusively established that, as a matter of law, he is precluded from maintaining his action by the doctrine of assumption of risk.
The dissent would have us hold that because this particular brand of football contained a slight variation from the usual football rules that somehow this altered the game into an "unorthodox and dangerous form of football that carried risks not inherent in more conventional versions of the game." The record of this case fails to sustain this conclusion. While several of plaintiff's witnesses characterized the game as one with "no rules at all" these same witnesses then went on to describe the rules as set forth herein. Taking their testimony as to the facts as a whole, which we must, we cannot agree with the witnesses' conclusions to the effect that this type of game was "rougher" or more "dangerous" than other versions of the same game. Thus, we are not rejecting testimony as to facts favorable to the plaintiff, as suggested by the dissent, but merely reject the witnesses' conclusions and opinions as to the nature of the game which we are not bound to accept. Similarly we cannot assume that the coaches failed to supervise the game merely because they would, on occasion, participate in it. "Plaintiff's own witness testified that the coaches would "whistle" a play "dead" and if there was an argument or something, they would step in and settle the argument, or whatever ". Thus, it is clear from the testimony that although plaintiff's witnesses made several characterizations about the game that these characterizations merely reflect the subjective feelings of these witnesses while the facts adduced from these same witnesses do not support their characterizations and while we are bound to accept the facts in the light most favorable to the plaintiff we need not so accept their expressions of opinion especially when they are contradicted by the facts. As discussed above, the only variations in this particular brand of touch football were that more than one forward pass could be thrown on the same "play" and that a forward pass could be thrown from beyond the "line of scrimmage ". It is quite apparent that these variations in the rules of the game do change the game. It is just as apparent that they in no way render the game any more dangerous than it is in its more conventional forms. Thus, we believe that merely because a certain brand of a sport may be "unconventional" does not necessarily render it more "dangerous" than more orthodox forms of the same sport. It is also quite apparent that plaintiff's injury was not caused by the variations in the rules of the game as the accidental striking of an eye by the hand of an opposing player is an inherent risk of any contact sport. Furthermore even casual observers of any game of "two-hand touch" football know that such games tend to be "wide open" affairs with much lateralling of the ball and risky offensive plays. It is also apparent that plaintiff's injury could have occurred just as easily in a game of "tackle football" where the play is ended only when the ball carrier is knocked off his feet rather than merely touched with two hands. Because we find that the game of football engaged in by plaintiff was no more dangerous than a conventional football game and because we find that plaintiff's injury was of the type the risk of which is inherent in any type of football contest we hold that the court below acted correctly in granting the motion for compulsory non-suit on the basis that plaintiff had assumed the risk of injury when he voluntarily and knowingly participated in the football program at Riverside and in this particular game.
Plaintiff also claims that the court below erred when it would not permit one Frank Cipriani, a former football coach, to testify as an expert witness with regard to safety equipment provided by other Pennsylvania High Schools for their football programs. The trial court had sustained defendant's objections to the introduction of this testimony.
The allowance of testimony by an expert witness is a matter within the sound discretion of the trial court. Houston v. Canon Bowl, Inc., 433 Pa. 383, 278 A.2d 908 (1971). In such matters we will reverse a trial court only when it abuses its discretion. In the instant case the court below did not abuse its discretion when it refused to permit plaintiff to have the former football coach testify as an expert. When the subject matter of proposed expert testimony relates to occurrences which are within the common experiences of the trier of fact the...
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