Tavernier v. Maes

• Decision Date: 27 May 1966
• Citation: 242 Cal.App.2d 532,51 Cal.Rptr. 575
• Parties: Alfred TAVERNIER, Plaintiff and Appellant, v. Leland MAES, Defendant and Respondent. Civ. 21941.
• Court: California Court of Appeals Court of Appeals

Page 575

51 Cal.Rptr. 575

242 Cal.App.2d 532

Alfred TAVERNIER, Plaintiff and Appellant, v. Leland MAES, Defendant and Respondent.

Civ. 21941.

District Court of Appeal, First District,

Division 1, California.

May 27, 1966.

Barton, Farrow & Barton, Harold R. Farrow, Oakland, for appellant.

Nick L. M. Elchinoff, Burlingame, for respondent.

SIMS, Justice.

Plaintiff has appealed from a judgment for the defendant entered on a jury verdict in an action in which he sought to recover damages occasioned by and attendant to a fractured ankle suffered when the defendant slid into him in the course of a family softball game.

He asserts that prejudicial error resulted when the trial court submitted the question of assumption of risk to the jury. More specifically he urges that the defendant produced no evidence to entitle him to the benefit of the doctrine of assumption of risk, that the instructions which were used were erroneous and erroneously given, and that the error in giving these instructions was prejudicial.

An examination of the facts and pertinent law induces the conclusion that the defendant was entitled to have the issue of the applicability of the defense of assumption of risk left to the jury, and that the instructions which were given properly set forth both the criteria for determining if the doctrine should be applied and the elements it was necessary to establish before it could defeat recovery.

On July 4, 1961, plaintiff and defendant were each members of a group of fourteen adults and twelve young children, of an age of twelve and under, who attended a family picnic at Robert's Recreation Area, a public park. Similar family picnics had been held in prior years and the participants customarily assembled in the forenoon, leisurely partook of their lunch, and then engaged in a game of softball with all but the very eldest and very youngest participating. The group was principally the family of plaintiff's wife, consisting of her brothers, Felix Maes and the defendant Leland Maes, and their wives, her sister, Mrs. Cain, and her husband, the Maes' mother and her husband, and the grandparents on the Maes' side of the family. One other couple, and the children, completed the assemblage.

On this occasion, after lunch, the ball was lobbed around at the picnic grounds, and then the plaintiff and others drove down to the baseball field to have a game of ball. The ball field they had played on in prior years was occupied, or under repair, so they went to a makeshift field adjacent to it. It had a backstop, but no grass, only stubble, and the terrain was rough. There were no base bags, just improvised bases, and second base was defined by a hole in the ground. Everyone rotated around in order to keep the men in the strong positions, on the bases or in the outfield, because they could play better, and the women were pitching or catching or playing where they would not be apt to make so many errors. A hit to right field was an automatic out because they had no right fielder. Plaintiff's team consisted of himself and his wife, Mr. and Mrs. Cain, and their twelve year old boy and defendant's eight and six year old daughters. Defendant's team was predominantly adults, both men and women.

After the game had been in progress an hour or more the defendant was at bat (according to all witnesses but plaintiff, who placed him as a runner at first base with his brother Felix at bat), the plaintiff's wife (defendant's sister) was pitching, and the brother-in-law Cain was playing left field. The pitcher lobbed the ball underhand and defendant hit the ball to left field. Cain started to run on the ball, but then waited for it to come to him because of the rough terrain. Plaintiff at second base was aware of the approaching defendant at a base runner, but did not see him because he was turned to take the perfect throw which Cain made to him with the intention of tagging defendant out.

Somewhere between first and second base the defendant, after watching Cain launch the throw to plaintiff, upon an impulse or natural reflex to get out of the way of the ball, because he confessedly would not have wanted to slide on the rough pebbly ground, decided to slide into second base. Defendant claimed it always had been in his mind that he slid because the ball might hit him, but admitted he did not say anything to that effect on the day of the accident or in his prior deposition, and first mentioned it after his deposition was taken when discussing that event with his wife. He acknowledged that there were two kinds of slide; a hook-slide where in order to evade a tag the runner slides to right or left of the base and tries to touch the base with his foot; and another type of slide where in order to break up a double play the runner slides straight into the defending baseman with his feet high for the express purpose of knocking him down. It was established that the defendant knew how to make both of these slides; that he had played organized softball, participated in football and hardball baseball in high school; that subsequently as a playground director he had taught others how to slide; and that he had only played sand-lot or picnic-type baseball since leaving the Recreation and Park Department for which he worked for a year and a half following his graduation from high school in 1949. Defendant testified that on this occasion he had no particular type of slide in mind; that he had no intention of sliding into plaintiff and knocking him down; that he was not attempting to break up a double play; and that he was trying to evade plaintiff and reach second base as defined by a hole in the ground.

The plaintiff testified that there had been at last one close play in the game; that he had physically tagged another player out; that no one had slid into any base that day; and that there had been no sliding in prior family picnic games. He acknowledged that he had played softball previously and had witnessed softball games and had seen people slide into second or third base in games he had witnessed on television. His brother-in-law Cain, and the defendant himself, both confirmed that there had been no sliding in this or prior family picnic games. Cain had played ball with plaintiff before, once in a great while, and had observed him drop a ball thrown to him on occasions. Defendant had observed the plaintiff play ball at prior family picnic games, and considered him a fairly good ball player, but thought he would not catch the hard thrown ball.

The defendant testified that in his slide he was laying almost on his back with his weight on his left thigh, his left leg cocked under him to keep it out of the way, and his right leg out straight in the air a foot or two off the ground; that he was sliding right at second base; that it was not a hook-slide; that he hit the plaintiff below the knee, at his ankle or calf, with what he indicated was his lower left leg; and that he knocked plaintiff down, but did not know whether plaintiff's ankle was injured by the impact or a subsequent fall. Cain testified that the defendant made a normal slide; that he was running as fast as he could and left his feet to start his slide about three quarters of the way from first base to second base; that his feet went straight toward plaintiff; and that upon contact the plaintiff went up in the air and came down on his knees. The plaintiff testified that he was his as he caught the ball--almost simultaneously; that he could not recall whether the slide knocked him down, but he thought that he retained his feet, or at least that he came down on his feet if he had been knocked in the air; that he detected a terrific pain in his leg, saw it was bent at a grotesque angle, and dropped to his knees.

He was taken to the hospital and it was found that he had fractured both the outer and inner bone of his left ankle. The inner bone failed to grow together and it was necessary to perform a bone graft later.

On this state of the evidence the court instructed the jury that the issues were the negligence of the defendant, proximate cause and assumption of risk. ¹ No instructions were given on contributory negligence. The instructions then advised the jurors to determine the question of liability before undertaking to fix any amount of damages, set forth the standards for burden of proof, placed that burden on the plaintiff for the issues of negligence, proximate cause and damages, and on the defendant for assumption of risk. ² They were told: 'In determining whether or not any issue has been proved by a preponderance of the evidence, you should consider all of the evidence bearing on that issue, regardless of which party produced it.' The court continued with general instructions defining negligence and proximate cause, and then gave the specific instructions on assumption of risk of which, along with the two instructions on the subject previously noted (fns. 1 and 2), the plaintiff complains.

Plaintiff, while asserting that the issue was not properly raised by the evidence, had presented instructions embodying the content of Instructions numbered 207, 207--A and 207--B as found in California Jury Instructions, Civil 4th edition (1956). ³ The court modified the first, and gave the following: 'I have heretofore mentioned to you that the defendant here sets up the defense that the plaintiff assumed the risk of what happened as shown by the evidence. That is known as the defense of assumption of risk, and I will now explain it to you: A person is said to assume a risk when he knows that a danger exists in the conduct of another during the ordinary course of a game or activity, and with that knowledge he nevertheless voluntarily exposes himself to that danger. A person who thus assumes a risk is not entitled to recover for damage caused him without intention and which resulted from the dangerous conduct to which he thus exposed himself.' The second was...