Trustees of Trinity College v. Ferris, A97A1055

• Decision Date: 11 September 1997
• Docket Number: No. A97A1055,A97A1055
• Citation: 491 S.E.2d 909,228 Ga.App. 476
• Parties: , 121 Ed. Law Rep. 1167, 97 FCDR 3459 TRUSTEES OF TRINITY COLLEGE et al. v. FERRIS.
• Court: Georgia Court of Appeals

Page 909

491 S.E.2d 909

228 Ga.App. 476, 121 Ed. Law Rep. 1167,

97 FCDR 3459

TRUSTEES OF TRINITY COLLEGE et al. v. FERRIS.

No. A97A1055.

Court of Appeals of Georgia.

Sept. 11, 1997.

Certiorari Denied Jan. 30, 1998.

Woodall & MacKenzie, John T. Woodall, Peter A. Giusti, Savannah, for appellants.

Guy E. Davis, Jr., Atlanta, John P. Batson, Augusta, for appellee.

BLACKBURN, Judge.

On March 29, 1991, while practicing for a collegiate rowing regatta in Augusta, Eric W. Ferris, a member of the Trinity College men's varsity team, was injured when he was struck in the back by another boat operated by members of the women's varsity team. He sued the Augusta Rowing Club, the host of the event; the Trustees of Trinity College; Steve Fluhr, his coach; Norman T. Graf, the coach of the women's team; and Serena Lau, the coxswain of the boat that struck him. On the eve of trial, Ferris dismissed Augusta Rowing Club with prejudice. During trial, he dismissed Lau, saying that she did nothing wrong. The jury returned a verdict for Ferris against the remaining defendants, and the defendants appeal, alleging numerous errors.

1. Because Ferris had signed a release document releasing all regatta participants from any claims except those arising out of gross negligence or wilful or wanton misconduct, the primary issue at trial was whether appellants were guilty of gross negligence. Appellants contend that the court erred in denying their motion for directed verdict because there was no evidence of gross negligence.

"[I]n considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion.... [T]he standard of appellate review of the trial court's denial of a motion for a directed verdict is the 'any evidence' standard." (Punctuation omitted.) Mattox v. MARTA, 200 Ga.App. 697, 698(1), 409 S.E.2d 267 (1991).

The evidence revealed the following. Augusta Rowing Club was the sponsor of a rowing regatta to be held on Saturday, March 30, 1991. The Trinity College teams arrived a week early and practiced on the river every day. The race course was laid out in four lanes, with lane 1 closest to the Georgia shore and lane 4 closest to the South Carolina shore. The part of the river between the race course and the Georgia shore was designated lane 0, and the part between the race course and the South Carolina shore was designated lane 5. Prior to Friday, March 29, the traffic pattern for boats on the river was the usual counterclockwise or right-hand rule in effect for rivers. That is, boats were to proceed upstream on the right-hand side of the river and return on the left. However, on Friday, March 29, which was designated as practice day, the traffic pattern was changed to a left-hand rule to enable boats to practice on the actual course. On that day, boats were to proceed upstream on the left-hand side of the river along the race course, and, if they wished to continue practicing, return on the right-hand, or South Carolina, side (lane 5). If boats were finished practicing, they could return to the launch site along the left-hand side between lane 1 and the Georgia shore (lane 0). This left-hand rule was set forth in materials supplied to competing schools by the Augusta Rowing Club, which materials also provided that practice times were to begin at 8:00 a.m. on Friday morning.

Steve Fluhr was the coach of the men's team at Trinity College, and also oversaw the entire rowing program. On Friday morning, he informed the crews of the two men's boats that the left-hand rule was in effect. The two boats put into the water some time before 8:00 a.m. and proceeded with a practice run up lanes 1 and 2, with Fluhr following in a motorized launch. Each boat consisted of eight male rowers and one female coxswain. Only the coxswain was facing in the direction the boat was traveling, and her view was partially obstructed by the rowers ahead of her.

Fluhr, by way of deposition, testified that he noticed a women's boat coming downstream towards them, but believed it was outside the race course, between lane 1 and the Georgia shore. A witness in one of the boats testified that he heard Fluhr tell the coxswains of the men's boats that the women were coming down the river. However, Fluhr did not tell the coxswains to stop. The women's boat collided with one of the men's boats, severely injuring Ferris.

Lau, the coxswain of the women's boat, testified that she was never informed by her coach, Graf, that the left-hand rule was in effect on the day of the accident. Graf, by way of deposition, testified that he could not remember whether he had informed his team of the changed traffic pattern, or whether he had seen the material provided by the Augusta River Club regarding traffic patterns on the practice day. Fluhr testified that he had provided Graf with such materials. He also testified that he believed Graf should have been in the water on a launch with the women's team at the time of the accident.

"When facts alleged as constituting gross negligence are such that there is room for difference of opinion between reasonable men as to whether or not negligence can be inferred, and if so whether in degree the negligence amounts to gross negligence, the right to draw the inference is within the exclusive province of the jury." (Punctuation omitted.) Bostwick v. Flanders, 171 Ga.App. 93, 94, 318 S.E.2d 801 (1984). We believe the facts were sufficient to present a jury question regarding appellants' gross negligence. The jury could have concluded that Graf, as coach of the women's team, was grossly negligent in failing to advise Lau of the change in the traffic pattern, in failing to apprise himself of such change, and in failing to be on the water supervising his team at the time of the incident. The jury could have concluded that Fluhr had the best view of the situation and was grossly negligent in failing to stop the men's boats when he became aware of the presence of the women's boat on the course. The jury could also have concluded that Fluhr, as head of the rowing program, was grossly negligent in failing to ensure that the women's team was advised of the traffic pattern change. Accordingly, as there was evidence from which the jury could have found gross negligence, this enumeration is without merit.

2. Appellants contend that the trial court erred in failing to hold a pre-trial conference and issue a pre-trial order. We disagree.

This Court has held that "[i]t is error to refuse to grant a pre-trial hearing and order pursuant to [OCGA § 9-11-16] where a timely motion to this effect has been entered." Kickasola v. Jim Wallace Oil Co. 144 Ga.App. 758, 761(11), 242 S.E.2d 483 (1978); see also Malcolm v. Cotton, 128 Ga.App. 699, 701(6), 197 S.E.2d 760 (1973). However, it is not error to refuse a pre-trial conference where the motion is untimely. See Kickasola, supra at 762, 242 S.E.2d 483 (demand made on day of trial held untimely).

On April 24, 1995, the trial court denied appellants' motion for a pre-trial conference on the grounds that it was not timely. The court noted that the motion had not been filed until after the case was placed on a ready list for trial, and that the case would be called for trial before a conference would be held. Based on the record before us, we cannot say that the trial court erred in this ruling.

After the trial court's ruling, however, the case did not proceed to trial until June 25, 1996, 14 months after the order denying the motion. During this 14-month interim, there is nothing in the record to indicate that appellants filed a renewed motion or otherwise renewed their request to the court to hold a pre-trial conference, notwithstanding the untimeliness of any such request. It was not until the day of trial that appellants indicated they were not waiving their right to a pre-trial conference.

In these circumstances, the court did not err in failing to hold a pre-trial conference. The April 24, 1995 order clearly stated that the motion was being denied because it was untimely, and in any event, the case would be called for trial before the conference could be held. Once it became apparent that the case would not proceed to trial as anticipated, it was incumbent on appellants to renew their request for a pre-trial conference, which they did not do. Appellants cannot sit quietly for 14 months, and then on the day of trial complain that they have been denied a pre-trial conference. Accordingly, this enumeration is without merit.

3. Appellants contend they were entitled to a directed verdict on the grounds of Ferris' assumption of the risk. They note that the release document signed by Ferris in connection with the regatta stated that "I acknowledge that ... [b]y virtue of my participation I risk bodily injury[,] paralysis, dismemberment, and death, and other loss including damage to property.... I knowingly and freely assume all such risk." In order to compete in athletic activities for Trinity College, Ferris also signed documents stating that he "[h]as been informed and understands that there are inherent risks involved in sports competition. These risks may involve serious physical injury including catastrophic head and back injuries or even death."

"In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.... The knowledge that a plaintiff who assumes a risk must subjectively...