On June 9, 1974, Jerome Bourque(Plaintiff) was playing second base on a softball game. Duplechin(Defendant), a member of the opposing team had hit the ball and advanced to first base. After his teammate hit the ball, to avoid double play Duplechin ran at full speed into Bourque. As Duplechin ran into Bourque, he brought his left arm up under Bourque's chin. Plaintiff Bourque filed this suit to recover damages for personal injuries received in the collision.
The trial court rendered judgement in favor of plaintiff against both defendants(Duplechin and Duplechin's liability insurer, Allstate Insurance Company). Both Duplechin and Allstate contend that the trial court erred: in not finding that Bourque assumed the risk of injury by participating in the softball game and was guilty of contributory negligence. Duplechin also contends that the trial court erred in negligent. Allstate further contends that the coverage under its policy which excludes injury intended or expected by the insured.
1. Whether the plaintiff was guilty of contributory negligence and assume the risk of particular accident? 2. Whether the defendant Allstate coverage was excluded under the terms of its policy or not? 3. Whether the Duplechin's action was intended tort or negligence?
plaintiff Bourque's injuries resulted from negligence of defendant Duplechin; Bourque was not guilty of contributory negligence and did not asuume the risk of this particular accident; and defendant Allstate did not prove that coverage was excluded under the terms of its policy.
For applying contributory negligence, Bourque should assume the risk of Duplechin's collision. Nevertheless, Duplechin's action was unusual and unsportsmanlike conduct. 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...