Case Brief

Carol and Gary Allen v. Dover Co-Recreational Softball League & a.
Strafford No. 2001-457
Briefed by Elizabeth Taylor
Submitted: July 26, 2002
Opinion Issued: September 30, 2002
Basic Facts of the Case: The plaintiffs, Carol and Gary allege that on September 13, 1998, Carol Allen was injured while participating in a recreational softball game, while she was running to first base. She was hit in the head by the shortstop of the opposing team. This game was an adult and slow pitch softball tournament. The teams that were playing in this tournament were part of the Dover Co-Recreational Softball League, (league) and were sponsored by the Amateur Softball Association Inc. (ASA). The games were played on a softball field that was owned by defendant Martel-Roberge American Legion Post #47 (American Legion). The teams were sponsored by defendant Daniel’s Sports Bar and Grill (Daniel’s) and defendant Thompson Imports (Thompson) who also provided t-shirts for the players. Defendant Bollinger Fowler Company (Bollinger) provided liability insurance for the league, ASA, the American Legion, the Daniel’s team and the Thompson team. The plaintiff was playing for the Daniel’s team, and was using a smaller softball made for women to be able to hit more competitively when playing with men, this was an official rule set forth by the ASA. The defendants did not recommend, require, or provide the use of helmets. The ASA official rules are that there be five men and five women for each team, this game consisted of seven men and three women on each team. When Carol Allen was batting for the first time, she hit a ball towards the shortstop. The male player for the Thompson team threw the ball toward first base in order to get the runner Carol Allen out, but instead the ball struck Carol in the head. This caused her cognitive deficiencies including impaired speech.
Issues raised in the Case: The plaintiff Carol Allen alleged at the time of the injury the smaller ball was used and that Carol Allen was not wearing a helmet. The plaintiff alleges several counts of negligence. First, the plaintiffs allege that the league and Daniel’s were negligent because when conducting the game they did not utilize all reasonable safety precautions including but not limited to the use of batting helmets for all players, they also did not follow the ASA official rule of five men and five women on each team. The plaintiff also alleged that the ASA “had a duty to warn, advise, inform and instruct its members regarding the risk of injury to participants in co-recreational softball games and the manner in which such risks could be minimized." The American Legion also had a duty to make sure that the softball games played on its field should comply with the ASA official rules. The plaintiff also alleges that Thompson “is vicariously liable for the negligence of its shortstop in errantly throwing the softball." Finally, the plaintiffs allege that because Bollinger provided risk management services to its insured’s – the league, ASA, the American Legion, the Daniel’s team and the Thompson team – "Bollinger had a duty to warn, advise, inform, and instruct its insured’s regarding the risk of injury to participants in co-recreational softball games and the manner in which such risks could be minimized." All of the defendants moved to dismiss the case, because of the inherent risk of injury that arose during the plaintiff Carol Allen participation in the softball game.

The Decision: The court ruled that participants do not owe a duty to other participants to refrain from "injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation" but rather participants "in recreational sporting events owe a duty to other participants to refrain from reckless or intentional conduct [that may injure the other participants]." Because the plaintiffs alleged that Thompson’s shortstop acted negligently, not recklessly or intentionally, when he errantly threw the ball, the court concluded, "Thompson Imports cannot be held vicariously liable under the circumstances of this case." The court found that the remaining defendants league, ASA, Daniel’s and Thompson, as sponsors and the American Legion owed the plaintiffs “a duty to refrain from reckless or intentionally causing risk of injury, the defendants conducted ordinary risk of injury inherent with playing recreational softball. The plaintiff did not allege anything about the conduct of the defendants, and that the plaintiff sustained serious injury because she was not wearing a helmet, so the court dismissed all counts of the plaintiffs’ writ.
Rationale of the Court: Although Carol Allen alleged negligence of all the defendants, the plaintiff did not allege any of the defendants to have acted reckless or any intentional conduct, that would cause injury to any of the participates.

Procedural History and Background: Carol and Gary Allen first filed suit on July 26, 2002 and were dismissed on September 30, 2002 due to the absence of any negligence of all defendants. The first thing examined was the Comparative Fault Statute.This statue does not apply in this case because the defendants did not allege that Carol Allen acted negligently, instead they argue that they did not owe any duty to protect her.
Next was the Assumption of the Risk. The plaintiff and the defendants did not agree as to what this term meant. The first theory of the assumption of risk applies when a plaintiff assumes all risk of injury to the defendant see See Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106 (1986). Under this theory the defendant is not liable for injuries suffered by the plaintiff, because the plaintiff knowing put herself in risk of injury. So this theory does not apply to this case, because a plaintiff releases a defendant from liability under this theory.
The second theory is when a defendant breaches a duty of care, which she owes to protect herself from harm. See Robinson v. Railroad, 85 N.H. 474, 475-76 (1932). In this theory it has been used to describe the plaintiff’s voluntary encounter, whether it is negligent or not. The plaintiff would be barred from recovery, SeeBrosor v. Sullivan, 99 N.H. 305, 308 (1954). A plaintiff who voluntarily encounters in a known danger, but they acted reasonable would be entitled to recover. The defendants in this case did not act negligent neither did Carol Allen so therefore this statue does not apply.
The third theory, implied assumption of risk is when a plaintiff voluntarily enters into a relation with a defendant, which means that the plaintiff assumes all obvious risk of injury. See Larsen v. Pacesetter Systems, Inc., 837 P.2d 1273, 1290-91 (Haw. 1992); Goodale v. York, 74 N.H. 454, 455 (1908). The defendants allege that this theory would apply.
The Defendants’ Duty, this theory would be if there is any duty of the defendants owed to Carol Allen, to protect herself against injury. In this case the defendants state that they did not owe the plaintiff any duty, which she decided to play softball. It was concluded that when Carol Allen decided to play softball she accepted the risk that were involved.

Other Notes, Comments, and Questions: In Sum, the plaintiff did not allege any facts that the defendants acted intentional, or reckless in any way. So if the plaintiff accepts the responsibility of playing ball, then he/she should be aware of the rules. So where the plaintiffs’ allegations did not constitute a legal basis for recovery, the trial court properly dismissed the case. See Young, 127 N.H. at 342 (court may determine that defendant’s conduct has conformed to standard as a matter of law).
Affirmed.

Notes from Instructor: Valliant effort briefing your first case! There are some comments above which relate to the placement of some of this information. Specifically, some more words as to why the court dismissed the argument about Comparative Fault. Good job overall. 8/10