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Atlanta National League Baseball Club v FF & Ors (2014) H&FLR 2014-43

Atlanta National League Baseball Club v FF & Ors (2014) H&FLR 2014-42

Georgia Court of Appeals

11 July 2014

Coram: Barnes PJ, Boggs and Branch JJ

Appearing for the Appellant: The Hon Leah Ward Sears and Mr Ronald Gaither (of Schiff Hardin LLP) and Mr Bradley Wolff and Ms Pamela Lee (of Swift, Currie, McGhee & Hiers LLP)
Appearing for the Respondent: Mr Matthew Dwyer (of Dwyer Law Group), Messrs Peter Law and Michael Moran (both of Law & Moran) and Ms Amanda Evans.

Catchwords: Georgia – baseball – infant plaintiff – foul ball – injury – baseball rule – declaratory judgment – negligence

Facts: The plaintiff, a six year old girl, attended a baseball game at the home ground of the Atlanta Braves. While sitting in a part of the stadium behind the visitors’ dugout, she was hit in the head by a foul ball, suffering serious injuries. By her litigation guardian, she issued proceedings against the defendant for negligence.

The defendant applied for a declaratory judgment as to the applicable standard of care under Georgia’s Declaratory Judgment Act, which relevantly provides (OCGA §9-4-2) that –

(a) In cases of actual controversy, the … superior courts of this state shall have power, upon … appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration …; and the declaration shall have the force and effect of a final judgment … and be reviewable as such.

(b) In addition …, the … superior courts of this state shall have power, upon … appropriate pleading, to declare rights and other legal relations of any interested party petitioning for the declaration … in any civil case in which it appears to the court that the ends of justice require that the declaration should be made; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.

The court denied the application: FF v Atlanta National League Baseball Club (Fulton County State Court, Porter J, 3 January 2013, unreported). The defendant sought interlocutory review of the denial, arguing that the trial court should have declared that the ‘baseball rule’* formed part of the law of Georgia.

Held: Dismissing the application, that a party seeking a declaratory judgment must show that it is necessary in order to relieve the party of the risk of taking action that, without direction, would jeopardise their interests. It is not available where the parties rights and liabilities have already accrued. In this case, the event giving rise to the defendant’s putative liability had already occurred. The declaratory judgment process would not be an appropriate means of testing the defence that their duty of care was met by observing the requirements of the ‘baseball rule’.

Thomas v Atlanta Casualty Co, 253 Ga. App. 199, 588 SE.2d 432 (2001) and Porter v Houghton, 273 Ga. 407, 542 SE.2d 491 (2001), followed.

Judgment

The Court’s judgment is available here.

=====================================

* As to which, see South Shore Baseball LLC v DeJesus (2014) H&FLR 2014-39 and Coomer v Kansas City Royals (2014) H&FLR 2014-41

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Coomer v Kansas City Royals (2014) H&FLR 2014-41

John Coomer v Kansas City Royals Baseball Corporation (2014) H&FLR 2014-41

Supreme Court of Missouri

24 June 2014

Coram: Court en banc (Judgment by Wilson J)

Appearing for the Appellant: Robert Tormohlen (of Lewis, Rice & Fingersh)
Appearing for the Respondent: Scott D. Hofer (of Foland, Wickens, Eisfelder, Roper & Hofer, PC )

Catchwords: Missouri – baseball – mascot – hotdog toss – baseball rule – injury – negligence – assumption of risk – inherent risk

Facts: On 8 September 2009 the plaintiff attended a baseball game at Kauffman Stadium between the Kansas City Royals and the Detroit Tigers. Since 2000 a feature of Royals’ home games has been the practice of their mascott (“Sluggerrr“)* tossing hotdogs to members of the crowd. The plaintiff saw Sluggerrr commence throwing hotdogs. He turned to look at the scoreboard and at that moment was hit in the face by a hotdog, causing injury to his left eye.

He commenced proceedings against the defendant alleging negligence and battery. A jury in the trial court returned a finding of no negligence: Coomer v Kansas City Royals Baseball Corporation (2011), The Pitch Blog, 9 March 2011. The plaintiff appealed.

Held: Allowing the appeal –

1. An implied primary assumption of risk by a plaintiff can be identified from their conduct and the surrounding circumstances, including whether a risk is inherent to the activity. Where this has occurred, a plaintiff who knowingly and voluntarily encounters that risk is barred from seeking compensation for resulting injuries. This defence is not affected by the acceptance in law of the principle of comparative fault

Krause v US Truck Co Inc, 787 SW.2d 708 (Mo. 1990), followed.
Gustafson v Benda, 661 SW.2d 11 (Mo. 1983), considered.

2. The “baseball rule”, whereby a ballpark owner is not considered negligent for failing to protect all seats in the park with wire netting and failing to warn a plaintiff about obvious hazards incidental to baseball, is an example of the principle of applied primary assumption of risk.**

Hudson v Kansas City Baseball Club, 164 SW.2d 318 (Mo. 1942); Anderson v Kansas City Baseball Club, 231 SW.2d 170 (Mo. 1950), considered.

3. Where a plaintiff’s injury results from a risk that is not an inherent part of watching baseball, or if the defendant’s negligence has increased the inherent risks and caused the injury, negligence may be found.

Lowe v California League of Professional Baseball, 56 Cal.App.4th 112 (1997), followed.

4. Whether a risk is ‘inherent’ for the purposes of implied primary assumption of risk is a question of law and not of fact. A risk is inherent if it is so intertwined with the relevant activity that it cannot be controlled or limited without abandoning the activity altogether. In this case the risk if injury from the ‘hotdog toss’ was not an inherent part of watching the Royals play baseball, and a risk which the plaintiff assumed by attending the game.

Loughran v The Phillies, 888 A.2d 872 (Pa. 2005); Cohen v Stirling Mets LP, 17 Misc.3d 218 (NY Sup. Ct. 2007), distinguished.

Judgment

The Court’s judgment is available here.

=================================
* Properly, one John Byron Shores.
** South Shore Baseball LLC v DeJesus (2014) H&FLR 2014-39.

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South Shore Baseball LLC v DeJesus (2014) H&FLR 2014-39

South Shore Baseball LLC and Anor v Juanita DeJesus (2014) H&FLR 2014-39

Supreme Court of Indiana

27 June 2014

Coram: Dickson CJ, Massa, Rucker, David and Rush JJ

Appearing for the Appellant (Defendant): James R Branit, Mitchell H Frazen, and Nicholas J Parolisi (of Litchfield Cavo LLP)
Appearing for the Appellee (Plaintiff): Walter J Alvarez, Duke T Escue, and David A Wilson (of Alvarez Law Office)
Appearing for an Amicus Curiae (Indianapolis Indians): Andrew B. Janutolo and RD Zink (of Goodin Abernathy)

Catchwords: Indiana – baseball – spectator – foul ball – injury – baseball rule – negligence – premises liability

Facts: On 23 May 2009 the plaintiff attended a minor-league baseball game in support of the South Shore RailCats. Warnings of the danger of foul balls leaving the field were printed on the plaintiff’s ticket, posted on a sign near her seat, and announced over a loudspeaker prior to the start of play. However, the plaintiff sat in a part of the stadium just outside of the are protected by the netting behind home plate. Early in the game the baseball left the playing field, striking the plaintiff and causing serious injuries.

The plaintiff brought proceedings against the operators of the RailCats on the basis that, by failing to extend the protective netting further, they had negligently failed to make the premises (US Steel Yard) reasonably safe for her as a business invitee.

The defendants applied for summary dismissal of the plaintiff’s claim. The trial court declined same: DeJesus v South Shore Baseball LLC (Lake Superior Court, Hawkins J, 16 March 2012, unreported). The defendants’ appeal was allowed: South Shore Baseball LLC v DeJesus, 982 NE.2d 1076 (Ind. Ct. App. 2013). The matter was then transferred to the Supreme Court of Indiana.

Held: Allowing the appeal and granting summary judgment for the defendants, that –

1. The ‘Baseball Rule’, whereby a ballpark operator is protected from liability for injuries from an object leaving the playing field if they have provided screening behind home plate sufficient to meet ordinary demand for protected seating, is not part of the common law of Indiana.

Emhardt v Perry Stadium, 46 NE.2d 704, 113 Ind. App. 197 (1943), doubted.

2. The applicable principle of premises liability law in this case is that a possessor of land is liable for harm to invitees caused by a condition of the land if the possessor should reasonably know of the condition and realise it involves an unreasonable risk of harm to the invitees, and should expect that the invitees will not identify the danger or protect themselves against it, and fails to take reasonable care to protect the invitees from the danger. There was no reason for the defendants to consider that the plaintiff would not realise the danger or protect herself against it.

Pfenning v Lineman, 947 NE.2d 392 (Ind. 2011), applied.

Judgment

The Court’s judgment is available here.

Posted on by Stephen Tuck

Pelman v McDonald’s Corporation (2003) H&FLR 2014-33

Ashley Pelman and Ors v McDonald’s Corporation and Ors (2003) H&FLR 2014-33

United States District Court (S.D.N.Y.)

22 January 2003

Coram: Sweet DJ

Appearing for the Plaintiffs: Mr Samuel Hirsch (of Samuel Hirsch & Associates)
Appearing for the Defendants: Messrs Thomas Quigley, Bradley Lerman and Bruce Braun (of Winston & Strawn) and Mesdames Anne Kimball and Sarah Olson (of Wildman, Harrold, Allen & Dixon)

Catchwords: New York – infant – McDonald’s – overweight – heart disease – diabetes – hypertension – high cholesterol – deceptive acts – negligence – puffery – failure to warn

Facts: The plaintiff was an infant who had consumed the hamburgers and other items sold by the defendant. She had become overweight and developed (inter alia) heart disease, diabetes, hypertension and high cholesterol. She issued proceedings aganst the defendant, alleging deceptive acts and practices breaching the Consumer Protection Act, N.Y. General Business Law, §349 and §350 (by failing to disclose the ingredients and/or health effects of their products) and the N.Y.C. Administrative Code, Ch. 5, 20-700 (in relation to the defendant’s marketing practises). She also alleged that the defendant had negligently sold products which caused negative health effects and which were addictive, and that it had failed to warn cusomers of the makeup of its products and the health-effects of consuming them.

The defendant sought summary dismissal of the complaint under r.12(b)(6) of the Federal Rules of Civil Procedure.

Held: Dismissing the complaint with leave to re-plead –

1. The plaintiff had not identified an instance of deceptive acts or advertising to children, and therefore the allegations on these points had to be dismissed.

2. Obiter, that encouraging consumers to eat McDonald’s “everyday!” was mere puffery absent a claim that doing so would have particular health effects.

Coastal Communications Corp. v. Adams/Laux Co Inc, 40 USPQ 2d 1383-1996 (SDNY, 24 September 1996), considered.

3. An allegation of liability to consumers based on their over-consumption of products will fail if the effects of overconsumption are common knowledge. In order to state a claim it would be necessary to allege that the products are so extraordinarily unhealthy as to be (a) outside the reasonable contemplation of consumers, or (b) dangerous even in their intended use. The Court noted the significant processing undergone by the defendant’s products and gave leave to amend the complaint to raise allegations on the point.

4. For the claim to survive an application to dismiss, it would be necessary to show that the plaintiff ate at McDonalds on enough occasions to raise a question as to whether its products played a significant role in her health problems. The more often she ate there, the more likely it was that its products had caused her injuries. Further, the complaint would need to address any impact from other variables (for example, genetics).

5. A manufacturer will not be liable for a failure to warn of its products’ unhealthy attributes if the risks are sufficiently obvious without a warning. However, this does not apply where elements of the hazard are concealed or not reasnably apparent to the user.

Andrulonis v United States, 924 F. 2d 1210 (2d Cir., 1991); Liriano v Hobart Corp., 92 NY.2d 232, 677 NYS.2d 764, 700 NE.2d 303 (NY, 1998), followed.

Judgment

The Court’s judgment is available here.

Posted on by Stephen Tuck

Hinojosa v Livingston (2014) H&FLR 2014-28

Ramona Hinojosa v Brad Livingston and Ors (2014) H&FLR 2014-28

United States District Court (S.D. Texas)

16 January 2014

Coram: Ramos J

Appearing for the Plaintiff: Jeff Edwards (of Edwards Law)
Appearing for the Defendants: Not identified.

Catchwords: Texas – prison – negligence – hyperthermia – hypertension – diabetes – depression – schizophrenia – obesity – death – Americans with Disabilities Act – Rehabilitation Act – Federal Rules of Civil Procedure

Facts:  On 29 August 2012 the plaintiff’s son died of hyperthermia while incarcerated in a prison operated by the Texas Department of Criminal Justice.  The plaintiff alleged that the defendant had failed to accommodate the deceased’s disabilities (particularised as hypertension, diabetes, depression, schizophrenia and obesity), resulting in his death.  It was contended that this breached the Americans with Disabilities Act (42 USC §12132) and the Rehabilitation Act (29 USC §794), giving her a entitlement to recover damages.

The defendant applied to dismiss the proceedings for failure to state a claim under r. 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively that she be required to re-plead sufficient facts to identify the elements of her causes of action under the Acts.

Held: Denying the application, that –

1.  It was sufficient to state a claim for the plaintiff to allege that the defendant knew of the risks and dangers of certain health conditions and medications, that it knew the deceased suffered from those conditions and used those medications, and that despite having that knowledge, the defendant failed to make reasonable accommodations, as a result of which the deceased suffered greater pain and punishment than non-disabled prisoners (i.e. death).  Although all inmates faced the same environmental conditions, they were more burdensome for the deceased because of his disabilities.

2.  If a defendant knows of an individual’s disability and needs but takes no action, it will not be necessary for the disabled person to have requested an accommodation to state a claim under the Americans with Disabilities Act.

McCoy v Texas Department of Criminal Justice, CA No. C-05-370 (S.D. Tex. May 19, 2006), followed

Judgment

The Court’s judgment is available here.

Posted on by Stephen Tuck

Wittorf v City of New York (2014) H&FLR 2014-26

Rhonda Wittorf v City of New York (2014) H&FLR 2014-26

Court of Appeals of New York

5 June 2014

Coram: Lippman CJ, Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam JJ

Appearing for the Plaintiff (Appellant): Brian J Shoot (of Sullivan Papain Block McGrath & Cannavo)
Appearing for the Defendant (Respondent): Ronald E Sternberg (of New York City Law Department
Appearing as Amicus Curiae: New York State Trial Lawyers Association

Catchwords: New York – negligence – road works – closure of road – cyclist – road defect – fall off bicycle – governmental function – proprietary function

Facts: On 5 November 2005, an employee of the defendant with a works crew attended Central Park to repair certain defects in the roadway beneath an underpass. Before starting work, the employee went to an entrance to the park to close it to vehicular transport with traffic cones. As he did so, the plaintiff and a third party arrived and asked if they could use the roadway on bicycles. They were told it was “okay to go through”. As they did so, the plaintiff encountered the defects which he crew had been sent to repair, fell off her bicycle and was injured. She commenced proceedings seeking compensation from the defendant in the Supreme Court of New York.

At trial, a jury found that the defendant’s employee was negligent in allowing the plaintiff to use the roadway and that this negligence was a substantial factor in causing her injuries. The defendant successfully applied to the Court to set the verdict aside on the grounds that the employee was carrying on a governmental function at the time of the accident*. An appeal to the Appellate Division was dismissed**. The plaintiff appealed to the Court of Appeals.

Held: per curiam, upholding the appeal –

1. If a municipality is engaged in a proprietary (as opposed to governmental) function when the claim arises, it is subject to being sued under the ordinary rules of negligence. It will be engaging in a proprietary function if the activity substitutes for or supplements traditionally private activity. It will be engaging in a govenmental function if its acts are undertaken for the protection and safety of the public under the general police power.

Applewhite v Accuhealth Inc, 21 NY.3d 420 (2013), followed.

2. A municipality has a proprietary duty to keep roads and highways in a reasonably safe condition, and the function remains proprietary regardless of limitations on liability imposed by “prior written notice” laws or whether the function is carried out by the municipality’s maintenance crews.

Friedman v State of New York, 67 NY.2d 271 (1986), followed. Bruni v City of New York, 2 NY.3d 319 (2004) and Amabile v City of Buffalo, 93 NY.2d 471 (1999), considered.

3. In the present case, although the City’s employees had not yet begun the repairs, the works could not be performed without closing the road to traffic and so the closure was integral to the repair work and part of the proprietary function. By contrast, had the crew been seeking to control access to the scene for the protecion of the public in general (a governmental function), this may have rendered the traffic control decision governmental.

Balsam v Delma Engineering Corporation, 90 NY.2d 966 (1997), distinguished.

Judgment

The Court’s judgment is available here.

==================================

* Wittorf v City of New York , 33 Misc 3d 368 (2011).

** Wittorf v City of New York, 104 AD.3d 584 (1st Dept, 2013)

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Rosenblatt v St George Health & Racquetball Associates LLC (2014) H&FLR 2014-22

Eleanor Rosenblatt v St George Health & Racquetball Associates LLC (2014) H&FLR 2014-22

Supreme Court of New York (Appellate Division)

30 April 2014

Coram: Eng PJ, Dillon, Leventhal and Miller JJ

Appearing for the Plaintiff:  Stephen R Loeb.

Appearing for the Defendant: Kevin J. O’Donnell (instructed by Kenny & Zonghetti LLC)

Catchwords: New York – body sculpting – exercise ball – negligence – assumption of risk – summary dismissal

Facts: St George Health & Racquetball Associates (defendant) operates the Eastern Athletic Club in Brooklyn.  In May 2009 Rosenblatt (plaintiff), aged 72 years, attended a ‘body sculpting’ class at the club.  The instructor (a substitute filling in for the regular instructor) gave each of the participants an exercise ball to sit on.  The plaintiff had not previously used an exercise ball.  When she sat on it, it rolled, causing her to fall and suffer injury.

The plaintiff brought proceedings against the club on the basis that it had negligently failed to train, supervise or provide for an appropriate instructor.  However, she conceded that she was responsible for her own safety in class and that she was able to decide what activities she could safely perform.  She also conceded that she had not expressed concern over her lack of experience with an exercise ball nor expressed unwillingness to use it. The defendant responded that any injuries sustained by the plaintiff were caused by her own conduct and that the doctrine of primary assumption of risk barred her from recovering compensation.  It sought summary dismissal of the complaint.  The Supreme Court declined to dismiss on procedural grounds*.  The defendant appealed.

Held: Allowing the appeal and dismissing the proceedings, that the trial court’s refusal of the application on procedural grounds was mistaken.  Considering the application to dismiss on the merits –

1. The doctrine of primary assumption of risk** does not bar liability if the risk is not assumed, is concealed or is unreasonably increased. Alqurashi v Party of Four Inc, 89 AD.3d 1047 (2011) and Demelio v Playmakers Inc, 63 AD.3d 777 (2009), followed.

2. (Sua sponte) The plaintiff, by voluntarily sitting on an exercise ball , assumed the inherent risk that it could roll and cause her to fall. Berry v Bally Total Fitness Corp, 272 AD.2d 354 (2000), considered.

3. It was relevant that the plaintiff was not required to use the exercise ball. Quaere whether the position would be different if the plaintiff had been obliged to use it. Calouri v County of Suffolk, 43 AD.3d 456 (2007)

Judgment

The Court’s judgment is available here.  The plaintiff elected not to pursue an appeal.

================

* Eleanor Rosenblatt v St George Health & Racquetball Associates LLC (Sup. Ct. N.Y., Battaglia J, 17 August 2011, unreported).

** As to which, see Custodi v Town of Amherst (2012) H&FLR 2014-18.

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Custodi v Town of Amherst (2012) H&FLR 2014-18

Robin Custodi v Town of Amherst & Ors (2012) H&FLR 2014-18

New York Court of Appeals

30 October 2012

Coram: Lippman CJ, Ciparick, Read, Smith, Pigott, Jones and Graffeo JJ

Appearing for the Appellant: Joel B Schechter (of Bennett, Schechter, Arcuri & Will LLP)

Appearing for the Respondent: Robert J Maranto

Catchwords: New York – rollerblading – residential street – fall – assumption of risk – duty of care – athletic or recreational activities

Facts: In July 2007 Robin Custodi (respondent) was injured while rollerblading in a residential street when she hit a two inch height differential where the driveway belonging to one Muffoletto (appellant) met a drainage culvert, causing her to fall. 

The respondent commenced proceedings in negligence against the defendant.  The appellant sought summary judgment from the Supreme Court which was granted on the basis of the respondent’s voluntary assumption of risk*.  On appeal, the Appellate Division found that the doctrine of primary assumption of risk did not apply and that there was a triable issue of fact with regard to proximate cause**.  The appellants appealed to the Court of Appeals.

Held: Per curiam, dismissing the appeal –

1. The principle of “primary assumption of risk” means that a plaintiff who freely accepts a known risk commensurately negates any duty of a defendant to protect them from that risk.  This principle applies when a consenting participant in a relevant activity is aware of an understand the risks and voluntarily assumes them.  The risks must be known, apparent or reasonably foreseeable to the plaintiff.

Trupia v Lake George Central School District, 14 NY.3d 392 (2010), Bukowski v Clarkson University, 19 NY.3d 353 (2012) and Benitez v New York City Board of Education, 73 NY.2d 650 (1989), followed.

2. Where a plaintiff has made a primary assumption of risk, the defendant’s duty is to make the conditions as safe as they appear to be.

Turcotte v Fell, 68 NY.2d 432 (1986), followed.

3. A plaintiff does not assume risks which are concealed, unreasonable enhanced, or caused by reckless or intentional conduct of other people.

Morgan v State of New York, 90 NY.2d 471 (1997), followed

4. The principle of primary assumption of risk is in general limited to particular athletic and recreational activities on the grounds that while they involve increased risks, they have significant social value and it is appropriate to shield coparticipants, sponsors and venue providers from liability.  The appellants were not providers of a means of a means of athletic or recreational activities and so this case was not appropriate for the application of the principle.  Further, it would be an excessive expansion of the doctrine to treat sidewalk defects or dangerous premises as inherent risks assumed by joggers, runners, cyclists and rollerbladers.

Ashbourne v City of New York, 82 NY.3d 461 (2011), Cotty v Town of Southampton, 64 AD.3d 251 (2009), Trupia v Lake George Central School District, 14 NY.3d 392 (2010), Bukowski v Clarkson University, 19 NY.3d 353 (2012) and Benitez v New York City Board of Education, 73 NY.2d 650 (1989), considered.

Judgment

The Court’s judgment is available here.

===========================================

*   Custodi v Town of Amherst (Supreme Court of New York, Feroleto J, 24 February 2010, unreported).

**  Custodi v Town of Amherst, 81 AD.3d 1344 (2011)

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Michelle Rios v Grossmont Union High School District (2013) H&FLR 2014-15

Michelle Rios & Ors v Grossmont Union High School District (2013) H&FLR 2014-15

Fourth District Court of Appeal for California

16 December 2013

Coram: McConnell PJ, Irion and O’Rourke JJ.

Appearing for the Appellant: Mark C. Choate (of Choate Law Firm) and Jon R. Williams (of Boudreau Williams LLP)

Appearing for the Respondent: Daniel R. Shinoff and Paul Vincent Carelli (both of Stutz Atiano Shinoff & Holtz APC)

Catchwords: California – high school – football – ankle injury – returned to play – tackle – spinal injury – negligence – standard of care – jury instructions –  appeal

Facts: Michelle and Reymond Rios were the parents of Colter Rios, who suffered a spinal injury while playing for a high school football team organised by the defendant.  He sustained an ankle injury during play and, after having the ankle strapped by a college student who was studying athletic training (rather than the school’s athletic trainer himself), was returned to the field.  After rejoining play, he was tackled by an opposing player and suffered significant injuries.

Master Rios and his parents brought proceedings against the defendant school district.  They alleged that the District had negligently allowed him to continue to play following his ankle injury.  The parties agreed that the ordinary standard of care applied, with the further detail that adults must anticipate the ordinary behaviour of children and be more careful in dealing with children than in dealing with other adults.  The jury was permitted to consider the community’s customs or practices in assessing what a reasonable person would have done in the circumstances.  It was also agreed by the plaintiffs that the standard of care to be observed by school staff is that which a person of ordinary prudence and having comparable duties would exercise under the same circumstances.  They did not ask that the jury be given any particular instructions based on the standards of the National Athletic Trainers’ Association standards or of the California Interscholastic Federation.

The jury returned a finding of no negligence.  The plaintiffs appealed.

Held: Per curiam, dismissing the appeal –

1.            The court at first instance had correctly instructed the jury as to the law: in a claim for injuries suffered in a high school football game, the standard of care required of a school official is that which a person of ordinary prudence, with the same responsibilities and in the same circumstances, would exercise.

Pirkle v Oakdale Union Grammar School District, 253 P.2d 1, 40 Cal.2d 207 (1953), followed.

2.            When the relevant law has been stated correctly in a general charge to the jury, a party may not argue on appeal that a more specific instruction should have been given, unless they at the time requested a more specific instruction be given.

White v Inbound Aviation, 69 Cal.App.4th 910, 82 Cal.Rptr.2d 71 (1999), followed.

No finding was made on whether more specific instructions should actually have been given to the jury.

Judgment

The court’s judgment is available here.  The Supreme Court of California declined to consider an appeal.

Posted on by Stephen Tuck

Pallante v Stadiums Pty Ltd (1975) H&FLR 2014-12

Pallante v Stadiums Pty Ltd and Ors (1975) H&FLR 2014-12 †

Supreme Court of Victoria

9 April 1975

Coram: McInerney J

Appearing for the Plaintiff: Mr Waldron QC and Dr C Pannam (instructed by KD Opat)
Appearing for the First Defendant: Mr O’Bryan QC and Mr J Larkins (instructed by John Cain and Peter Lamers)
Appearing for the Second Defendant: Mr Hedigan QC and Mr J Sher (instructed by Mercer, Lewenberg and Pryles)
Appearing for the Third Defendant: Mr F Dyett (instructed by Seton, Williams and Smith)
Appearing for the Fourth Defendant: No appearance

Catchwords: Victoria – boxing – unlawful – injury – referee – trainer – promoter – negligence – mismatch – abuse of process – amendment of pleadings

Facts:  The plaintiff, Martin Pallante* was a semi-professional boxer** who suffered eye injuries on 23 April 1970 in a boxing match which was conducted by Stadiums Pty Ltd, which had engaged the second defendant (Norman Foster) as referee and matchmaker.  He sought compensation from Stadiums and Foster, and also from his trainer (Sydney Thompson) and the fight promoter, Franco Marsili. It was alleged that, among other things, the defendants’ negligence resulted in the bout being a significant mismatch against a stronger boxer, Rocky Mattioli***.

The initial hearing of the case was terminated by the trial judge (Kaye J) on the grounds that a contemporary media report had introduced a risk of unfairness to the parties: Pallante v Stadiums Pty Ltd and Ors (1974), The Age, 10 December 1974, at 5.

Prior to the new trial commencing, the defendants applied to dismiss the proceeding on the basis that it was an abuse of process. On behalf of the first defendant it was argued that the plaintiff was engaged in an unlawful prize fight and could claim no damages for injuries so sustained. At the same time the plaintiff applied to amend his statement of claim.

Held: Dismissing the defendants’ application and allowing the plaintiff’s application –

1. Fighting between two persons who are not hostile to each other, and who do so in circumstances not likely to produce meaningful injuries or to incite them to hostility, is not an assault nor a breach of the peace. However, it may become an assault if a spirit of hostility develops and some or all parties develop the intention of inflicting substantial physical harm. The question is not determined by whether or not the fight is in public or private, for money or while using boxing gloves.

R v Coney (1882) 8 QBD 534, considered.

2. Physical violence is not an assault inflicted during a sporting contest which the participants have entered upon with the understanding that each accepts the risk of violence normally expected as part of the sport.

R v Moore (1898) 14 TLR 229 and R v Bradshaw (1878) 14 Cox CC 83, followed.

3. Boxing is not unlawful at common law provided it is conducted predominantly as an exercise in boxing skill and physical condition, consistent with rules which aim to keep injuries within reasonable limits and to reduce as far as possible the risk of serious injuries and to ensure that victory goes to the person with greater boxing skill. Whether a fight is unlawful or not must be decided on the evidence and is a jury question.

4. As a general rule, any amendments to a party’s pleadings should be allowed which will permit the real questions in issue to be litigated.

Judgment

The Court’s judgment is available here.

=======================

† The classic report of this case is that at [1976] VR 331. Because the Court has recently made a copy of McInerney J’s original judgment available, and because more can now be reported about the parties and the case, the present headnote has been prepared.

* Also known as Bernie Martin.

** A contemporary report gives Martin Pallante’s occupation as ‘carpet layer’, although he is also said to have fought five professional bouts before the fight the subject of the claim: ‘Bout was a massacre, says boxer’, The Age (Melbourne), 6 December 1974, at 5.

*** A comparison of Pallante’s boxing record with Mattioli’s suggests the latter was by far the stronger fighter.