Bell v Nichols and Inman (2014) H&FLR 2014-25

Alexias Bell v Kurt Nichols and Thomas Inman (2014) H&FLR 2014-25

Tenth Texas Court of Appeals

24 April 2014

Coram: Gray CJ, Davis and Scoggins JJ

Appearing for the Appellant: Renee E. Moeller and Susan Allison Kidwell
Appearing for the First Respondent: David Bradley and Trisha Danielle Ross (both of Walters, Balido & Crain)
Appearing for the Second Respondent: Russell Chip Pelley (of Pelley Law Office) and Joe Neal Smith  

Catchwords: Texas – college football – mascot – motorcycle – punch – civil procedure – admissions – want of prosecution

Facts: Bell (appellant) was employed by Sam Houston State University to attend a football game as a mascot*.  She was being driven to a pre-game function on the front of a four-wheel motorcycle driven by Inman (second respondent).  The second respondent allegedly ran into Nichols (first respondent), the coach of the opposing team, who punched the appellant and caused her to fall off the motorcycle.  She brought proceedings against the second respondent for negligence and against the first respondent for negligence, gross negligence, assault and battery and intentional infliction of emotional distress.

The appellant’s lawyer withdrew during the proceedings and for a period of time she was unrepresented.  During this time the first respondent sent requests for admissions to the appellant.  Four of the proposed admissions were to the effect that the respondents neither harmed her nor were the proximate cause of harm to her, had not caused intentional harm to her, and acted reasonably and prudently.  She objected to these admissions and the respondents applied to the court to deem the requests admitted.

After an abortive hearing on 28 December 2012 the matter was refixed for consideration on 26 March 2013, by which time the appellant had secured new representation.  Her new lawyer amended her response to the request for admissions to deny those to which she had previously objected.  The trial court granted the respondents’ motion to deem the admissions sought and dismissed the proceedings for want of prosecution.  The appellant appealed.

Held: Allowing the appeal –

1.  A court at first instance may dismiss a case for what of prosecution based on a defendant’s motion.  If the dismissal is appealed, and the dismissal order does not state the grounds on which it was dismissed, the appellant must show that each of the grounds alleged in the motion to dismiss is insufficient to support the decision to dismiss.  Here, the motion to dismiss was based solely on the appellant’s failure to appear at the (non-)hearing on 28 December 2012 and was an abuse of discretion.

Nichols v Sedalco Construction Services, 228 SW.3d 341 (Tex. App. – Waco 2007), followed.

2.  Where a party objects to an admission, Rule 215 of the Texas Rules of Civil Procedure allows a court to consider whether the objection is justified.  If not, it shall order that an answer be served.  It is not able to deem a matter admitted because of an improper objection.

Judgment

The Court’s judgment is available here.

An appeal appears to have been lodged.

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* Known as “Airkat“.

Sibley v Milutinovic (1990) H&FLR 2014-4

Sibley v Milutinovic (1990) H&FLR 2014-4

Supreme Court of the Australian Capital Territory

9 February 1990

Coram: Miles CJ

Appearing for the Plaintiff: Mr Lunney (Instructed by Macphillimy Cummins & Gibson)
Appearing for the Defendant: Self-represented

Catchwords: Australian Capital Territory – soccer – non-competitive match – tackle – punch – consent – rules.

Facts: The parties were members of two soccer teams which held a friendly training match on 27 May 1987. The match was unrefereed. Two incidents took place between the parties. In the first incident the plaintiff undertook a “low sliding tackle” which caused both men to fall over. The defendant abused the plaintiff and told him to watch out. In the second incident the plaintiff performed another slide tackle on the defendant, who again fell. The defendant got up and punched the plaintiff breaking his jaw. The defendant received a kick to the ankle in the tackle and for which he made a cross-claim. Both parties pleaded a defence of voluntary assumption of risk.

There was no evidence as to the rules of soccer. The court relied on judicial knowledge to find that while soccer involved some inevitable physical contact between players, the intentional use of force by one player against another was outside the rules where the force was likely to cause injury.

Held: Upholding both claims –

(1) The defence of voluntary assumption of risk is not appropriate to an action for assault. The court worked on the assumption that the parties had actually intended to raise a defence of consent.

(2) The blow to the plaintiff’s jaw was outside the rules and outside the scope of the plaintiff’s consent to some physical contact during the game. Hence, the plaintiff’s claim succeeded.

(3) Because the match was non-competitive, “the extent to which players were entitled to adopt tactics likely to result in physical injury to an opposiiung player is … to be distinguished from conduct justifiable during a competition match”.

(4) The court was not satisfied that the plaintiff’s slide tackles were within the rules that the parties had expected to be observed. Because the plaintiff had not proved that the defendant consented to the sliding tackle, the cross-action succeeded.

Judgment

The Court’s judgment is available here.