RENDLEN, Judge.
This is a damage suit for personal injuries sustained when plaintiff was knocked down during play in a softball game.
Plaintiff contends the trial court erred in granting judgment N.O.V. for defendant in that: (1) plaintiff did not assume the risk of collision with defendant; (2) defendant abandoned the affirmative defense of assumption
During a slow pitch Church league softball game, defendant-baserunner collided with plaintiff-third baseman, causing severe injury to plaintiff's left knee, which led to the instant action. According to plaintiff's witnesses,
Disputing plaintiff's account of the incident, defendant's witnesses
The case was submitted on a negligence theory, under the following instruction.
The plaintiff's verdict, assessing damages at $17,500, was set aside by the trial court and a judgment for defendant entered on the court's conclusion that as a matter of law plaintiff had assumed the risk of collision and only an action for an intentional tort, not mere negligence, could lie. From this judgment notwithstanding the verdict, plaintiff appealed.
We hold that the trial court erred in entering judgment for defendant but also conclude that a cause of action for personal injuries incurred during athletic competition must be predicated on recklessness, not
We are attracted to this analysis. Fear of civil liability stemming from negligent acts occurring in an athletic event could curtail the proper fervor with which the game should be played and discourage individual participation, yet it must be recognized that reasonable controls should exist to protect the players and the game. Balancing these seemingly opposite interests, we conclude that a player's reckless disregard for the safety of his fellow participants cannot be tolerated. If a plaintiff pleads and proves such recklessness, he may seek relief for injuries incurred in an athletic competition. Niemczyk v. Burleson, supra, to the extent it is inconsistent herewith, should no longer be followed. However, the factors enunciated by the Southern District in Niemczyk, which could render plaintiff's injury actionable, remain pertinent when the standard is recklessness, for whether a player's conduct gives rise to liability hinges upon the facts of the particular case. These factors include:
Plaintiff pled recklessness and while we do not decide the issue, it is reasonably arguable he made a case submissible under that allegation. However, because the case was mistakenly submitted and the jury found only on the issue of negligence, the cause is remanded for retrial under a theory of recklessness.
A plaintiff's assumption of the risk can be an affirmative defense to a charge of reckless conduct. Restatement (Second) of Torts §§ 496A and 503 (1965); Rule 55.08. Based on a voluntary consent, express or implied, to accept the danger of a known and appreciated risk, it bars recovery when plaintiff comprehended the actual danger and intelligently acquiesced in it. Turpin v. Shoemaker, 427 S.W.2d 485, 489-90 (Mo.1968).
In the case at bar, reasonable minds could have easily reached differing conclusions as to whether, based on the evidence, plaintiff assumed the risk of defendant colliding with him in the manner described. See, Bourque v. Duplechin, 331 So.2d 40 (La.App.1976), cert. denied, 334 So.2d 210 (La.1976). Accordingly, the trial court erred in stating that as a matter of law plaintiff assumed the risk, and if on retrial, the evidence follows the pattern of the record here, the question may be submitted for the jury's determination. See, Gregory v. Robinson, 338 S.W.2d 88, 91 (Mo.banc 1960).
The cause is reversed and remanded for a new trial consistent with the views expressed in this opinion.
SEILER, MORGAN, HIGGINS and BARDGETT, JJ., concur.
DONNELLY, C. J., dissents and concurs in separate dissenting opinion of WELLIVER, J.
WELLIVER, Judge, dissenting.
I respectfully dissent.
The evidence makes it clear that defendant's action constituted either an intentional tort or no tort at all. It therefore is unnecessary to decide whether participants in athletic events should be allowed to recover damages for injuries resulting from the acts of other participants that are not intentional but are either reckless or negligent. I agree with the principal opinion that mere negligence is an insufficient basis upon which to impose tort liability arising out of athletic competition. I am not as yet prepared to say that recklessness is a sufficient basis. That question is not necessary to a decision of this case, and I think it is unwise in advance of necessity to engrave into our law a new principle for the imposition of liability.
The yin-yang testimony elicited in this case would leave even an eyewitness to the event confused. The parties agree that plaintiff, the third baseman, was injured when defendant, the baserunner attempting to go from first base to third base on a hit to short center field, collided with him. Beyond that there is total disagreement. Plaintiff and two of his teammates claimed that plaintiff was twelve feet on the outfield side of third base when he received the throw from the short fielder and that defendant, after rounding second base, made no attempt to reach third but instead ran directly toward plaintiff and collided with him after making a head-first dive. Defendant, three of his teammates, and the umpire claimed that plaintiff was standing in the basepath approximately three feet on the second base side of third and that the collision occurred when defendant slid feet-first toward third in an effort to avoid plaintiff's tag and reach the base.
The two versions of the story are irreconcilable. If one accepts plaintiff's version, defendant's action rather obviously is an intentional tort, for which in the absence of consent plaintiff may recover. See Griggas v. Clauson, 6 Ill.App.2d 412, 128 N.E.2d 363 (1955) (basketball). See also Averill v. Luttrell, 44 Tenn.App. 56, 311 S.W.2d 812 (1957) (baseball). Plaintiff should be deemed to have consented to the contact unless the contact was prohibited "by rules or usages of the game if such rules or usages are designed to protect the participants and not merely to secure the better playing of the game as a test of skill." Restatement (Second) of Torts § 50 comment b (1965). See Tavernier v. Maes, 242 Cal.App.2d 532, 51 Cal.Rptr. 575 (1966) (softball). See also W. Prosser, Handbook of the Law of Torts § 18, at 101 (4th ed. 1971). If one accepts defendant's version of the facts, plaintiff has no basis for recovery whatsoever, because the contact was not prohibited by the rules or usages of the game. Defendant's conduct could not be considered negligent or reckless, and in any event plaintiff assumed any risk incident to the game. Perkins v. Byrnes, 364 Mo. 849, 853, 269 S.W.2d 52, 53 (1954).
It is unnecessary to hold in this case that a participant in an athletic event may recover damages for injuries resulting from the reckless conduct of another participant. That holding will do nothing more than open the door to needless litigation.
FootNotes
As a matter of social policy, recreation with less litigation may well be preferable to litigation with less recreation.
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