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HomeMy WebLinkAbout00-8572 CIVILDOUGLAS DEITRICH AND IN THE COURT OF COMMON PLEAS OF LUCINDA DEITRICH, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. CRAIG CHARLES, DEFENDANT 00-8572 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J AND GUIDO, J. OPINION AND ORDER OF COURT Bayley, J., March 6, 2002:-- Plaintiffs, Douglas Deitrich and Lucinda Deitrich, his wife, instituted this suit against defendant, Craig Charles, for damages resulting from an injury to the eye of Douglas Deitrich on January 5, 1999. Defendant filed a motion for summary judgment that was briefed and argued on February 13, 2002. In deciding the motion, "we must view the record in a light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Washington v. Baxter, 719 A.2d 733 (Pa. 1998). The record in a light most favorable to plaintiffs is as follows. Douglas Deitrich and defendant were employees of PHICO at its Cumberland County headquarters. PHICO operates a gymnasium which is attached to the headquarters. Only PHICO employees, family members of employees and guests of employees are permitted to use the gymnasium. The gymnasium can be used before, during, and after work hours. PHICO employees enter the 00-8572 CIVIL TERM gymnasium with a passkey provided by PHICO. Plaintiff and defendant were in a stickball league made up of PHICO employees. A schedule setting up stickball matches was prepared by defendant, it was distributed to league participants, and a PHICO email system was used to notify its participants of schedule changes and league standings. Equipment stored in the gymnasium was available for use by stickball league participants. On January 5, 1999, plaintiff and defendant went to the gymnasium at approximately 7:00 a.m., to participate in a league stickball match before going to work. Plaintiff, defendant, and two other men were warming up by throwing tennis balls against the wall about 25 to 30 feet away. The men were standing about eight feet apart. Plaintiff who was to the right, and next to defendant, decided to stretch with a bat. He walked to his left behind the other men, and then went to the wall where they had been throwing balls, to get a bat. He got a bat and walked along the wall in front of the other men who stopped throwing so he could get to the other side. Plaintiff went to a taped square box at the front of the wall which was about eight feet to the right and 25 to 30 feet to the front of defendant. He began stretching with the bat similar to how a golfer uses a golf club to stretch. After about two minutes, defendant threw a ball that instead of it hitting the wall, accidentally struck plaintiff in the left eye. Plaintiff alleges that defendant was negligent in striking him in the eye with the ball. Defendant filed this motion for summary judgment, maintaining that (1) he owed plaintiff no duty of care, and (2) plaintiff's remedy is exclusively under the Pennsylvania Worker's Compensation Act. As to the first proposition, in Staub v. Toy Factory, Inc., 749 A.2d 522 (Pa. Super. 2000), the Superior Court of Pennsylvania stated: -2- 00-8572 CIVIL TERM Our supreme court appears to have concluded that in a negligence action, the question whether a litigant has assumed the risk is a question of law as part of the court's duty analysis, and not a matter for jury determination. Howefl v. Clyde, 533 Pa. 151, 160-64, 620 A.2d 1107, 1112-13 (1993) (plurality). See also Struble v. Valley Forge Military Academy, 445 Pa. Super. 224, 232, 665 A.2d 4, 8 (1995). In Hardy v. Southland Corp., 435 Pa. Super. 237, 243-45, 645 A.2d 839, 842 (1994), appeal denied, 539 Pa. 679, 652 A.2d 1324 (1994), this court concluded that until the supreme court adopts clearer standards, assumption of risk should be analyzed according to the lead (plurality) opinion in Howefl. Under this "modified" form of the doctrine, assumption of risk is no longer an affirmative defense in most cases;6 rather, it is incorporated into an analysis of whether the defendant owes a duty to the plaintiff. Id.; Zinn v. GichnerSys. Group, 880 F.Supp. 311,318 (M.D.Pa. 1995). "Howefl states that the trial court is obligated to review the factual scenario and determine whether '[u]nder those facts,.., the defendant, as a matter of law, owed the plaintiff no duty of care.'" Hardy, 645 A.2d at 842, citing Howell, supra at 162-64, 620 A.2d at 1113. This court has also held that "a plaintiff will not be precluded from recovering except where it is beyond question that he voluntarily and knowingly proceeded in the face of an obvious and dangerous condition and thereby must be viewed as relieving the defendant of responsibility for his injuries." Struble, 665 A.2d at 6, citing Long v. Norriton Hydraulics, Inc., 443 Pa. Super. 532, 662 A.2d 1089 (1995), appeal denied, 544 Pa. 611,674 A.2d 1074 (1996) (emphasis in Struble). As the plurality observed in Howell, supra, "the court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately and with awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced his injury." Howe//, supra at 162, 620 A.2d at 1113 (plurality). As the Howe//court continued, "If, on the other hand, the court is not able to make this determination and a nonsuit is denied, then the case would proceed and would be submitted to the jury on a comparative negligence theory." /d. The Howe//court noted that "[u]nder this approach... assumption of the risk would no longer be part of the jury's deliberations or instructions." /d. (Footnotes 5 and 7 omitted.) (Emphasis added.) 6 In products liability cases, assumption of risk is still analyzed as an affirmative defense rather than as part of a 'no duty' analysis. Hardy, 645 A.2d at 842. -3- 00-8572 CIVIL TERM See also Romeo v. Pittsburgh Associates, 787 A.2d 1027 (Pa. Super. 2001). In Bowser v. Hershey Baseball Association, 357 Pa. Super. 435 (198(5), the defendant operated a baseball program. The plaintiff was a commissioner of one of the leagues. During tryouts, batters would bat from a point between home plate and a backstop. Except for the pitcher, batter, and on-deck batter, all other players were scattered on the field. As part of his duties to ensure that each participant was evaluated, the plaintiff kept track of the roster, and called participants from the field to bat. After he had been standing behind the backstop for about two hours, the plaintiff walked to a player's bench where other adults were standing. As he turned his back to call on two more participants, he was struck in the eye by a batted ball. In affirming a compulsory nonsuit against plaintiff, the Superior Court concluded that the plaintiff voluntary exposed himself to the risks inherent in baseball, such as being hit by a batted ball, thus, defendant owed no duty to plaintiff. In Johnson by Johnson v. Walker, 37(5 Pa. Super. 302 (1988), the Superior Court of Pennsylvania stated that "[u]nless the record reveals a duty owed by [defendant] to [plaintiff], the foundation of a negligence claim is absent, thus, [plaintiff has] no basis for recovery." The facts were that the plaintiff and the defendant were playing one-on-one stickball on a street in Philadelphia. After two innings, the defendant asked the plaintiff if he could take a turn at bat. The plaintiff handed the broomstick/bat to the defendant and proceeded to walk to a car about ten feet away. A few minutes later, the plaintiff saw defendant swing at a ball, hitting it in his direction. Before he could react, the ball struck the plaintiff in his right eye, causing him to lose sight in the eye. In upholding a grant of summary judgment by the trial court, the -4- 00-8572 CIVIL TERM Superior Court stated: We find nothing on the record which evidences, even remotely, a cause of action against appellees for negligence. The deposition testimony reveals the boys were playing ball in a normal fashion, according to the rules as they knew them with no one acting in a dangerous or unreasonable manner and no horseplay was involved. Obviously, foul balls do occur and unfortunately this one hit appellant in the eye. As tragic as it may be, accidents happen everyday in which people get hurt and often no one is at fault. Appellants would have us find that in any situation where someone is hurt by an inadvertent and unintentional act of another, the actor should be liable. We refuse to hold to such an extreme result. In Oliver v. Chartiers-Houston Athletic Association, 28 D. & C.4th 484 (Washington County 1995), the facts were: On May 8, 1992, the minor plaintiff, Nicholle Oliver, was struck in the head by a softball at Hickory Field, Mt. Pleasant Township, Washington County, Pennsylvania. Resolving facts and inferences in favor of the plaintiffs, as we must, the court finds that although Nicholle was dressed in her softball uniform, she was not going to play that day. As members of her team were engaged in warm-ups prior to the game, Nicholle was standing and talking to some teammates at a point off the field of play but near the batting cages. Robin Theiss, one of the defendants, retrieved a softball which she had missed catching; she picked up the ball and threw it back to her teammate in the path of the area where Nicholle was standing. Unfortunately, the ball struck Nicholle in the right temple, causing serious injuries. Citing Bowser v. Hershey Baseball Association, supra, the trial court concluded: [w]e note that the Bowser court refused to distinguish a tryout from an actual game. The same situation is extant in this scenario: the plaintiff was standing off the field itself, but the fact that no actual game was in progress is of no moment. Whether spectator or participant, Nicholle was in the zone of danger, and one within this zone must assume the common, frequent, and expected risks inherent in the sport. These risks include being struck by a batter ball and an errant ball thrown by another participant. Moreover, whether she was near the batting cage or off the main field of play is of no real concern in this context. The record shows she was near the playing field itself, not in an area protected from the field. As a matter of common knowledge, risks inherent in warm-ups are more likely to be more serious, for in warm-ups many youths are throwing and -5- 00-8572 CIVIL TERM catching many balls. In the instant case the minor plaintiff was in uniform, a member of the team, though she would not be playing that day. She knew warm-up was going on. She was standing and talking to her friends, at a place near the main field where the warm-up was taking place. The no-duty rule applies to this situation where the risks are common, frequent, and expected: the minor plaintiff can be properly charged as a matter of law with the risk of being struck by a softball improperly thrown by other participants during warm-up. The analysis made by the trial court in Oliver, which we view as correct, fits the facts in the case sub judice. The no-duty rule applies here because plaintiff was warming up on the gymnasium floor where defendant and others were throwing tennis balls nearby. The risk of being accidentally struck by an errantly thrown ball during warm-ups for the stickball game was a type of common, frequent, and expected risk inherent in such an athletic activity. Accordingly, the following order is entered.1 ORDER OF COURT AND NOW, this day of March, 2002, the motion of defendant for summary judgment, IS GRANTED. By the Court, Edgar B. Bayley, J. 1 This resolution makes it unnecessary to decide if plaintiff's remedy is exclusively under the Pennsylvania Worker's Compensation Act. -6- 00-8572 CIVIL TERM Thomas E. Brenner, Esquire For Plaintiffs Derek D. Bahl, Esquire For Defendant :sss -7-