No. 1124 April Term, 1978, Appeal from Order Entered on July 5, 1978 in the Court of Common Pleas of Beaver County, Pennsylvania, at No. 1042 of 1972 by the Court en Banc, Civil Division.
W. Arch Irvin, Jr., Pittsburgh, for appellants.
Nick A. Frisk, Jr., Ellwood City, for Northeastern, appellee.
Oran W. Panner and Eric Anderson, Beaver, for Zimmerman, appellee.
Thomas Minett, Pittsburgh, for North and George, appellees.
Spaeth, Van der Voort and Watkins, JJ. Spaeth, J., files a dissenting opinion.
[ 283 Pa. Super. Page 157]
This is an appeal from the Order of the Court of Common Pleas of Beaver County by the plaintiff-appellant after the court below granted the defendants a compulsory non-suit at the conclusion of the plaintiff's case.
On July 13, 1970, the plaintiff sustained a severe injury to his right eye while participating in a touch football game on
[ 283 Pa. Super. Page 158]
the premises of the Riverside High School. The plaintiff was a 17 year old senior at the time and had participated in the high school football program at the Riverside High School the preceding year, having been a "starter" on both offense and defense, he had played touch football in gym class and had participated in basketball games and track. The particular type of touch football in which the plaintiff was engaged on the evening of his injury was referred to as "jungle football," was strongly encouraged by the football coaches as a part of the physical conditioning program for members of the varsity football team, and was conducted under the supervision of the high school football coaches.
At trial, "jungle football" was described as basically two-hand touch football. Each team had four downs in which to score and play began at a line of scrimmage established by the place of advancement of the ball on the previous down. The offensive team had set plays and the "play" would begin when the ball was "snapped" to the quarterback. Once the ball was "snapped" into play any number of forward, lateral, or backward passes could be made without regard to one's position on the field. A player was "downed" and the play ended either when the player carrying the ball was tagged with two hands by an opposing player or when a forward pass fell incomplete. The game, therefore, was essentially a game of two-hand touch football with the one exception being that a ball carrier could throw more than one forward pass and could throw the ball forward even though he had already crossed the line of scrimmage. Plaintiff had participated in this particular brand of football on prior occasions.
On the evening of his injury plaintiff was participating in one of the aforementioned games. The coaches were also engaged in the game as participants which they would often do when extra players were needed. At the time of the injury plaintiff's team had the ball. As the plaintiff, a halfback, was preparing to block the defendant, Gregg Zimmerman, a player on the opposing team, the ball carrier lateralled the ball to the plaintiff whereupon Zimmerman,
[ 283 Pa. Super. Page 159]
attempting to tag plaintiff, reached out with his hands and accidentally struck the plaintiff in his eye. As a result of the injury the plaintiff suffered a detached retina in his right eye.
On April 16, 1974, plaintiff having initiated suit previously by way of a praecipe, filed his complaint in trespass against the school district, Gregg Zimmerman, and the football coaches. The matter was tried in October of 1975 and on October 2, 1975 the court below granted a compulsory non-suit to the defendants after the plaintiff had presented his case. Subsequently the plaintiff's motion to take off the compulsory non-suit was denied and plaintiff took this appeal.
The granting of a motion for compulsory non-suit is proper only where the facts adduced at trial indicate that the plaintiff has failed to put forth sufficient evidence as is necessary to support his cause of action. McNett v. Briggs, 217 Pa. Super. 322, 272 A.2d 202 (1970). However, the mere happening of an accident is not evidence of negligence. Amon v. Shemaka, 419 Pa. 314, 214 A.2d 238 (1965). In order to establish negligence plaintiff must demonstrate that the defendants breached some standard of care owed by them to him. It is also well established that a compulsory non-suit may be granted where the plaintiff admits uncontradicted facts which establish an affirmative defense. Plummer v. Wesner, 217 Pa. Super. 24, 268 A.2d 144 (1970).
A voluntary participant in a sporting event assumes the ordinary risks incidental to that particular sport. Podvin v. Somerton Springs Swim Club, Inc., 406 Pa. 384, 178 A.2d 615 (1962). Participants in sports assume the risks of injury as part of the game. It is well known that the game of football involves a great amount of bodily contact. Plaintiff was an experienced participant in the game. By his decision to participate in the sport he obviously assumed the risks of injury inherent in any game involving ...