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HOWARD LEWIS RUTTER v. NORTHEASTERN BEAVER COUNTY SCHOOL DISTRICT (12/17/81)

decided: December 17, 1981.

HOWARD LEWIS RUTTER, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, BILLY DEAN RUTTER AND LUCY RUTTER AND BILLY DEAN RUTTER AND LUCY RUTTER, IN THEIR OWN RIGHT, APPELLANTS,
v.
THE NORTHEASTERN BEAVER COUNTY SCHOOL DISTRICT, GREGG ZIMMERMAN AND JOHN NORTH, AND THOMAS W. GEORGE, JR., APPELLEES



No. 81-1-21, Appeal from the Order of the Superior Court entered December 19, 1980, at No. 1124 April Term, 1978, affirming the Order of the Court of Common Pleas of Beaver County, Civil Action-Law No. 1042 of 1972.

COUNSEL

W. Arch Irvin, Jr. and R. E. Wayman, Irvin & McAuley, Pittsburgh, for appellants.

Richard J. Mills and Eric N. Anderson, Pittsburgh, for Thomas W. George, Jr. and John North.

Nick A. Frisk and Thomas Minett, Ellwood City, for Northeastern Beaver County School Dist.

Oran W. Panner, Beaver, for Gregg Zimmerman.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. O'Brien, J., concurs in the result. Roberts, J., files a dissenting opinion in which Wilkinson, J., joins. Nix, J., files a dissenting opinion in which Wilkinson, J., joins.

Author: Flaherty

[ 496 Pa. Page 594]

OPINION

On July 13, 1970, Howard Rutter, a boy of sixteen, was injured while participating in a Riverside High School summer football practice. The practice was supervised and conducted by two football coaches, appellees John North and

[ 496 Pa. Page 595]

Thomas W. George, Jr. At the time of the injury, the team, without wearing protective equipment, was engaged in a game of "jungle football." Rutter was injured when a player on the opposing side, appellee Zimmerman, struck him in the right eye with an outstretched hand, causing blindness due to a detached retina.

Rutter and his parents then filed suit against the Northeastern Beaver County School District, Riverside High School coaches Thomas W. George, Jr. and John North, and the opposing player, Gregg Zimmerman. The case went to trial and at the close of appellant's case, appellees moved for and were granted a compulsory non-suit. A motion to strike the non-suit was denied by the trial court en banc, and the decision was appealed to the Superior Court, 283 Pa. Super. 155, 423 A.2d 1035, who affirmed the denial, Spaeth, J., dissenting. We granted allocatur and reverse.

Appellant argues that (1) it was error for the court to enter a compulsory non-suit; (2) the lower court erred in refusing to admit expert testimony; and (3) the lower court erred in holding, as a matter of law, that appellant voluntarily assumed the risk of all injuries incurred in playing jungle football.

TRIAL ERRORS

The standard for reviewing the validity of a compulsory non-suit is as follows:

[ 496 Pa. Page 596]

McKenzie v. Cost Brothers, 487 Pa. 303, 307, 409 A.2d 362, 364 (1979). In other words, "[a] non-suit should be entered only in a clear case, and, on appeal from the refusal to take off a compulsory non-suit, the plaintiff must be given the benefit of all favorable testimony and every reasonable Page 596} inference of fact arising therefrom and all conflicts therein must be resolved in favor of plaintiff." (Emphasis supplied.) Cushey v. Plunkard, 413 Pa. 116, 117, 196 A.2d 295, 296 (1964).

The facts and testimony of record read in the light most favorable to the appellant reveal that appellant, at the time of the injury, was sixteen years old and was engaged in a pre-season football training and practice activity sponsored by Riverside High School. This practice, conducted under the supervision of the school's football coaches, proceeded without the use of protective equipment in spite of the fact that certain aspects of the practice involved rough body contact. Appellant had played football on the school team during the prior two years and had been a starting member of the team. He had also played "jungle football" during previous football practice sessions and was generally familiar with the game. Appellant and other members of the team attended a preseason football meeting during which the football coach informed them of the existence of the pre-season practice sessions and caused them to believe that if they did not attend the pre-season practice and training sessions, they would be unlikely to make the team. The practice sessions included various physical activities, such as weight lifting, running, hitting the blocking sled, and jungle football. Team members were expected to participate in all aspects of the practice sessions. On the day of the injury, the coach directed the team to begin a game of jungle football after other aspects of that day's practice had been concluded. Play in the jungle football exercise was rough, involving body blocks, tackling, and the participants played hard, hoping to impress the coaches. The coaches themselves played in the jungle football game, and during the game, therefore, were not in a position to supervise the play. Appellant testified that he did not anticipate the loss of an eye as an injury he was likely to suffer while playing football.

The game of jungle football as played by the Riverside football team was a variant on two-handed touch football in

[ 496 Pa. Page 597]

    which any number of players was able to participate. Each team had four downs in which to score, and play began at a line of scrimmage. After the ball was snapped, the ball carriers or receivers could throw any number of forward, lateral or backward passes without regard to the thrower's position on the field, either in front of or behind the line of scrimmage. Because of the unlimited passing of the ball, the game was fast-paced. Play was stopped when the ball carrier was tagged with two hands, or tackled, or when a pass fell incomplete.

The lower court held that appellant assumed the risk of the injury which he suffered; that appellant failed to make out a case of negligence; and that appellant's expert should not be permitted to testify. We first address the issue of expert testimony.

Appellant attempted to introduce the expert testimony of Frank Cipriani, a former coach, to establish that the coaches of the Riverside football team were not conducting summer football practice sessions in conformity with the safety standards maintained at other Pennsylvania high schools, and that the practice sessions were in violation of the rules promulgated by the Western Pennsylvania Interscholastic Athletic League (W.P.I.A.L.).*fn1 The Pennsylvania

[ 496 Pa. Page 598]

    standard of qualification for an expert witness is a liberal one. "If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he may testify, and the weight to be given to his evidence is for the jury." Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974). Coach Cipriani is a former football coach who has knowledge of the W.P.I.A.L. rules and the customary safety practices and procedures appropriate to high school football. As a former coach, Cipriani has specialized knowledge of the subject matter in question. His testimony is admissible provided that the ultimate determination of whether defendant's conduct was negligent is left to the jury and that the subject matter is not within the common knowledge of laymen. Densler v. Metropolitan Edison Co., 235 Pa. Super. 585, 593, 345 A.2d 758 (1975). In Reardon v. Meehan, 424 Pa. 460, 227 A.2d 667 (1967) we held that a qualified expert may be permitted to assert a relevant fact not generally known, but known to him because of his special training and experience. It seems clear that an experienced former football coach may have knowledge of the customs and safety standards utilized by coaches of high school football teams and of the rules imposed by the W.P.I.A.L. to insure minimum safety, which knowledge is not within the common knowledge of the average juror. This knowledge is relevant to the central question of negligence. The trial court, therefore, was in error in refusing to admit the testimony of Coach Cipriani.

[ 496 Pa. Page 599]

On the question of negligence, the trial court concluded that "no amount of supervision, instruction or equipment could have prevented" the injury, and for this reason, the negligence, if there was any, was not the proximate cause of the accident. The evidence, according to the trial court, "was not sufficient to permit the jury to consider the question of negligence." Remembering that in considering the validity of a compulsory non-suit, " the plaintiff must be given the benefit of all favorable testimony and every Page 599} reasonable inference of fact arising therefrom and [that] all conflicts therein must be resolved in favor of the plaintiff," Cushey v. Plunkard, supra, the trial court's determination that there was no question of negligence for the jury was patent error. As Judge Spaeth remarks in his dissent, both the majority of the Superior Court and the Court of Common Pleas sitting en banc, ignored the testimony favorable to the appellant and, instead, viewed the evidence in the light most favorable to the appellee, thus reversing the very standard of review under which they were supposed to be operating.

The Superior Court, for example, concluded that jungle football is no more dangerous than other forms of football and that the coaches were not negligent in their supervision of the game. Taking the evidence in the light most favorable to appellant, a "touch" football game in which tackling and body blocking occurs, which is initiated and supervised by the football coaches, in which no equipment is used, and which is played by team members attempting to impress coaches who are themselves engaged in the game, may be said at least to present a jury question as to the dangerousness of the game and the negligence of the coaches.

A further example of viewing the evidence in the light most favorable to appellees instead of to appellants, this time from the en banc opinion of the Court of Common Pleas, is the court's conclusion that protective equipment would not have prevented the injury and that the lack of supervision, if any, was not the proximate cause of the injury. Once again, taking evidence in the light most favorable to the appellant, a "touch" football game in which body blocking and tackling occurs, in which the coaches themselves participate instead of monitoring, may be said at least to present a jury question as to the negligence of the coaches in not providing protective equipment and in not monitoring the play. The lower courts were, therefore, in error in concluding that appellant had not made out a case of negligence sufficient to go to the jury.

[ 496 Pa. Page 600]

With regard to the assumption of risk issue, the trial court ruled that appellant, as a matter of law, was precluded from maintaining the action because he assumed the risk of the injury which he received. The doctrine of assumption of risk, as cited by the trial court, is articulated in the Restatement of Torts 2d at § 496 A: "A plaintiff who assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm." (Hereafter the Restatement of Torts 2d shall be cited merely as Restatement.) This statement of law, so far as it goes, is correct, but for the reasons that follow, we hold that the trial court erred in barring the appellant's action on the assumption of risk theory.

As indicated in Part II infra, the Restatement categorizes assumption of risk into four discrete types. § 496 A, comment c, 1-4. Type 2, which could be applicable to this case,*fn2 is described as follows:

2. [P]laintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.

Thus, appellant allegedly assumed the risk by voluntarily entering into the player-team relationship. The relief from responsibility granted a defendant under this section arises by operation of law and is a legal consequence of the relationship.

The Restatement authors give § 496 C as a further reference concerning this type of assumption of risk. Most importantly, section 496 C, comment "a" indicates that knowledge and voluntariness are elements of an implied assumption of risk, and that these elements are discussed at sections 496 D and E, respectively. The policy behind implied assumption of risk, indicated at § 496 C, comment "b", is that "the law refuses to permit one who manifests willingness that another shall continue in a course of conduct to

[ 496 Pa. Page 601]

    complain of it later if he is hurt as a result of it." The problems of knowledge and voluntariness will be discussed presently, but first we ...


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