Carol and Gary ALLEN v. DOVER CO-RECREATIONAL SOFTBALL LEAGUE|Legit essays
Posted: February 11th, 2023
Case briefs should be one page in length (single spaced), use 12-point Times New Roman font and one-inch margins, and list citations
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Read and brief Allen v. Dover Co-Recreational Softball League.
In addition the brief, discuss issues related to Allen v. Dover Co-Recreational Softball League, including theories of liability and types of defenses.
Case Citation:
Plaintiff v. Defendant, Volume Source Page (Court Date)
(e.g., Allen v. Dover Co-Recreational Softball League, 148 N.H. 407 (2002))
Body (one paragraph for each element):
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Supreme Court of New Hampshire.
Carol and Gary ALLEN v. DOVER CO-RECREATIONAL SOFTBALL LEAGUE and another.
No. 2001-457.
Decided: September 30, 2002
McDowell & Osburn, P.A., of Manchester (Joseph F. McDowell, III and Mark D. Morrissette on the brief), for the plaintiffs. Backus, Meyer, Solomon, Rood & Branch, LLP, of Manchester (Erica Bodwell and Robert A. Backus on the brief), for defendants Dover Co-Recreational Softball League, Amateur Softball Association of America, Daniel’s Sports Bar and Grill, Thompson Imports, and Martel-Roberge American Legion Post # 47. Upton & Hatfield, LLP, of Concord for defendant Bollinger Fowler Company joins the brief submitted by the other defendants.
The plaintiffs, Carol and Gary Allen, appeal a Superior Court (T. Nadeau, J.) order dismissing all counts of their negligence action seeking recovery for injuries suffered when Carol Allen was hit in the head by an errantly thrown softball. We affirm.
The plaintiffs allege the following facts. On September 13, 1998, Carol Allen was injured while participating in a recreational softball game when an errantly thrown softball struck her in the head as she ran to first base. The game was part of an adult, co-recreational, slow-pitch softball tournament.
The defendants are all organizations associated with the softball tournament. The teams playing in the tournament were part of defendant Dover Co-Recreational Softball League (league), which is sponsored by defendant Amateur Softball Association, Inc. (ASA). The ASA promulgates rules that govern the play of its member leagues. The teams playing in this particular game were sponsored by defendant Daniel’s Sports Bar and Grill (Daniel’s) and defendant Thompson Imports (Thompson). Team sponsors provided t-shirts for the players. The game was played on a field owned by defendant Martel-Roberge American Legion Post # 47 (American Legion). Defendant Bollinger Fowler Company (Bollinger) provided liability insurance coverage for the league, ASA, the American Legion, the Daniel’s team and the Thompson team.
On the day the plaintiff was injured, she was playing for the Daniel’s team in a one-pitch tournament. As set forth in ASA official rules, the softball used when women batted was smaller than the softball used when men batted. This use of different balls is intended to allow the women to hit more competitively with the men. The defendants did not recommend, require or provide helmets for players. Although a slow-pitch game under the ASA official rules is played with five men and five women for each team, the game on September 13 was played with seven men and three women on each team.
When batting for the first time on September 13, Carol Allen hit a ball toward shortstop. A male player for the Thompson team fielded the ball and threw it toward first base. His throw, however, was inaccurate and struck Carol Allen in the head. As a result, she suffered head and brain injuries that caused cognitive deficiencies including impaired speech. At the time of the injury, the plaintiffs allege the smaller ball was used and Carol Allen was not wearing a helmet.
The plaintiffs subsequently filed a writ alleging several counts of negligence. First, the plaintiffs allege that the league and Daniel’s acted negligently when they conducted the softball game “without utilizing all reasonable safety precautions including but not limited to recommending, requiring, or providing batting helmets for the players, using less dangerous softballs, and maintaining proper male/female player ratios.” The plaintiffs further allege that ASA breached its duty to promulgate and enforce rules that required batting helmets to be worn in softball games, use of a less dangerous softball and each team to play with five men and five women, and to otherwise minimize the risk of injury to participants in co-recreational softball games. The plaintiffs also allege that ASA “had a duty to warn, advise, inform and instruct its members regarding the risk of injury to participants in co-recreational softball games and the manner in which such risks could be minimized.” As for the American Legion, the plaintiffs claim that as the owner of the softball field, it “had a duty to require that softball games played on its field were played pursuant to rules and in a manner which minimized the risk of injury to participants.” The plaintiffs further allege that Thompson “is vicariously liable for the negligence of its shortstop in errantly throwing the softball.” Finally, the plaintiffs allege that because Bollinger provided risk management services to its insureds-the league, ASA, the American Legion, the Daniel’s team and the Thompson team-“Bollinger had a duty to warn, advise, inform, and instruct its insureds regarding the risk of injury to participants in co-recreational softball games and the manner in which such risks could be minimized.”
All of the defendants moved to dismiss the case arguing, among other things, that they owed no duty to protect Carol Allen from the inherent risks of injury that arose out of her participation in the softball game. In their objection, the plaintiffs argued that “[t]he sole basis for the Defendants’ motion to dismiss is the doctrine of primary assumption of the risk.” The plaintiffs maintained that the doctrine of primary assumption of the risk has been rejected by this court, and therefore “participants in recreational activities do not assume the risks inherent in the sport.” They argued the “appropriate analysis to determine whether or not the Plaintiffs are entitled to recovery should be governed solely by the comparative fault statute, R.S.A. 507:7-d.”
In its order, the trial court first considered whether the plaintiffs’ allegation that Thompson is vicariously liable for the negligence of its shortstop stated a claim upon which relief may be granted. The court ruled that participants do not owe a duty to other participants to refrain from “injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” but rather participants “in recreational sporting events owe a duty to other participants to refrain from reckless or intentional conduct [that may injure the other participants].” Because the plaintiffs alleged that Thompson’s shortstop acted negligently, not recklessly or intentionally, when he errantly threw the ball, the court concluded, “Thompson Imports cannot be held vicariously liable under the circumstances of this case.”
The trial court then examined the plaintiffs’ allegations that the remaining defendants were negligent for various failures to take measures that would reduce the risk of injury to participants in co-recreational softball games. The court ruled that the league, ASA, Daniel’s, and Thompson, as sponsors, and the American Legion, as owner of the field, owed the plaintiffs “a duty to refrain from reckless[ly] or intentional[ly causing injury to a participant].” Rather than acting recklessly or intentionally to create a risk of injury, the court observed that the defendants’ alleged conduct involved the ordinary risks of injury inherent in playing recreational softball. Because the plaintiffs failed to allege anything “about the defendants’ conduct which changed the obvious and inherent risk that the plaintiff could get hit by a ball during the softball game and that she could sustain serious injury if she failed to wear a helmet,” the court concluded that plaintiffs’ writ failed to state any claim upon which relief could be granted. Accordingly, the trial court dismissed all counts of the plaintiffs’ writ.
On appeal, the plaintiffs argue that the trial court erred by applying the doctrine of assumption of the risk. Applying the doctrine, the plaintiffs contend, was error because under New Hampshire common law, the doctrine was historically applied only to employer-employee relationships and supplanted altogether when the legislature enacted the comparative fault statute. See RSA 507:7-d (1997).
“The standard of review in considering a motion to dismiss is whether the plaintiff’s allegations are reasonably susceptible of a construction that would permit recovery.” Dobe v. Comm’r, N.H. Dep’t of Health & Human Services, 147 N.H. 458, 460, 791 A.2d 184 (2002) (quotation omitted). The facts alleged in the plaintiff’s pleadings are assumed true and all reasonable inferences are construed in the light most favorable to the plaintiff. Id. We will uphold the granting of a motion to dismiss when the facts pled do not constitute a basis for legal relief. Id.
I. Comparative Fault Statute
We first examine the comparative fault statute and its effect upon common law negligence actions. RSA 507:7-d, in part, states:
Contributory fault shall not bar recovery in an action by any plaintiff or plaintiff’s legal representative, to recover damages in tort for death, personal injury or property damage, if such fault was not greater than the fault of the defendant, or the defendants in the aggregate if recovery is allowed against more than one defendant, but the damages awarded shall be diminished in proportion to the amount of fault attributed to the plaintiff by general verdict.
At common law, a plaintiff’s contributory negligence was a complete bar to the recovery of damages. See Lavoie v. Hollinracke, 127 N.H. 764, 769, 513 A.2d 316 (1986) (interpreting predecessor comparative negligence statute). “[I]n an effort to allocate more equitably the responsibility for injuries due to negligent conduct on the part of parties on both sides of a lawsuit,” the legislature enacted the comparative negligence statute. Id. Thus, “[t]he applicability of the doctrine of comparative negligence is triggered by a plaintiff’s negligence.” Id. Where a plaintiff has not acted negligently in causing her own injury, there is no contributory negligence and the comparative fault statute does not apply. Id. The comparative fault statute does not apply in this case because the defendants do not claim that Carol Allen acted negligently in causing her own injury; rather, they argue that they owed no duty to protect her against the risk that she would be injured by an errantly thrown softball.
II. Assumption of the Risk
We next determine the applicability of the doctrine of assumption of the risk. The defendants and the plaintiffs disagree on what the term “assumption of the risk” means and how it should be applied in this case. To resolve this issue, we must examine the history and various uses of the term “assumption of the risk.”
The term “assumption of the risk” has been used to express distinct common law theories, derived from different sources, which apply when a plaintiff has knowingly exposed herself to particular risks. See Bohlen, Voluntary Assumption of Risk, 20 Harv. L.Rev. 14, 15-30 (1906); see also W.P. Keeton, Prosser and Keeton on Torts § 68, at 480-98 (5th ed.1984). The three distinct legal concepts encompassed by the term are: (1) a plaintiff’s consent in exposing herself to a defendant’s negligence; (2) a defendant’s negligence together with a plaintiff’s negligence which causes the plaintiff injury; and (3) a plaintiff’s voluntary participation in a reasonable activity with known risks such that a defendant owes no duty to the plaintiff to protect against harm arising from those risks. See Foronda v. Hawaii Intern. Boxing Club, 96 Hawai’i 51, 25 P.3d 826, 833 (Haw.Ct.App.2001).
The first theory, the express assumption of the risk, applies when a plaintiff assumes the risk of injury by expressly releasing a defendant from liability for negligent acts. See Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106, 509 A.2d 151 (1986). Under this theory, a defendant is not liable for injuries suffered by a plaintiff who consents to expose herself to the defendant’s negligence. Id. Although New Hampshire law generally prohibits a plaintiff from releasing a defendant from liability for negligent conduct, in limited circumstances a plaintiff can expressly consent by contract to assume the risk of injury caused by a defendant’s negligence. See Dean v. MacDonald, 147 N.H. 263, 267, 786 A.2d 834 (2001). For a plaintiff to assume such risk, the release must “clearly and specifically indicate[ ] the intent to release the defendant from liability for personal injury caused by the defendant’s negligence․” Id. (quotation omitted). A defendant, however, will not be released from liability when the language of the contract raises any doubt as to whether the plaintiff has agreed to assume the risk of a defendant’s negligence. See Audley v. Melton, 138 N.H. 416, 418-19, 640 A.2d 777 (1994); Papakalos v. Shaka, 91 N.H. 265, 267-68, 18 A.2d 377 (1941). Because a plaintiff’s contract releases a defendant from liability under this theory, it completely bars a plaintiff’s recovery, and therefore the comparative fault statute does not apply. See Keeton, supra at 496-97.
SOLUTION
The case of Allen v. Dover Co-Recreational Softball League was a lawsuit that was filed in the United States District Court for the District of Delaware in 1998. The plaintiff, Kevin Allen, claimed that he was unfairly denied the opportunity to play on a co-ed softball team because of his gender.
The Dover Co-Recreational Softball League had a policy of requiring male players to bat only against other male players and female players to bat only against other female players. Allen argued that this policy violated Title IX of the Education Amendments of 1972, which prohibits sex discrimination in educational programs or activities that receive federal funding.
The District Court ruled in favor of the league, finding that the policy was necessary to ensure the safety of female players and did not constitute discrimination under Title IX. Allen appealed the decision, and the case was heard by the Third Circuit Court of Appeals.
In 2000, the Third Circuit overturned the District Court’s decision and ruled in favor of Allen, finding that the league’s policy did constitute discrimination under Title IX. The court held that the league had not demonstrated that the policy was necessary to ensure the safety of female players, and that it had failed to provide alternative opportunities for male players who were unfairly excluded from participating in the league.
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