Tavernier v. Maes

SIMS, J.

Plaintiff has appealed from a judgment for the defendant entered on a jury verdict in an action in which he sought to recover damages occasioned by and attendant to a fractured ankle suffered when the defendant slid into him in the course of a family softball game.

He asserts that prejudicial error resulted when the trial court submitted the question of assumption of risk to the jury.

[535]

More specifically he urges that the defendant produced no evidence to entitle him to the benefit of the doctrine of assumption of risk, that the instructions which were used were erroneous and erroneously given, and that the error in giving these instructions was prejudicial.

An examination of the facts and pertinent law induces the conclusion that the defendant was entitled to have the issue of the applicability of the defense of assumption of risk left to the jury, and that the instructions which were given properly set forth both the criteria for determining if the doctrine should be applied and the elements it was necessary to establish before it could defeat recovery.

On July 4, 1961, plaintiff and defendant were each members of a group of 14 adults and 12 young children, of an age of 12 and under, who attended a family picnic at Robert’s Recreation Area, a public park. Similar family picnics had been held in prior years and the participants customarily assembled in the forenoon, leisurely partook of their lunch, and then engaged in a game of softball with all but the very eldest and very youngest participating. The group was principally the family of plaintiff’s wife, consisting of her brothers, Felix Maes and the defendant Leland Maes, and their wives, her sister, Mrs. Cain, and her husband, the Maes’ mother and her husband, and the grandparents on the Maes’ side of the family. One other couple, and the children, completed the assemblage.

On this occasion, after lunch, the ball was lobbed around at the picnic grounds, and then the plaintiff and others drove down to the baseball field to have a game of ball. The ball field they had played on in prior years was occupied, or under repair, so they went to a makeshift field adjacent to it. It had a backstop, but no grass, only stubble, and the terrain was rough. There were no base bags, just improvised bases, and second base was defined by a hole in the ground. Everyone rotated around in order to keep the men in the strong positions, on the bases or in the outfield, because they could play better, and the women were pitching or catching or playing where they would not be apt to make so many errors. A hit to right field was an automatic out because they had no right fielder. Plaintiff’s team consisted of himself and his wife, Mr. and Mrs. Cain, and their 12-year-old boy and defendant’s 8- and 6-year-old daughters. Defendant’s team was predominately adults, both men and women.