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
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
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 recklessly] or intentionally causing injury to a participant].” Rather than acting recklessly or intentionally to create a risk of injury, the court observed that the
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,
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 plaintiffs 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 plaintiffs contributory negligence was a complete bar to the recovery of damages. See Lavoie v. Hollinracke,
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 plaintiffs consent in exposing herself to a defendant’s negligence; (2) a defendant’s negligence together with a plaintiffs 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,
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.,
The second theory, the secondary implied assumption of the risk, applies to situations where a defendant breaches a duty of care owed to a plaintiff and the plaintiff also breaches a duty of care she owes to protect herself against the harm. See Robinson v. Railroad,
The third theory, the doctrine of primary implied assumption of the risk, applies when a plaintiff voluntarily and reasonably enters into some relation with a defendant, which the plaintiff reasonably knows involves certain obvious risks such that a defendant has no duty to protect the plaintiff against injury caused by those risks. See Larsen v. Pacesetter Systems, Inc.,
The doctrine originated in the master-servant context. See Kambour v. Railroad,
By the early 1900’s, the duty owed by a master to his servant changed. See Genest v. Company,
When, however, a defendant owes no duty to a plaintiff in light of a particular risk, the defendant cannot be held accountable to a plaintiff who is injured upon the plaintiffs voluntary encounter with that risk. See La Fontaine v. St. John, 92 N.H. 319, 321 (1943) (employer had no duty to warn employee not to “occupy so precarious a position” when employer could not “have anticipated that any [employee] would [act in such a way]”). In other words, a defendant who has no duty cannot be negligent. Walls v. Oxford Management Co.,
III. Defendants'Duty
Under this theory, we must determine what duty if any the defendants owed to Carol Allen to protect her against the risk that she would be injured when she participated in the softball game. The defendants argue that they owed no duty to protect her against the risk that she might be injured when a softball struck her head because that was an ordinary risk of playing co-recreational softball, a reasonable activity in which she voluntarily participated. We conclude that when Carol Allen voluntarily played softball — a reasonable activity that she knew involved obvious risks — the defendants had no duty to protect her against injury caused by those risks.
However, even if there is no duty to protect a plaintiff against ordinary risks, we must address the standard of care that co-participants, sponsors and organizers owe to participants in recreational sports activities when
The defendants argue that we should adopt a standard of care that holds participants, sponsors and organizers liable for reckless or intentional conduct only. Several other courts have adopted this standard of care for participants. See Knight v. Jewett,
The defendants, however, argue that, “recreational athletic activities would be chilled without a recklessness standard.” We believe that the negligence standard, properly understood and applied, is suitable for recreational athletic activities because the conduct of a participant, sponsor or organizer is measured against the conduct that a reasonable participant, sponsor or organizer would engage in under the circumstances. See Lestina v. West Bend Mut. Ins. Co.,
Participating in a sport gives rise to “commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” Hacking v. Town of Belmont,
To determine the appropriate standard of care to be applied to participants, sponsors and organizers of recreational athletics, we consider: (1) the nature of the sport involved; (2) the type of contest, i.e., amateur, high school, little league, pick-up, etc.; (3) the ages, physical characteristics and skills of the participants; (4) the type of equipment involved; and (5) the rules, customs and practices of the sport, including the types of contact and the level of violence generally accepted. See Lestina,
In this case, we first consider the nature of the sport of softball. The sport of softball is a reasonable activity, commonly played by men, women and children of varying skill levels. Consistent with this wide variety of players, a wide variety of rules are applied. Whether played by men, women or children, skilled or unskilled, participation in a softball game generally gives rise to the risk that a player may be struck by a ball that has been hit by a batter or thrown by a fielder.
Under the circumstances of this game, the only duty the defendants had was not to act in an unreasonable manner that would increase or create a risk of injury outside the range of risks that flow from participation in an adult co-recreational softball game. The plaintiffs argue the defendants’ duty specifically included taking the following actions: (1) participants had a duty to not make errant throws when fielding the ball; (2) the league, Daniel’s and Thompson had a duty to utilize all reasonable safety precautions in their conduct of the games; (3) the American Legion and ASA had a duty to promulgate or enforce rules that would minimize the risk of injury; and (4) ASA and Bollinger had a duty to warn, advise, inform and instruct the league regarding the risk of injury to participants and the manner in which such risks could be minimized. We examine each act the plaintiffs contend was required of the defendants in turn.
The plaintiffs first argue that the shortstop had a duty to not make an errant throw when fielding the ball. Participants in an adult co-recreational slow-pitch softball game have a duty to not create an unreasonable risk of injury. When fielding the ball, therefore, a fielder has a duty to not act unreasonably. In other words, the fielder has a duty to not act in a manner outside the range of the ordinary activity involved in playing softball. Cf. Picou v. Hartford Ins. Co.,
The plaintiffs next argue that the league, Daniel’s and Thompson had a duty to utilize all reasonable safety precautions in their conduct of the games. Reasonable safety precautions, according to the plaintiffs’ writ, “includfed] but [were] not limited to recommending, requiring, or providing batting helmets for the players, using less dangerous softballs, and maintaining proper male/female player ratios.” Because we assume the facts as pled by the plaintiffs are true, we will assume that Daniel’s and Thompson as team sponsors, in fact, conducted the game. To the extent a team sponsor conducts a game, it has a duty to conduct the game in a manner that does not unreasonably increase the risks that flow from the ordinary play of the game. See Hacking,
The plaintiffs’ complaint alleges that the team sponsors had a duty to conduct this game using certain equipment, specifically batting helmets and “less dangerous softballs.” While the plaintiffs allege that batting helmets should have been used when conducting this game, they do not allege that batting helmets are ordinarily worn by players in adult co-recreational slow-pitch softball games. The ASA rules the plaintiffs allege applied to this game do not require batting helmets to be worn. Further, the plaintiffs do not allege that reasonable teams use batting helmets when playing in adult co-recreational softball games. They have thus failed to make an allegation that gives rise to a duty for these team sponsors to recommend, require or provide helmets when conducting an adult co-recreational softball game. Thus, under the circumstances of this game, not recommending, requiring or providing batting helmets did not unreasonably increase or create a new risk outside of the range of ordinary activity.
The plaintiffs further allege that the softball manufactured for use when adult men play softball is less dangerous than the softball manufactured for use when children and women play softball. The plaintiffs do not allege,
Finally, the plaintiffs allege that the defendants had a duty to adhere to a strict five-male to five-female ratio. This allegation is apparently based upon the ASA rules of play for amateur softball. While the plaintiffs allege the ASA rules set forth a standard of care for recreational softball, the rules’ stated purpose is to “regulat[e] competition to insure fairness and equal opportunity to the millions of players who annually play the sport.” Further, the plaintiffs do not allege that adhering to that ratio is a measure ordinarily taken when conducting an adult co-recreational softball game. Being struck by a ball thrown by a male player is an ordinary risk inherent in co-ed softball. The ratio rule did not unreasonably increase or conceal the risk that Carol Allen would be struck by a ball thrown by a male player. See Hacking,
The plaintiffs’ writ also alleges that defendants American Legion, as owner of the softball field, and ASA, as sponsor of the league, had a duty to promulgate or enforce rules that would minimize the risk of injury. Given the risks inherent in and arising out of the sport of softball, the duty of organizations, whether involved in providing a field or sponsoring a league, is to “create only [those] risks that are normal or ordinary to the sport,” or that would be created by a “reasonable person of ordinary prudence under the circumstances.” Crawn,
Finally, the plaintiffs allege ASA and Bollinger had a duty to warn, advise, inform and instruct the league regarding the risk of injury to participants and the manner in which such risks could be minimized. As we have previously stated, the defendants may not be held liable to the plaintiffs for creating or countenancing those risks inherent in the sport of softball. Moreover, while a defendant generally has no duty to warn and instruct a plaintiff of obvious dangers about which the plaintiff’s knowledge and appreciation equal the defendant’s, a defendant may be held liable when a reasonable person would customarily instruct a plaintiff in respect to the dangers inherent in an activity. See Evans v. Foster,
In sum, the plaintiffs’ writ does not allege any facts from which one could reasonably infer that the standard of care required the defendants to recommend, require or provide helmets, use a less dangerous softball or maintain a ratio of five men and five women on each team, and therefore, the writ does not allege sufficient facts that the defendants unreasonably created a new risk outside the ordinary risks or unreasonably increased the inherent risk that Carol Allen would be injured when struck by a softball while participating in an adult co-recreational softball game. Cf. Estes v. Tripson,
Affirmed.