The trial court determined there could be no liability in this suit brought by a spectator at an athletic event. Plaintiff was injured when hit by a thrown ball. We affirm.
Plaintiff Margaret Arnold 1 was a spectator at a softball game in Cedar Rapids. Her husband, Travis Arnold, was a team member, participating in the game. Defendant City of Cedar Rapids owns the softball facility. The softball league is operated by defendant Cedar Rapids Amateur Softball Association, Inc.
The facility is a conventional one for playing softball. There is a screen behind home plate and bleachers behind the screen. The bleachers where plaintiff sat had been removed from behind the screen by other spectators. Had she chosen to sit there, space was available to plaintiff in the fully protected stands behind home plate. She chose however to sit in the open bleachers along the first base line, protected only by a three-foot fence. While sitting there she was injured when hit in the face by a misthrown ball.
After plaintiff brought this action for her injuries both defendants moved for summary judgment. The trial court determined *333 that both defendants had discharged any duties owed to the plaintiff and sustained the motions.
I. In summary judgment matters the trial court’s findings are not findings of fact, but are decisions on questions of law.
Brubaker v. Barlow,
II. In stating the controlling question the parties label it as one involving assumption of risk. Such a characterization has become increasingly inappropriate and misleading. In
Rosenau v. City of Estherville,
It increasingly became apparent that primary assumption of the risk was an inaccurate term. As we explained in
Nichols v. Westfield Industries, Ltd.,
Primary assumption of the risk is not an affirmative defense. It is “an alternative expression for the proposition that defendant was not negligent, i.e., either owed no duty or did not breach the duty owed.” It is based on the concept that a plaintiff may not complain of risks that inhere in a situation despite proper discharge of duty by the defendant. Primary assumption of risk is merely a label for denying that a duty existed or that a duty was breached.
Id. at 399 (citations omitted).
Assumption of risk is not a complete defense under the comparative fault Act. Iowa Code section 668.1 (1989) provides that fault includes “unreasonable assumption of risk not constituting an enforceable express consent.”
Our
post-Rosenau
references to primary assumption of risk, even under the comparative fault Act, remain viable.
See Chapman v. Craig,
III. The principle seems well established that the owner or operator of a ballpark fully discharges any obligation to protect spectators from thrown or hit balls by providing seating in a fully protected area. Where a spectator rejects the protected seating and opts for seating that is not, or is less, protected the owner or operator is not liable.
See
Annotation,
Liability to Spectator at Baseball Game Who is Hit by Ball or Injured as Result of Other Hazards of Game,
Cases in jurisdictions which have adopted comparative fault have come to the same conclusions. In
Neinstein v. Los Angeles Dodgers, Inc.,
The defendants here screened the most dangerous parts of the spectator stands, behind home plate. There was sufficient seating there for this plaintiff. De *334 fendants owed her nothing further. Summary judgment was properly granted.
AFFIRMED.
Notes
. Her husband, Travis Arnold, jointly filed a loss of consortium claim. For simplicity we refer to Margaret as if she were the sole plaintiff.