Hoke v. Cullinan

above, I For the reasons stated would Appeals.

affirm

STEPHENS, C.J., joins this dissent. HOKE, Appellant,

William CULLINAN, Appellee.

R. Keith

No. 95-SC-042-DG.

Supreme Kentucky. Court of

Nov. 1995.

Rehearing Denied Feb. opposing In the course of a teams. point, appellant, completion

and after baseline, under- standing at or his own near server, appellee’s to return took a ball the ball playing partner. Appellant struck direction of the server with his racket standing near appellee, it struck who net, eye. only facts about his left appel- disputed are at all which whether give warning yelled “ball” in an effort to lant appel- appeared the ball strike when lee, angry appellant was over and whether re- having misplayed previous point and aggressively. From be- turned the ball too aforesaid, tennis ball struck with the personal appellee claims to have sustained injuries. in the

Appellee brought this civil action seeking compensato- Circuit Court Jefferson “neg- ry damages. alleged appellant He carelessly and drove a tennis ball ligently eye left plaintiffs into face and his parts body.” Appellee also other of his and “that the time de- claimed at and scribed, and play stopped had protected was in and loca- state appellant denied the tion.” In answer of the and the material averments taking commenced the of one anoth- parties depositions depositions. After the er’s Travis, Herbert, W. Ricketts & Valerie certain parties had been taken after Louisville, Appellant. for propounded interrogatories had been written A, deGolian, Henry Triplett, R. Robert answered, appellant to dismiss moved Bennett, Vittitow, Bowman, Triplett & Louis- 12.02, for complaint, pursuant to CR ville, Appellee. for upon relief to a claim which failure state granted. ac- In his memorandum LAMBERT, Justice. dismiss, appellant to companying motion injuries occurring in argued that for The issue decided the Court of required course of a contest granted of which this discretion- opposed simple negligence as alleging enhanced ary review is whether a failed that a which ordinary negligence is sufficient to state equivalent failed allege recklessness or received claim relief trial, a claim which relief could to state By virtue of the sporting contest. granted. dismissal of the case and the Court court’s reversal, Appeals’ we must also decide response Appellee argued otherwise. precluded

whether dismiss, he the motion to contended judgment, and the trial court whether inci- injury-producing the moment of the prematurely. rules play progress and that dent requiring proof law recklessness transpired parties between the What sports injuries were arising Appellant appel- claims out essentially undisputed. match, that under inapplicable. Appellee contended engaged in a doubles tennis lee were required accident, prevailing circumstances he was playing and at the time of the plead prove only simple negligence. out indication that was denied reply, appellant contended that the return opportunity present an all evidence he of tennis balls from one side to the other was present. desired to The motion to dismiss regular part game, legal and that the Appellee filed June re- respect imposition standard with of civil sponded by July memorandum filed on liability suspended was not points. granted appellant 1993. The court leave to reply file by memorandum order entered While brought the motion which the mat- 2, August 1993. Notice of submission for styled ter before the court was as a motion to 3, adjudication given August pursuant 12.02, dismiss to CR in their memo- 1993, 13, 1993, September not until randa, parties extensively argued opinion the trial court’s memorandum deposition testimony. The court’s order tak- order entered. Neither before nor after ing the matter under submission character- present did seek to addi- it ized as a motion for by tional evidence affidavit or otherwise. opinion the trial court’s memorandum simply suggestion There is order, no that the trial there is a full discussion of the undis- prematurely respect court acted with to its puted facts and a discussion of the law relat- decision. injuries to civil occurring sports clearly contests. what is the sine Similarly, recognize we that the trial qua non of the case perspective, from its may erroneously court stated its trial court said: ruling fact, was on a motion to dismiss. begin, To this Court does not believe characterization, despite that the fact the ball actually was not “in judgment pursu rendered a play” when Mr. Cullman was is a ant to Contrary CR 12.03 and CR 56. significant factor in determining liability. ,Inc. some, view of our decision in v. Steelvest Both Mr. Cullman and agree Mr. Hoke Ctr., Scansteel Ky., Service 807 S.W.2d 476 game that the was not over at the time of (1991), preclude summary does not judgment. the incident. any There does not exist litigants given Provided are an opportunity was, fact, doubt that Mr. Hoke re- present evidence which reveals the exis turning the ball to the server of oppos- disputed facts, tence of material upon ing team at the time of the incident. Con- the trial court’s determination that there sequently, this Court will hold that facts, disputed no such summary judgment is and, incident took diming appropriate. thus, will determine the standard of care in relation thereto. Despite the substance of the trial court’s Thereafter, the court simple negli- held that order, memorandum the Court of gence was an upon insufficient basis which to Appeals highly took a restricted view the predicate a claim type of this and that the issues which were it. before The Court of required proof law of reckless or intentional Appeals expressly ques- refused to reach the Concluding, conduct. the trial court said: summary judgment tion of and limited its [Tjhis court must find in favor of the de- opinion to a determination of whether fendant as the has not shown upon stated a claim which relief indicate that the defendant granted. The issue identified and acted either a reckless or intentional Appeals decided the Court of was as way causing plaintiffs injuries. question follows: “The here is whether a Judgment alleges negligence general dismissing entered the com- plaint terms is prejudice. encompass with sufficient to reckless con- duct. We believe that it is.” The Court of continuing Prior journey our Appeals by saying: concluded through procedure and substance of this case, and to summarize, avoid confusion which To conduct that evidences arise, necessary otherwise it is to comment disregard safety reckless for the of other upon point the case at of final persons gross negligence. First, trial court. the record is with- per- averment of sufficient 338 personal arising

mit not nec- out of athletic con recklessness. It was essary allege Leading reflecting Hoke view are: Cullman tests. cases this Inc., recklessly grossly negligent Bengals, v. 601 Hackbart Cincinnati (10th Jewett, Cir.1979); Knight manner in to resist a 12.03 mo- F.2d 516 v. order CR 296, 2, Cal.Rptr.2d tion to for failure to 834 P.2d 696 dismiss Cal.4th Barnhill, (1992); Ill.App.3d upon Nabozny state a claim which relief can be Clark, 212, (1975); granted. 334 N.E.2d 258 Gauvin v. 450, (1989); 404 Mass. N.E.2d 94 Ross v. While the view of the Court of Clouser, (Mo.1982); Dotzler v. S.W.2d respect pleading requirement Tuttle, Neb. N.W.2d enough, clear we are unsure as to what Bouschelle, P.2d Kabella 100 N.M. anticipated Inas- would occur remand. McNeill, (Ct.App.1983); Thompson 53 290 already much as the trial court had stated 102, N.E.2d Mar Ohio St.3d 705 undisputed the that demonstrated Kalish, 95, chetti v. 53 Ohio St.3d 559 N.E.2d judg- appellant’s summary to entitlement (1990). cases, many foregoing of the ment, pleadings the content of the was virtu- (Second) § the Torts Restatement of ally irrelevant. what What relevant and adopted to has been as the standard of Appeals of declined the Court to address applied damage sounding to claims in tort disregard or ele- whether reckless some such players sports activity. See between minimally vated standard of is § Negligence A view 57A Am.Jur.2d required prevail for a to in cases pro expressed often is that such a standard such as this. The view of of allowing public policy by motes sound re appears to have been that whatever extraordinary in without dress circumstances legal employed, standard trial court the litigation na permitting fear alter the of prematurely rendering game. recognized ture of the Courts have judgment. that, contest, nor in the heat of an athletic outset, regard At the we as of it energetic may acciden mal conduct include moment failed to little Jewett, Knight tally careless behavior. clearly distinguish dis between motions to Cal.Rptr.2d 2, P.2d 696 Cal.4th for failure a miss to state claim and motions (1992),expressed concept the as follows: summary judgment. Manifestly, CR for eopar- conclusion a reaching the contemplates relationship 12.03 a tieipant’s duty care limited of should be procedural contemplates these vehicles fashion, that, explained have this the cases pleadings that a motion for on the sporting in the heat active event like of an may summary judg for be treated as one football, participant’s or normal baseball disposed ment and of that manner. energetic often acciden- conduct includes language While memorandum have tally The courts careless behavior. opinion and order sounds a CR 12.02 vigorous participation in concluded that ruling, clearly substance otherwise. likely events would be such hereinabove, ap As stated trial court legal liability imposed chilled if were to be undisputed it be plied the facts what participant or her on a on the basis of his being to be lieved the law the result have conduct. The cases careless appellant was determined to be entitled that, sport, recognized in such a even when of participant’s conduct a rule violates may subject disregard safety for of the violator Reckless sport generally prescribed by the prevailing is the minimum internal sanctions others itself, imposition legal liability for such liability of civil imposition (Second) pro- § facts which would lead reason know of 1. The Restatement Torts realize, only that his vides: reasonable man to physi- conduct creates an unreasonable risk disregard actor's is in conduct reckless another, harm to but also that such risk safety cal if act or of another he does an substantially greater than is neces- intentionally that which to do an act which it is his fails do, having sary negligent. duty knowing to make conduct to the or other fundamentally conduct in relation We well alter standard of care thereto.” sport deterring partici- agree. nature of the pants vigorously engaging activity from legal Upon our determination that to, permissible that falls close (Second) standard set forth Restatement of, prescribed side act. properly § applied by Torts 500 was (“this trial court can find no indication 317, 11 Cal.Rptr.2d Id. 3 Cal.4th at acting recklessly that Mr. either Hoke was law, generally P.2d at 710. In decisional intentionally volleyed when he the ball back conceded to be to hold an unwise athletic Cullinan”), opposing and hit Mr. team participant co-participant contest to a liable this concluded and ordinarily careless conduct. Not until a However, merely inas- reinstated. participant’s conduct a level reaches of reck much as the filed herein been lessness should civil attach. While placed stage, appropri- at center we deem it this Court has not heretofore addressed this ate to allegation comment whether an issue, the reasoning adopted views else simple negligence as this case is broad compelling

where cited hereinabove are enough to include recklessness. appropriate jurisdiction.2 for this Despite informality with which his brief more or less nowadays treated, pleadings despite and acknowledges that certain risks are inherent pleadings may the freedom with which in participation athletic and that a standard amended, 15.01, purpose CR the central of recovery of recklessness for of damages is notice of de broadly applied. contends, however, remains claims and He that Stamper, Ky., fenses. Lee v. a S.W.2d apply during such rule does not the time O’Neil, Morgan Ky., see also v. points game in a tennis and would (1983). qualitative S.W.2d 83 In view of the limit the that rule to time in which a negligence actually differences between and reckless point being contested. We be ness, lieve, consisting court, the of a with former failure any such ordinary exercise care and the latter consist formulation is too restrictive. indifference, ing of conscious we doubt that sports In most preparatory some acts are an allegation simple negligence gives no of softball, required. In baseball and it is nec- tice charged. that recklessness is Kir See essary for the catcher to return an unstruck Elec., schner Ky., v. Louisville Gas & pitcher prior ball the to continuation of the (1988) (quoting approval the S.W.2d 840 with basketball, game. In goal a after is scored willful, discussion of wanton or reckless con called, aor violation the offensive team must Keeton, al., duct Page found W. et Prosser prior take the ball out resump- of bounds § and Keeton on the Law Torts at 212- of play. of volleyball, tion play after of a (5th 1984)). ed. point completed, must the ball be returned the prior ap server on the offensive team From there the record does not play of point. foregoing pear any oversight the next In the appellee’s to have been examples, interruption play integral liberally is an of which should be construed part Likewise, of ongoing justice. the contest. the the CR interest of substantial bar, appellant’s Long case return of the finally 8.06. before this case was dis missed, anticipated ball the server an and a motion was made to dismiss for part game. routine of appellee sought the this case failure to no the state a claim complaint. trial court held Appellee pled “that the incident took amendment of his and, during exactly the will thus determine the what he intended. He asserted Smith, view, Ky., Meyer golf 2. The case of 428 S.W.2d the club. In other with our (1968), possibly contest, has been as cited establish- certainly this was not a negligence a standard of for recov- type merely under here. It in- discussion ery sports injury any We believe cases. such youngsters playing together volved two and case, characterization is In that erroneous. two golf golf merely club and ball were incidental thirteen, boys, playing one ten and one play. to their together yard grievously in the and front one by the recovery agree opinion I rendered moment right of at the the ball “if the is viewed as simple negligence. Appeals, Court of order him based on He struck pre- necessary granting judgment, one it was appropri- or did not believe was com- any discovery mature as was not plead heightened or inasmuch ate to recklessness Steelvest, plete Inc. It has when entered. See negligence. now been Ctr., Ky., 807 S.W.2d Scansteel Service appellee’s view the law determined (1991).” erroneous, of this has but the result case wholly error omis- been unaffected Stevenson, Country Lexington Club v. pleadings. in the sion (1965), Ky., sued S.W.2d reasons, opinion foregoing For the golfer Country for the loss Club is reversed and eye being a result of struck of her judgment of Circuit the Jefferson Court eye by submitted golf ball. The case was is reinstated. negligence jury question on the against golfer negligence STEPHENS, unreasonably C.J., LAMBERT, Country having an Club REYNOLDS, dangerous layout. This affirmed the STUMBO and JJ., WINTERSHEIMER, golfer against the concur. verdict in favor of the golf course. Justice, LEVIN, Special JAMES files alleges negligence should J., complaint that FUQUA, dissenting in which setting necessary sports be all joins. foreseeability assumption of the since Justice, LEVIN, Special JAMES risk involved in the issues are dissenting. in the question should be determined light of each fact situa- the circumstances of I Respectfully, dissent. tion. The sole issue in this case whether alleging negligence complaint is suf- summary judgment This not a case. to state a claim for received ficient its review to The court should restricted 8.01 during sporting sufficiency complaint. contest. CR states: determine determining lend This case does not itself (1) forth a claim for which sets applied in of care that should be claim, relief, original whether an counter- injury arising in a the event of an cross-claim, claim, claim, third-party event. (a) plain shall contain a short state- showing pleader that the ment claim I of the Court would affirm the (b) a demand for is entitled relief Appeals only far as it holds that so to which deems the relief he permit averment sufficient [Emphasis added.] himself entitled. and would remand of recklessness proceed- alleged case to trial court further that Hoke The Cullinan ings. carelessly drove “negligently and face,” injuring Af- him. [Cullinan’s]

ball into depositions taken discovery of Hoke ter J., FUQUA, joins. Cullinan, for a Hoke moved pursuant to CR 12.03. trial court dismissed “plaintiff has not shown that the

basis defendant acted to indicate that the way intentional a reckless or

in either injuries.” The

causing plaintiffs trial testimony of the deposition

considered the motion to dismiss

parties, so a motion

treated

Case Details

Case Name: Hoke v. Cullinan

Court Name: Kentucky Supreme Court

Date Published: Nov 22, 1995

Citation: 914 S.W.2d 335

Docket Number: 95-SC-042-DG

Court Abbreviation: Ky.