*1 RUTTER, minor, by parents and natural Howard Lewis Billy Lucy Billy Dean guardians, Rutter and Dean Rutter and Rutter, right Appellants Lucy in their own Rutter and DISTRICT, BEAVER COUNTY SCHOOL NORTHEASTERN Zimmerman, Greg Thomas John Warren North and George,
W. Jr. Pennsylvania. Superior Court Argued April 1979. Dec.
Filed 1980. Appeal March 1981. Petition for Allowance Granted *3 Jr., Irvin, Pittsburgh, appellants. for W. Arch Northeastern, Jr., Frisk, City, appel- Ellwood for Nick A. lee. Anderson, Beaver, for Zimmer- and Eric
Oran W. Panner man, appellee. George, for and Minett, Pittsburgh, appel- North
Thomas lees. WATKINS, SPAETH, JJ. der VOORT VAN
Before WATKINS, Judge: Court of Common an from the Order of the appeal
This is after County by plaintiff-appellant Pleas of Beaver at compulsory a non-suit granted the defendants court below plaintiff’s case. the conclusion of a 13, 1970, sustained severe plaintiff July On game on in a touch football participating right eye while premises of the Riverside High The School. was a 17 year old senior at the time and had participated in the high school football program at the Riverside High preceding School the year, having been a “starter” on both defense, offense and he played had touch football in gym class and had participated in games basketball and track. The type of touch football in which the plaintiff was engaged on the evening his injury was referred to as football,” “jungle was strongly encouraged by the football part coaches as a of the physical conditioning program for team, members of the varsity football and was conducted under the supervision of the high school football coaches. trial,
At “jungle football” was described as basically two- hand touch football. Each team had four downs in which to score began at a line of play scrimmage established by place of advancement of the ball on the previous down. The offensive team plays had set and the “play” would begin when the “snapped” ball was to the quarterback. Once the ball “snapped” was into play any number of forward, lateral, or backward passes could be made without regard to position one’s on the field. A player was “downed” and the ended either when the player carry- ing tagged the ball was with two hands by an opposing player or when a forward fell pass incomplete. game, therefore, essentially two-hand touch football with the exception being one that a ball carrier could throw more than one forward pass and could throw the ball for- ward even though he had already crossed the line of scrim- *4 mage. Plaintiff participated had in this brand of football prior on occasions. evening
On the injury of his plaintiff was in participating one of the games. aforementioned The coaches were also engaged in the as participants which they would often do when players extra were needed. At the time of the injury plaintiff’s team the had ball. As the plaintiff, a halfback, preparing defendant, to block the Gregg Zim- merman, player team, a on the opposing the ball carrier lateralled the ball to the plaintiff whereupon Zimmerman,
159 tag to reached out with his hands and plaintiff, attempting plaintiff eye. the in his As a result of accidentally struck retina plaintiff the suffered a detached in his injury the right eye. 16, 1974, initiated suit April plaintiff having previously
On against his in complaint trespass a filed by way praecipe, Zimmerman, district, the Gregg the school in 1975 and on The matter was tried October of coaches. granted compulsory 1975 court below non- October the plaintiff presented suit the defendants after the had his to motion off plaintiff’s case. to take Subsequently plaintiff took this ap- non-suit was denied and compulsory peal. is granting compulsory of a motion for non-suit at indicate that only where the facts adduced trial
proper
evidence
is
put
has failed to
forth sufficient
as
cause
McNett v.
support
Briggs,
to
his
of action.
necessary
However,
(1970).
217
The dissent would have us hold that because this particular brand of football contained a variation slight from the usual football rules that somehow this altered the game into an “unorthodox and form of football inherent in more carried risks not conventional versions game.” The record of this case fails to sustain this plaintiff’s conclusion. While several of witnesses character game ized the as one with “no rules at all” these same witnesses then went on to describe the rules as set forth whole, Taking herein. their as to the facts as a must, which agree we we cannot with the witnesses’ conclu sions to the effect that this of type game “rougher” or “dangerous” more than other versions of the same Thus, we rejecting testimony are not as to facts favorable to dissent, plaintiff, but suggested by merely reject opinions the witnesses’ as to the nature conclusions of we game accept. which are not bound we Similarly supervise cannot assume that the coaches failed to would, occasion, merely they because on in it. Plaintiff’s own witness testified that the coaches would “whistle” a “dead” and “if there was argument an or settle the something, they step argument, would or Thus, whatever”. it is clear from the testimony that al though plaintiff’s witnesses made several characterizations about the that these characterizations merely reflect subjective feelings these witnesses while the facts adduced from these same witnesses do not support their accept characterizations and while we are bound to the facts to the light most favorable we need not so opinion accept expressions especially their when are above, contradicted the facts. As discussed the only brand of touch were variations in this pass that more than one forward could be thrown on the “play” pass same and that a forward could be thrown from scrimmage”. beyond quite apparent the “line of change these variations in the rules of the do *6 in no render the way that just apparent as game. conventional than it is in its more dangerous more game any forms. certain Thus, merely because a we believe that does not necessar- be “unconventional” sport may of a brand forms of than more orthodox “dangerous” it more render ily that apparent plaintiff’s is also sport. quite same It in the rules of the the variations by was not caused injury of an eye by of an the hand striking the accidental game as sport. contact inherent risk of is an opposing player of “two- any game observers of Furthermore even casual such tend to be “wide games football know that hand touch” lateralling risky of the ball and affairs with much open” plaintiff’s injury apparent It is also plays. offensive of “tackle just easily occurred as could have when the ball carrier only is ended football” where the with two merely rather than touched is knocked off his feet engaged of football Because we find that hands. a conventional more than by plaintiff was no plaintiff’s injury we find that football and because in any type of which is inherent type was of the the risk court below acted correctly contest we hold that the non-suit on the basis granting compulsory the motion for risk of when he had assumed the pro- in the football voluntarily knowingly participated and at Riverside and in this gram below erred when it
Plaintiff also claims that the court
Cipriani,
one Frank
a former football
permit
would not
coach,
regard
safety
an
witness with
testify
expert
High
for
equipment provided by
Pennsylvania
other
Schools
The trial court had sustained de-
programs.
their football
testimony.
to the introduction of this
objections
fendant’s
an
witness is
testimony by
expert
The allowance of
trial
within the sound discretion
court.
a matter
Bowl, Inc.,
However, to expert testimony his must be confined knowledge beyond average person. that of the technical Meehan, Pa. 227 Reardon v. A.2d 667 One expert permitted as an must not be to holding himself out within conclusions on matters which are offer own because in such a case the knowledge average person of the the function of the trier of fact. “expert” usurping would be that there was no need of In the instant case it is obvious ability It within the of the expert testimony. certainly is game to understand the of touch football as average person knowl testimony. particular in the No technical described average edge beyond understanding the common by Cipriani. Mr. Whether person provided could have been might prevented plaintiff’s have protective equipment or not of fact not be of assistance to the trier injury would not in a “tack injured, engaged when plaintiff, because equipment where such is worn but was le” football protective equipment in a “touch” where is engaged within the ordinarily Certainly worn. all of this is not person say and we cannot comprehension average of the its in refusing below abused discretion court testimony. this permit
Order affirmed.
SPAETH, J., dissenting opinion. files a SPAETH, Judge, dissenting: appeal is an from an acknowledges this majority Its compulsory opin- off a non-suit. refusing
order to take ion, however, appellant’s consider evidence fails result, As a appeal. to such an appropriate standard the lower court’s error recognize does not majority testify Pennsyl- witness to as to allowing appellant’s expert These fail- high coaching vania school football standards. especially regret- I consider them to be—are to be ures—as sight eye. is the loss of in an ted in a case in which the -1- and, case, on only “A nonsuit should be entered clear nonsuit, off a appeal compulsory from the refusal take the benefit of all favorable given must be inference of fact every arising reasonable therein must be resolved in favor therefrom and all conflicts Plunkard, Cushey 413 Pa. plaintiff.” (1964) added). The fail- (emphasis majority’s A.2d from description ure to this standard is manifest its apply According was hurt. to the which majority: variations in this brand of touch only
[T]he pass were that more than one forward could be and that a forward could “play” pass thrown the same scrimmage.” be from the “line of beyond thrown *8 quite apparent change that these variations do in render just apparent way that no more than it is in its more conventional forms.
Slip op. at 1038. description ignores important testimony This favorable to indeed, the evidence in the most appellant; light it states to appellee. favorable his schoolmates testified that
Appellant and two of former by football” a was ended a two- although “jungle “touch tag—and football”—body hand in that sense it was 17-19, occurred. N.T. 58- blocking tackling regularly 59, length testified at some 77-79. One of the schoolmates than rougher game football” a why “jungle
as to he found recognized, this is N.T. 78. When touch football. the case is that statement of ignored, proper instead of light appel- in the most favorable to testimony, viewed football” involves risks well lant, “jungle that establishes with touch associated football. beyond normally those appellant was aware of unwilling I am to assume by participation football” and “jungle risks of special aware of the appellant But even if was consented to them. before, slip op. risks, played “jungle he had football” because not at all that he persuaded at I am of lower court risks. assumed the voluntarily Corp., 483 Pa. Management Three Rivers In Jones v. (1978), Supreme Court stated 394 A.2d defense a demonstra- requires the risk as a “[assumption of that, fact, danger by knew of the created tion explicitly, implicitly accepted or negligence defendant’s added.) negligence.” (Emphasis the risks created this (Second) Torts 496E states: The Restatement of § voluntary of a risk is not if (2) plaintiff’s acceptance The him no rea- tortious conduct has left the defendant’s of conduct in order to alternative course sonable which the (b) right privilege or or of protect exercise deprive him. right has no defendant Here, varsity in the appellant right has a However, the High Riverside School. football at program participation “jungle made football” high school’scoaches in the fall. N.T. playing prerequisite a virtual was there- play “jungle decision to football” Appellant’s 49. play, had he failed to he would a free decision: fore not The varsity of football. playing have eliminated his chances risk this assumption ignores majority’s discussion testimony. aspect appellant’s once ignores further the fact that majority’s decision sessions, he hardly practice was at the
165
to
willing
which exercises he was
position
pick
to
and choose
sessions,
to the
subject
At the
participate in.
to
from his
coaches,
also
pressure
direction of the
and
like
an adoles
situation was
that of
Appellant’s
classmates.
believe that the activities
may
cent at a summer
who
camp,
no
dangerous,
he
but feels he has
is to
in are
injured
is not
or
everyone
camp
choice because
in the
who
situation,
to
In such
a New
required
participate.
sick is
a
the
does not assume
York court concluded that
adolescent
holding
the
not affected
the fact
injury—a
risk of his
the
camp
adolescent could have left the
and avoided
that the
Island,
Long
Hebrew
altogether. Sauer v.
Inst. of
activity
(1962),
227
535
on other
Misc.2d
N.Y.S.2d
reversed
(1962).
grounds, 17 A.D.2d
Here,
explicit promises
the
made no
that
although
coaches
safe,
would be
the
they
the
sessions
conducted
practice
the risks
on them to minimize
players
right
rely
had a
involved,
the
of the sessions. In
purposes
consistent with
stead,
players
and the other
appellant
the coaches directed
well
either
beyond
in a
that had risks
it, a
put
football. As one court has
conventional or touch
event
assume the risks in
sporting
may
in a
participant
rules,
the
Franks v.
long
players play by
volved as
as the
here,
Smith,
(1968);
far as body
occurred of ‘tackle football.’ easily is still another manifestation of suggestion at 1038. This op. light view the case in a most majority’s failure to appellant’s The foundation of case is appellant. favorable to negligent directing were argument that the coaches “jungle protective football” without charges their of frequency as to equipment. Given football,” reasonable tackling “jungle body blocking and with a face equipped could have found that a helmet jury and was an prevented appellant’s injury mask would have with a acting that coaches protective equipment item of should have charges’ safety consideration of their proper hel- suggestion that even with a provided. majority’s The fails to “easily” give met the could have occurred in section expressed of law of the rule benefit (Second): of Torts the Restatement 442 of or in- creates of the actor conduct negligent Where is a substantial harm and the risk of a creases is harm, the harm the fact causing factor force intervention of another through the about brought . . . liability, relieve the actor does not -2- of the lower discussion majority’s premise *11 that testimony is expert admitting in discretion court’s called to witness, Cipriani, was Frank expert appellant’s Thus, majority the football. of touch describe the of expert was no need that there . . it is obvious says: “. average ability within of the certainly the testimony. as described of touch football understand the person to a misconception 1039. This is Slip op. at testimony.” the in “jungle that mistaken belief majority’s from the that results touch football. than is no different football” the of touch to describe was not Cipriani called coaches of the testify to that the He was called football. conducting team were not football High Riverside School the in with conformity sessions practice summer high Pennsylvania at other maintained safety standards practice the testify called to He was also schools. promulgated by of the rules were in violation sessions League. By Athletic Interscholastic Pennsylvania Western improperly court testimony, the lower allowing this alleged to attempt prove in his appellant restricted of the coaches. negligence 321, Corp., 457 Pa. v. Baldwin-Lima-Hamilton
In Kuisis
Court noted
(1974),
Supreme
319 A.2d
is a
an expert
of qualification
standard
witness]
[of
“[t]he
pretension
reasonable
‘If a witness “has
liberal one:
investigation he
subject
under
knowledge on
specialize
for
to his evidence is
weight
given
to be
testify, and the
may
” McCullough
. . .
v. Holland
the jury:
omitted].
[citations
45, 49,
(1928).’ Moodie v.
Co.,
COUNTY OF Jr., Ralph Tyler, Trustees of the Thomas F. PATTON and Co.; Railway Property Erie Lackawanna John J. Romich. Weidner and Robert Superior Pennsylvania. Court of June 1979.
Submitted Filed Dec. 1980.