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Ludman v. Davenport Assumption High School

Supreme Court of Iowa

June 2, 2017

SPENCER JAMES LUDMAN, Appellee/Cross-Appellant,
v.
DAVENPORT ASSUMPTION HIGH SCHOOL, Appellant/Cross-Appellee.

         Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.

         A defendant appeals an adverse verdict finding it negligent in maintaining its premises. REVERSED AND CASE REMANDED.

          Thomas M. Boes of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellant/cross-appellee.

          Steven J. Crowley and Edward Prill of Crowley, Bünger & Prill, Burlington, for appellee/cross-appellant.

          Brian J. Humke and Ryan G. Koopmans (until withdrawal) of Nyemaster Goode, P.C., Des Moines, for amicus curiae Iowa High School Athletic Association.

          Joel E. Fenton of Law Offices of Joel E. Fenton, PLLC, Des Moines, Elaine F. Gray of Fehseke & Gray Law Offices, Fort Madison, and Eashaan Vajpeyi of Ball, Kirk & Holm, P.C., Waterloo, for amicus curiae Iowa Association for Justice.

          WIGGINS, Justice.

         A high school baseball player brought a premises liability action against a high school for his injuries after a foul ball struck him while he was standing in an unprotected part of the visitor's dugout at the high school's baseball field. The high school appeals from the judgment entered on a jury verdict finding the high school's negligence was responsible for injuries sustained by the high school baseball player. On appeal, we conclude the high school owed a duty of care to the player and substantial evidence supports the jury verdict. However, we find the district court abused its discretion in not allowing the high school to present evidence of custom. We further find the district court erred when it failed to instruct the jury on the player's failure to maintain a proper lookout. Accordingly, we reverse the judgment of the district court and remand the case to the district court for a new trial.

         I. Background Facts and Proceedings.

         In May 2011, Spencer Ludman graduated from Muscatine High School. During that summer, he was a member of the school's baseball team. On July 7, Ludman traveled with his team to play a baseball game against Davenport Assumption High School at the baseball field on their school grounds.

         The visiting team's dugout was located on the first-base side of the field, thirty feet from the first-base foul line. The visitor's dugout was thirty-five feet and five inches long, seven feet wide, and two steps below the playing field. There was a fence in front of the majority of the visitor's dugout, twenty-five and a half feet in length, extending from the ground to the ceiling of the dugout. At each end of the visitor's dugout, there was a five-foot-wide opening in the fence to allow players access between the field and the dugout. There was a bench in the visitor's dugout positioned behind the fence, and it had two levels on which the players could sit.

         At the top of the fifth inning, Muscatine was batting and Ludman was in the visitor's dugout with his teammates and coaches. There were two outs, and the current batter had two strikes. Ludman was due to bat after the current batter and the batter on deck. As it became unlikely he would bat that inning, Ludman grabbed his glove and hat in preparation to retake the field. After retrieving his glove and hat, he turned to watch the game and found room to stand in the south opening of the dugout, farthest from home plate.

         Ludman watched the pitcher throw the ball to the batter. He heard the bat hit the ball and was looking to see where the ball went. He saw the ball in his peripheral vision before the line-drive foul ball entered the south opening of the dugout and struck him in the head. Assumption's coach saw Ludman react and try to defend himself from the ball. However, witnesses described the time from the moment the ball hit the bat until it hit Ludman as a split second.

         The line-drive foul ball fractured Ludman's skull. An ambulance took him to Genesis Medical Center in Davenport, and thereafter, a helicopter transported him to the University of Iowa Hospitals and Clinics (UIHC) for treatment. Ludman's hospitalization at the UIHC lasted for twelve days before he was able to go home. After his discharge, Ludman received speech therapy, motor skills therapy, and treatment for depression and anxiety. In March of 2012, he began having seizures, requiring anti-seizure medication. He also continued to deal with posttraumatic stress symptoms, depression, and behavioral issues.

         On April 5, 2013, Ludman filed a premises liability action against Assumption, alleging negligence,

a) In building, maintaining, and using a baseball facility for high school baseball games, which failed to conform to accepted standards of protection for players[;]
b) In failing to erect a protective fence/screen between home plate and the dugout where players were expected to emerge from the dugout in preparation for going to bat;
c) Knowing the visitor's dugout was extremely close to home plate, failing to take reasonable steps to prevent foul balls from entering the dugout at high speed and causing injury.

         Assumption denied the claims of negligence in its answer to the petition and asserted several affirmative defenses, including the contact-sports exception to negligence, assumption of the risk, the plaintiff's negligence, and comparative fault pursuant to Iowa Code chapter 668. Thereafter, Assumption filed a motion for summary judgment alleging the contact-sports exception applied; and thus, it owned no duty to Ludman because getting hit by a foul ball is inherent in the sport of baseball and he assumed the risk of getting hit by a foul ball. Ludman resisted the motion. The court denied the motion for summary judgment.

         Shortly before trial, Assumption filed a second motion for summary judgment, arguing that it was entitled to summary judgment under the inherent-risk doctrine and on the basis that there are no accepted standards for high school baseball dugouts. Ludman also resisted this motion. The district court denied Assumption's second motion for summary judgment because it was untimely and was "an attempt to rehash the same facts previously argued into a theory of law it raised in its first motion."

         Before trial, the parties filed numerous motions in limine. Ludman filed a motion in limine to exclude Assumption's proffered evidence of other high school dugouts in the same conference as Assumption as proof of due care or as a standard of safety. The court sustained Ludman's motion in limine with regard to other high school dugouts. The court decided the parties were not to refer to other dugouts during the case, but to limit themselves to precise facts before the jury concerning Assumption's facility.

         On June 22, 2015, a jury trial commenced. Ludman presented several witnesses, including testimony from Scott Burton, an expert in recreational facility safety. Burton testified that, in 2000, the American Society for Testing and Materials (ASTM) promulgated standards for the fencing of baseball and softball dugouts. Section 6.6 of the standards refers to protective fencing for below-grade dugouts and recommends "the protective fencing should cover the entire opening from ground level to top of dugout roof or overhang."

         Ludman also introduced evidence that the National Federation of High Schools (NFHS) and the Iowa High School Athletic Association regulate Iowa high school baseball. Under this system, the NFHS sets out rules, and the Iowa High School Athletic Association adopts and follows these rules. The 2011 NFHS Baseball Rules Book was applicable on July 7, 2011, and Ludman admitted it as a trial exhibit. With regard to dugout placement, the NFHS has a recommendation that states, "Recommended Distance from Foul Line to Nearest Obstruction or Dugout Should be 60'." The rules do not mention any other recommendations regarding positioning, fencing, or screening of dugouts.

         At the close of Ludman's evidence, Assumption made a motion for directed verdict, arguing Ludman did not have sufficient evidence to satisfy the duty element of his negligence claim. Assumption further argued the claim was barred because there was no duty owed to Ludman based upon the doctrine of primary assumption of the risk as set out in Dudley v. William Penn College, 219 N.W.2d 484 (Iowa 1974), and it did not breach any limited duty that was owed.

         The court denied the motion. Thereafter, Assumption presented its case, including testimony from Muscatine High School's former athletic director, Tim Goodwin; Assumption's president, Andy Craig; and an architect, Greg Gowey. Assumption also made an offer of proof with regard to the custom or design of other high school dugouts in the same conference as Assumption through the testimony of Gowey. At the close of all evidence, Assumption renewed its motion for directed verdict, and the court denied it. Ludman also moved for directed verdict on comparative fault. The district court granted Ludman's motion for directed verdict as to all comparative fault except whether Ludman could have avoided the injury by standing at a different part of the dugout.

         On June 30, 2015, the jury returned a verdict in favor of Ludman. The jury found thirty percent fault on the part of Ludman based upon his unreasonable failure to avoid injury. The court entered judgment in favor of Ludman.

         Assumption filed this appeal, and plaintiff filed a timely notice of cross-appeal with respect to the comparative-fault issue. The day before oral argument, Assumption filed a motion to strike Ludman's final brief because it contained language not in the proof brief and deleted certain language contained in his proof brief. We entered an order submitting the motion with this appeal. Before reaching the merits of the case, we will address Assumption's motion.

         II. Motion to Strike Ludman's Final Brief.

         The Iowa appellate rules provide,

In final briefs, the parties must replace references to parts of the record with citations to the page or pages of the appendix at which those parts appear. The final brief must also contain a reference to the original page and line numbers of the transcript. If references are made in the final briefs to parts of the record not reproduced in the appendix, the references must be to the pages of the parts of the record involved, e.g., Answer p. 7, Motion for Judgment p. 2, Tr. p. 231 Ll. 8-21. Intelligible abbreviations may be used. No other changes may be made in the proof briefs as initially filed, except that typographical errors may be corrected.

         Iowa R. App. P. 6.904(4)(b). The purpose for this rule is so parties can write their briefs and reply briefs based on what is contained in the opposing party's brief. If the appellant makes changes in the final brief from the proof brief, the appellee should have the chance to change their final brief. The same is true when the appellant files a reply brief to the appellee's proof brief. This back and forth would unduly extend the time of an appeal and cause confusion. Of course, a party may amend its brief pursuant to Iowa appellate rule 6.901(6).

         Comparing Ludman's proof brief with his final brief, we find the final brief contained language not in the proof brief and eliminated language from the final brief that was in the proof brief. However, due to the lateness of Assumption's motion to strike, we will not strike Ludman's brief. In the future, if we discover, either on our own or by motion of the opposing party, that a party has changed its final brief from its proof brief, we will not hesitate to strike the final brief and require that party to file another final brief in compliance with our rules.

         III. Issues.

         On appeal, Assumption argues (1) it was entitled to a directed verdict on the duty element of Ludman's negligence claim; (2) Ludman's evidence at trial was insufficient to create a jury question, regardless of the limited duty rule, and it was entitled to directed verdict in its favor; (3) the district court erred in barring it from presenting evidence concerning the custom and standard practice in the design and construction of dugouts at schools throughout the Mississippi Athletic Conference, in which both Assumption and Muscatine High School were members; and (4) the district court erred in failing to give its requested jury instruction concerning proper lookout.

         Because of our decision, we need not reach Ludman's cross-appeal.

         IV. Standard of Review.

         Our review of a district court's ruling on a motion for directed verdict is for correction of errors at law. Pavone v. Kirke, 801 N.W.2d 477, 486-87 (Iowa 2011). "A directed verdict is required 'only if there was no substantial evidence to support the elements of the plaintiff's claim.' " Id. (quoting DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (Iowa 2009)). We "view the evidence in the light most favorable to the nonmoving party and take into consideration all reasonable inferences that could be fairly made by the jury." Id. (quoting Easton v. Howard, 751 N.W.2d 1, 5 (Iowa 2008)).

         Here, Assumption claims the evidence supported a jury instruction on proper lookout. Because the failure to give the instruction does not have a discretionary function, we review the court's refusal to give a lookout instruction for correction of errors at law. Alcala v. Marriott Int'l, Inc., 880 N.W.2d 699, 707 (Iowa 2016).

         Finally, our review for failure to submit custom evidence is for an abuse of discretion. McClure v. Walgreen Co., 613 N.W.2d 225, 234 (Iowa 2000). A court abuses its discretion when its ruling is "clearly untenable or to an extent clearly unreasonable." State v. Wilson, 878 N.W.2d 203, 210-11 (Iowa 2016). An erroneous application of the law by the district court is clearly untenable. Id.

         V. Whether Assumption Was Entitled to a Directed Verdict on the Duty Element of Ludman's Negligence Claim.

         Although intermingled throughout its argument, Assumption appears to make two arguments as to why it did not owe a duty to Ludman, entitling it to a directed verdict. Assumption's first contention is that the contact-sports exception to liability discussed in Feld v. Borkowski, 790 N.W.2d 72, 77 (Iowa 2010), precludes a finding it owed a duty to Ludman. Assumption next contends the doctrine of primary assumption of the risk precludes a finding it owed a duty to Ludman because the risk of injury was open and obvious to him. In its argument, Assumption relies on our decisions in Arnold v. City of Cedar Rapids, 443 N.W.2d 332 (Iowa 1989), and Dudley, 219 N.W.2d 484.

         A. General Tort Principles Governing Assumption's Duty to Ludman. Ludman pled and tried his action as a premises liability claim. In 2009, we changed the law concerning premises liability by abandoning the common law distinctions between invitees and licensees. Koenig v. Koenig, 766 N.W.2d 635, 645 (Iowa 2009). We found the common law rules governing premises liability before Koenig to be replete with special rules and arbitrary distinctions. Id. at 644. In Koenig, we adopted a general negligence standard for possessors of land to invitees and licensees. Id. at 645-46. We adopted the following multifactor approach:

We impose upon owners and occupiers only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors. Among the factors to be considered in evaluating whether a landowner or occupier has exercised reasonable care for the protection of lawful visitors will be: (1) the foreseeability or possibility of harm; (2) the purpose for which the entrant entered the premises; (3) the time, manner, and circumstances under which the entrant entered the premises; (4) the use to which the premises are put or are expected to be put; (5) the reasonableness of the inspection, repair, or warning; (6) the opportunity and ease of repair or correction or giving of the warning; and (7) the burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection.

Id. (quoting Sheets v. Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602, 606 (Iowa 1998)).

         Since our decision in Koenig, we have not had the opportunity to explore the contours of a premises liability claim. However, after Koenig, the Restatement of Torts (Third) adopted the position we took on premises liability. Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 51, at 242 (Am. Law Inst. 2012). The Restatement (Third) of Torts: Liability for Physical and Emotional Harm formulates a landowner's duty as follows:

Subject to § 52, a land possessor owes a duty of reasonable care to entrants on the land with regard to:
(a) conduct by the land possessor that creates risks to entrants on the land;
(b) artificial conditions on the land that pose risks to entrants on the land;
(c)natural conditions on the land that pose risks to entrants on the land; and
(d)other risks to entrants on the land when any of the affirmative duties provided in Chapter 7 is applicable.

Id.

         Comment i to section 51 sets forth the duty of reasonable care incorporating the same factors we adopted in Koenig. Id. § 51 cmt. i, at 248-50. Accordingly, we adopt the duty analysis for land possessors contained in section 51 of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm. We now must determine if the contact-sports exception to liability or primary assumption of the risk or limited- duty rule due to an open and obvious condition relieves Assumption of the duty contained in section 51 of the Restatement (Third).

         B. Contact-Sports Exception. Section 51 has not modified the principles of a no-duty rule contained in the remainder of the Restatement (Third) of Torts: Liability for Physical ...


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