Preview:

Carol and Gary Allen v. Dover Co-Recreational Softball League & a.

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, Supreme Court Building, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.state.nh.us/courts/supreme.htm THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Strafford No. 2001-457 CAROL AND GARY ALLEN v. DOVER CO-RECREATIONAL SOFTBALL LEAGUE & a.

Submitted: July 26, 2002 Opinion Issued: September 30, 2002 McDowell & Osburn, P.A., of Manchester (Joseph F. McDowell, III and Mark D. Morrissette on the brief), for the plaintiffs. Backus, Meyer, Solomon, Rood & Branch, LLP, of Manchester (Erica Bodwell and Robert A. Backus on the brief), for defendants Dover Co-Recreational Softball League, Amateur Softball Association of America, Daniel's Sports Bar and Grill, Thompson Imports, and Martel-Roberge American Legion Post #47. Upton & Hatfield, LLP, of Concord for defendant Bollinger Fowler Company joins the brief submitted by the other defendants.

DUGGAN, J. 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 Dover Co-Recreational Softball League (league), which is sponsored by defendant Amateur Softball Association, Inc. (ASA). The ASA promulgates rules that govern the play of its member leagues. The teams playing in this particular game were sponsored by defendant Daniel's Sports Bar and Grill (Daniel's) and defendant Thompson Imports (Thompson). Team sponsors provided t-shirts for the players. The game was played on a field owned by defendant Martel-Roberge American Legion Post #47 (American Legion). Defendant Bollinger Fowler Company (Bollinger) provided liability insurance coverage for the league, ASA, the American Legion, the Daniel's team and the Thompson team.

file:///F|/Work/Freelancer/Boris%20Marketing/Opinions/state.nh.us/PDFs/allen119.htm[4/23/2013 6:53:33 PM]

Carol and Gary Allen v. Dover Co-Recreational Softball League & a.

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 require that softball games played on its field were played pursuant to rules and in a manner which minimized the risk of injury to participants." The plaintiffs further allege that Thompson "is vicariously liable for the negligence of its shortstop in errantly throwing the softball." Finally, the plaintiffs allege that because Bollinger provided risk management services to its insureds

Download allen119.pdf

New Hampshire Law