Dunshee v. Comfort

441 So. 2d 75, 1983 La. App. LEXIS 9593
CourtLouisiana Court of Appeal
DecidedNovember 9, 1983
DocketNo. 83-CA-405
StatusPublished
Cited by1 cases

This text of 441 So. 2d 75 (Dunshee v. Comfort) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunshee v. Comfort, 441 So. 2d 75, 1983 La. App. LEXIS 9593 (La. Ct. App. 1983).

Opinion

BOWES, Judge.

Defendants Jerome H. Comfort, Jr. and his insurer, South Carolina Insurance Company, appeal a judgment of the district court awarding plaintiff Julie Faber Dun-shee, individually, $3,750.00 and Julie Dun-shee as natural tutrix of her minor son, Christopher Joseph Bell (a/k/a Christopher Joseph Dunshee) $41,000.00 for an injury sustained by Christopher during a “bottle rocket war” on the night of December 27, 1978.

Plaintiff answered the appeal asking that the awards be increased and that the defendants not cast in judgment be held accountable as joint tortfeasors with appellants. We reject plaintiff’s demands and reverse the judgment of the district court.

Each party to this appeal submitted numerous specifications of errors. Because of our finding, it is only necessary to consider defendant-appellant’s specification of error number two:

The jury erred in failing to find the proximate cause of the accident was the contributory negligence and/or assumption of risk on the part of Christopher Dunshee in engaging in the “bottle rocket war”, as well as the negligence of the other boys who participated therein.

On the evening of December 27, 1978, four young friends, Christopher Bell, a/k/a Christopher Dunshee (hereinafter Chris), age 13, Mark Dunshee, Chris’ brother (hereinafter Mark), age 11, Robert Comfort (hereinafter Robby), age 15, and John Williams (hereinafter John), age 15, engaged in a “bottle rocket war” in the yard at 4212 Page Drive, Metairie, Louisiana, the home of Miss Fran, a neighbor to all the participants. The trial testimony establishes that Chris, Mark, and Robby met at Miss Fran’s at between 6:30 and 7:00 p.m. The boys took sides for the “war” with Mark and Robby opposing Chris. Approximately thirty minutes later, John joined the “war” on Chris’ side. The four boys then battled back and forth, firing rockets at each other, for about the next forty-five minutes, until finally one of the bottle rockets fired by Robby struck Chris in his left eye.

It appears that all the bottle rockets used that night (testimony established that the boys had engaged in several “wars” over the preceding days) were supplied by Robby. Chris and Mark both testified that during the last battle the boys had run out of rockets on several different occasions and that each time Robby had obtained additional bottle rockets from his house.

The rockets, along with other fireworks, had been purchased on the Friday before the accident when Robby and Chris had been transported to St. Bernard Parish by Robby’s uncle, Clarence (Pete) Gosman, for the express purpose of buying the pyrotechnics. Because of his participation in obtaining the fireworks, Clarence Gosman and his insurers (South Carolina Insurance Company, his homeowners’ insurer and State Farm Mutual Insurance Company, his automobile liability insurer) were named as defendants in plaintiff’s suit, along with Jerome H. Comfort, Jr., individually and as administrator of the estate of his minor son Robby and their insurer, also South Carolina Insurance Company.

Defendants, Comfort, and South Carolina answered plaintiff’s petition pleading negligence, contributory negligence and assumption of the risk on the part of Christopher Dunshee in engaging in the “bottle rocket war” and further pleaded the contributory negligence of Julie Dunshee in failing to properly supervise the activity of her son and in allowing him to engage in said war.

Defendants also filed third-party demands against the other participants in the “bottle rocket war”, their parents, and their insurers.

Clarence Gosman then filed a third-party demand against Julie Faber Dunshee on the same basis as alleged in Comfort’s third-party demand.

Prior to the trial of this case, Williams, and his homeowners’ insurer, settled with petitioners, and the third-party demand of Comfort and South Carolina as to those parties was dismissed by Summary Judgment on June 28, 1982.

[77]*77The case proceeded to trial by jury on October 26, 27 and 28,1982. In response to jury interrogatories, the jury found specifically that, at the time of his injury, Chris Dunshee, along with Mark Dunshee, John Williams and Robby Comfort, was engaged in the “bottle rocket war”. They found that Robby Comfort and John Williams were negligent in engaging in the “bottle rocket war” but that negligence was not a proximate cause of the accident. The jury further found Clarence Gosman, Jerome Comfort, Jr. and Julie Dunshee guilty of negligence, but the negligence of Clarence Gosman and Julie Dunshee was not a proximate cause of the accident.

The jury did not find Christopher Dun-shee guilty of contributory negligence or assumption of the risk and proceeded to award $41,000.00 to Christopher Dunshee and $3,750.00 to Julie Dunshee.

Post trial motions for Judgment notwithstanding the Jury Verdict and Motion for New Trial or Additur were denied by the trial court.

Pursuant to the jury verdict, judgment was rendered by the district court on December 10, 1982 in favor of Julie Faber Dunshee individually in the amount of $3,750.00, and in favor of Julie Faber Dun-shee, as Natural Tutrix of her minor child, Christopher Joseph Bell, a/k/a Christopher Joseph Dunshee, in the amount of $41,-000.00 and against defendants Comfort individually, and South Carolina. The plaintiffs’ demands against Comfort, as administrator of the estate of his minor son, Robby Comfort, Clarence B. Gosman and his insurers, South Carolina and State Farm, and the third-party demand against Julie Dun-shee, individually, and as natural tutrix of her minor child, Mark Dunshee, were dismissed. Defendants, Jerome H. Comfort, Jr. and South Carolina were also cast in judgment for court costs and expert fees.

The special interrogatories submitted to the jury show that they found all the boys were engaged in the “bottle rocket war” at the time that Chris was injured. The jurisprudence in this area, which is well settled, is that a child who exhibits the requisite knowledge and understanding and who, as a participant, is injured in the course of a bottle rocket war is held to have assumed the risk of being injured and is therefore barred from recovery for any such injury. See Lefebvre v. Fireman’s Fund American Insurance Co., 304 So.2d 69 (La.App. 1st Cir.1974); Granger v. Robertson, 421 So.2d 977 (La.App. 3rd Cir.1982), Writ denied, 426 So.2d 178, 1983; and Meinke v. Dominguez, 377 So.2d 868, 869 (La.App. 4th Cir.1979).

The facts of both the Lefebvre and Gran-ger cases (supra) closely parallel the case before this court and in each of those cases the courts involved denied recovery to the injured plaintiffs, stating that Lefebvre and Granger respectively had assumed the risks attendant to the shooting of bottle rockets by engaging in the rocket battle.

In Lefebvre (supra), the 1st Circuit, in affirming the judgment of the district court dismissing plaintiff’s demand, commented:

Herein Leslie Lefebvre freely and voluntarily joined the party for the express purpose of shooting rockets at the other group. The danger of a rocket striking a member of the group was ever present. Further, Leslie must have anticipated and contemplated the action of A.C. Fer-achi, a member of the opposing group, of throwing rockets toward his group. Also Leslie was aware of the erratic behavior of a thrown rocket.

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Dunshee v. Comfort
445 So. 2d 453 (Supreme Court of Louisiana, 1984)

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441 So. 2d 75, 1983 La. App. LEXIS 9593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunshee-v-comfort-lactapp-1983.