Shipley v. REC. & PARK COM'N FOR PARISH OF EBR

558 So. 2d 1279, 1990 WL 15815
CourtLouisiana Court of Appeal
DecidedFebruary 21, 1990
Docket88 CA 1539
StatusPublished
Cited by8 cases

This text of 558 So. 2d 1279 (Shipley v. REC. & PARK COM'N FOR PARISH OF EBR) 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
Shipley v. REC. & PARK COM'N FOR PARISH OF EBR, 558 So. 2d 1279, 1990 WL 15815 (La. Ct. App. 1990).

Opinion

558 So.2d 1279 (1990)

Cecil Darrell SHIPLEY
v.
RECREATION AND PARK COMMISSION FOR the PARISH OF EAST BATON ROUGE, et al.

No. 88 CA 1539.

Court of Appeal of Louisiana, First Circuit.

February 21, 1990.
Rehearing Denied April 25, 1990.

*1280 Byron Magbee, Baton Rouge, for plaintiff-appellant Cecil Darrell Shipley.

Cyrus J. Greco, Baton Rouge, for defendant-appellee Recreation and Park Com'n for the Parish of East Baton Rouge.

Louis Orsatti, Fountain Valley, Cal., David N. Levinson, Wilmington, Del., for defendant-appellee Bolco Athletic Co.

Before COVINGTON, C.J., and WATKINS and SHORTESS, JJ.

WATKINS, Judge.

Plaintiff filed suit against defendants, Baton Rouge Recreation and Parks Commission (BREC) and Bolco Athletic Company (Bolco), for injuries he sustained while playing softball on a field owned by BREC which used baseball bases manufactured by Bolco. The trial court dismissed all of plaintiff's claims. We affirm.

On the night of July 24, 1980, the plaintiff was playing a game of fast pitch softball on a field owned and maintained by BREC. The field was located at Forest Park on Harrell's Ferry Road. The game was conducted under the auspices of the Baton Rouge Amateur Softball Association *1281 (BRASA),[1] of which plaintiff was a member. BRASA paid BREC a nominal fee for the use of BREC softball fields during the regular softball season,[2] and also paid the umpires and scorekeepers for all league games. BREC employees maintained the fields on a daily basis during the regular season, working until 3:30 p.m. After that time the fields were turned over to the BRASA officials who were conducting the games. The officials made the final decision as to whether the field was playable or whether it needed to be reworked. BREC supplied the BRASA officials with access to equipment and fresh dirt with which to repair the field before or during a game.

On the night of July 24, 1980, two league games were played on field number three at Forest Park. During the second game, which began at approximately 9:30 p.m., the plaintiff suffered a dislocated ankle while sliding into second base. The plaintiff claims that his right foot, which was extended during the slide, got caught under the base, causing his injury. The plaintiff testified that the base was elevated and that he saw this condition when he rounded first base.

Plaintiff sued BREC alleging that it failed to properly and safely install the Bolco base, and that it failed to maintain its ball field in a safe and reasonable condition. Plaintiff also sued Bolco alleging that the Bolco base, which was installed at second base, was defective in design; that Bolco failed to adequately warn anticipated users or consumers of the base's hazards and of the consequences of improper installation, and, that the base was unreasonably dangerous per se. Subsequently Bolco filed a third party demand against BREC seeking indemnity and contribution for any damages suffered by the plaintiff as a consequence of improper selection, installation or maintenance of the base, or improper maintenance of the field. BREC also filed a third party demand against Bolco.

NEGLIGENCE OF BREC

We first address the issue of whether BREC was negligent in its maintenance of the softball field or its installation of the Bolco base. The plaintiff contends that because the trial court concluded that the base was not level with the ground when the plaintiff slid into second base we must find that BREC negligently installed the Bolco base and negligently maintained the field. It is not disputed that the field surrounding second base should be maintained level, free of holes and depressions. However, it is also undisputed that during the course of a game depressions can occur from normal use, which includes sliding. Thus a field can be ruled playable at the beginning of a game and thereafter become hazardous. The evidence establishes that at the time the first game began the field was ruled playable and that sometime thereafter a depression developed around second base. Mr. Barry Lee Browning worked for BREC in 1980 as the head of the ball field maintenance crew for Forest Park. Mr. Browning testified that on July 24, 1980, he and his crew worked all three ball fields at Forest Park. Each base was removed and the underlying dirt was scraped away, leaving the base flush with the ground. Mr. Browning also testified that there was no procedure for maintenance by BREC employees between regular season games. Mr. Steve Whitfield, an umpire for BRASA, testified that he was the home plate umpire for both games played on field number three on July 24, 1980. He recalled that prior to the first game the softball team members had to rework the field because of rain; Mr. Whitfield could not recall if the field was reworked before the second game. He further testified that the players and managers generally assisted in determining whether the field was playable. From all indications the game could have been stopped to repair a problem, such as a gap *1282 under a base; however, the testimony of the umpire, the plaintiff, the team manager, and another team player reveals that no one complained about the field prior to the plaintiff's being injured.

BREC owed a duty to maintain its softball parks in a fashion commensurate with ordinary and reasonable care under the circumstances. But, it is not the insurer of the safety of those making use of the facilities; it is not required to eliminate every source or possibility of danger. Godfrey v. Baton Rouge Recreation & Parks Commission, 213 So.2d 109 (La.App. 1st Cir.), writ refused, 252 La. 958, 215 So.2d 128 (La.1968). Although the gap between the ground and second base constituted a clear hazard, the plaintiff failed to prove that BREC's duty to maintain the field extended to the time when the plaintiff was injured. Based on the evidence presented we find no error in the trial court's finding that plaintiff failed to prove that the condition of the field the night of his injury was due to any negligence on the part of BREC in maintaining the field.

The evidence also supports the trial court's finding that BREC was not negligent in its installation of the Bolco base. Several BREC employees testified concerning the installation of the Bolco bases at their ball parks. Mr. Jesse Townsend, the maintenance foreman for BREC in 1980, testified that he installed the Bolco bases and that he gave instructions to the ball field crews not to leave gaps under the bases. According to his testimony the bases on field number three should have been flush when the first game started on July 24, 1980. Mr. Willard Landry, the BREC Junior Sports Director in 1980, testified that he checked all the fields at the beginning of the season to make sure that the bases were correctly installed, flush with the ground. The only evidence plaintiff presented concerning his contention of improper installation of the base was the fact that on the night of July 24, 1980, after at least one game had been played on the field, second base was elevated. Because base elevation can occur from normal use during a game, we find no error in the trial court's findings.

PRODUCTS LIABILITY

FACTS

Plaintiff also seeks to recover damages based on several theories of products liability. Plaintiff contends that the Bolco base is unreasonably dangerous per se, unreasonably dangerous in design and unreasonably dangerous for normal use because of Bolco's failure to adequately warn of the product's dangers. In this regard the plaintiff presented the testimony of Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
558 So. 2d 1279, 1990 WL 15815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shipley-v-rec-park-comn-for-parish-of-ebr-lactapp-1990.