REDDELL v. JOHNSON

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Docket Number

No. 87,276

Attorney(S)

William W. Busby, GARRISON, BROWN, CARLSON, BUCHANAN BUSBY, Bartlesville, Oklahoma, for Appellant. Richard G. Harris, HARRIS, WHITEBREAD CONE, Bartlesville, Oklahoma, for Appellee.

Judges

Summers, V.C.J.

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Smart Summary

Factual and Procedural Background

Patrick Reddell and Derek Johnson, both eighteen years old, voluntarily participated in a BB gun war governed by rules prohibiting aiming above the waist, limiting gun pumping to three times, and shooting only when the target was in the open. During the game, Johnson shot Reddell in the eye, causing serious vision damage. Reddell filed a negligence action alleging Johnson negligently aimed above the waist and later amended his petition to allege recklessness and gross negligence. Johnson denied negligence and asserted assumption of risk and contributory negligence as affirmative defenses. The trial court granted summary judgment for Johnson based on assumption of risk. The Oklahoma Court of Civil Appeals affirmed but on a different basis, holding the claim was an assault and battery barred by the statute of limitations, a defense not raised by the parties. The Supreme Court of Oklahoma granted certiorari to review this sua sponte ruling by the Court of Civil Appeals, vacated that opinion, and affirmed the trial court’s judgment.

Legal Issues Presented

Whether an appellate court may raise sua sponte an affirmative defense not pleaded or briefed by the parties in a non-public law controversy.
Whether the plaintiff assumed the risks inherent in voluntarily participating in a BB gun war, thereby barring liability for injuries sustained.
Whether summary judgment was appropriate under the doctrine of assumption of risk despite constitutional provisions generally reserving such defenses to jury determination.

Arguments of the Parties

Appellant's Arguments

The Court of Civil Appeals erred in raising an affirmative defense (statute of limitations for assault and battery) sua sponte, which was not pleaded or briefed by the parties.
Under the Oklahoma Constitution, issues of contributory negligence and assumption of risk are questions of fact reserved for the jury, thus summary judgment was improper.

Appellee's Arguments

Summary judgment was proper under the doctrine of assumption of risk because the plaintiff voluntarily engaged in an activity with obvious inherent risks.
The defense of assumption of risk and contributory negligence can, under limited circumstances, be resolved by summary judgment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Benham v. Keller, 673 P.2d 152 (Okla. 1983)	Appellate courts may affirm trial court judgments on any proper basis presented by the proof or pleadings.	Court rejected the Court of Civil Appeals’ use of an unpleaded affirmative defense as a basis for affirmance.
Mothershed v. Mothershed, 701 P.2d 405 (Okla. 1985)	Appellate courts are confined to issues raised by the parties and presented in pleadings and briefs.	Supported the principle that the appellate court should not raise issues sua sponte.
Northrip v. Montgomery Ward Co., 529 P.2d 489 (Okla. 1974)	Issues not presented to the trial court will not be considered on appeal.	Reinforced limitation on appellate court's sua sponte raising of defenses.
Steiger v. City Nat'l Bank of Tulsa, 424 P.2d 69 (Okla. 1967)	Matters not first presented to trial court are not reviewed on appeal.	Supported the procedural posture requirement for appellate review.
Edwards v. Pierce, 376 P.2d 269 (Okla. 1962)	Same as above: appellate courts limited to issues presented below.	Reiterated limits on appellate court's scope of review.
Diem v. Diem, 372 P.2d 19 (Okla. 1962)	Judgment may stand if supported by any theory presented by proof or pleadings.	Distinguished from the present case because the defense was not presented by parties.
Kamen v. Kemper Financial Services, Inc., 500 U.S. 90 (1991)	Court not limited to one theory when a claim or defense is before it, but cannot raise new claims or defenses.	Clarified limits on appellate courts acting as advocates by raising defenses sua sponte.
Doubleday Co., Inc v. Curtis, 763 F.2d 495 (2nd Cir. 1985)	Court cannot raise defenses like waiver sua sponte if not raised by parties.	Supported the prohibition against appellate courts raising unpleaded affirmative defenses.
First Federal Savings Ln v. Nath, 839 P.2d 1336 (Okla. 1992)	Appellate courts may raise new issues sua sponte only in limited circumstances such as public-law controversies.	Distinguished the present private-law case from public-law exceptions.
Furr v. Thomas, 817 P.2d 1268 (Okla. 1991)	Affirmative defenses must be pleaded or are waived.	Reinforced that statute of limitations defense must be pleaded.
Harper-Turner Oil Co. v. Bridge, 311 P.2d 947 (Okla. 1957)	Same as above: requirement to plead affirmative defenses.	Supported procedural requirements for affirmative defenses.
Red Eagle v. Free, 130 P.2d 308 (Okla. 1942)	Statute of limitations is an affirmative defense that must be pleaded.	Supported the Court’s holding that the statute of limitations could not be raised sua sponte.
Byford v. Town of Asher, 874 P.2d 45 (Okla. 1994)	Generally, assumption of risk and contributory negligence are jury questions; exceptions are narrowly construed.	Applied to affirm summary judgment under assumption of risk where no primary negligence was shown.
Flanders v. Crane Co., 693 P.2d 602 (Okla. 1985)	Exception to jury determination when no primary negligence or no material fact dispute exists.	Supported granting summary judgment due to lack of primary negligence.
Anderson v. Northwest Elec. Co-op., 760 P.2d 188 (Okla. 1988)	Recognized exceptions to jury determination of assumption of risk.	Reaffirmed exceptions allowing summary judgment.
Thomas v. Holliday, 764 P.2d 165 (Okla. 1988)	Doctrine of assumption of risk based on presumed consent by voluntary participation in inherently risky activity.	Established that no duty is owed where plaintiff voluntarily assumes known risks.
Kraszewski v. Baptist Med. Center, 916 P.2d 241 (Okla. 1996)	Elements of negligence: duty, breach, and injury.	Used to explain the requirement of primary negligence.
Ogden v. Rabinowitz, 134 A.2d 416 (R.I. 1957)	Voluntary participants assume risks ordinarily associated with the game or sport.	Supported assumption of risk in voluntary sporting activities.
Lang v. Amateur Softball Assn of America, 520 P.2d 659 (Okla. 1974)	Risk of injury from natural risks in sports assumed by participants or spectators.	Analogized to the present case involving BB gun game risks.
Pfister v. Shusta, 657 N.E.2d 1013 (Ill. 1995)	Participants barred from recovery under contact sports exception to negligence.	Analogous to BB gun game participant assuming risk.
Knight v. Jewett, 834 P.2d 696 (Cal. 1992)	Players assume risks of the game even if conduct violates game rules; legal liability would chill vigorous participation.	Applied to hold no liability despite rule violation; cited to support no duty owed here.
Maddox v. City of New York, 496 N.Y.S.2d 726 (N.Y. Ct. App. 1985)	Player assumed risk by continuing to play despite known hazardous conditions.	Analogous to voluntary assumption of risk in BB gun game.
Kuetner v. Green, 406 So.2d 1160 (Fla. D.Ct. 1981)	Participant assumes risks inherent in sparring activities.	Supported assumption of risk doctrine in voluntary physical activity.
Provence v. Doolin, 414 N.E.2d 786 (Ill. Ct. App. 1980)	Participant assumes risks inherent in racing activities.	Analogous to assumption of risk in voluntary BB gun game.
Kennedy v. Providence Hockey Club, Inc., 376 A.2d 329 (R.I. 1977)	Spectators assume risks of flying objects in sports.	Supported concept of inherent risk assumption.
Tavernier v. Maes, 51 Cal.Rptr. 575 (1966)	Player injured during game assumes risks inherent in play.	Analogous to BB gun game participant assuming risk.
Foster v. Carter, 742 P.2d 1257 (Wash. Ct. App. 1987)	Participants in BB gun war assumed inherent risks despite rules limiting aiming.	Directly analogous precedent supporting assumption of risk in BB gun game.
McLane v. Stillmaker, 143 N.E.2d 610 (Ohio Ct. App. 1957)	Assumption of risk applies where plaintiff voluntarily incurs obvious risk.	Supported summary judgment for defendant in BB gun injury case.
Bookout v. Victor Comptometer Corp., 576 P.2d 197 (Col. Ct. App. 1978)	Dangers of BB guns are obvious and need not be specifically described by manufacturer.	Supported that participants knew the risks involved.

Court's Reasoning and Analysis

The Court first addressed the procedural impropriety of the Court of Civil Appeals raising sua sponte the affirmative defense of statute of limitations for assault and battery, which was neither pleaded nor briefed by the parties. Citing multiple precedents, the Court emphasized that appellate courts are confined to issues presented by the parties and that affirmative defenses must be raised or they are waived. Only in limited public-law controversies may courts raise new issues sua sponte, which did not apply here.

Turning to the substantive merits, the Court analyzed whether the assumption of risk doctrine barred plaintiff’s negligence claim. The Court acknowledged the Oklahoma Constitution’s Article 23, Section 6, which generally reserves contributory negligence and assumption of risk questions to the jury, but recognized two narrow exceptions: (1) when the plaintiff fails to show primary negligence by the defendant, and (2) when no material facts are in dispute and reasonable minds could not differ.

Applying these exceptions, the Court found no evidence of primary negligence by defendant Johnson. Both parties voluntarily participated in the BB gun war with knowledge of the inherent risks, demonstrated by their rules limiting aiming above the waist and their failure to wear protective eyewear. The Court relied on analogous case law from Oklahoma and other jurisdictions holding that voluntary participants in inherently risky activities assume the risks, thereby negating the defendant's duty and barring liability.

The Court rejected plaintiff’s bare allegations of gross negligence and recklessness as unsupported by the summary judgment record, finding no factual dispute to preclude summary judgment. The Court concluded that the assumption of risk doctrine applied, and that the trial court properly granted summary judgment to defendant.

Holding and Implications

The Court vacated the opinion of the Court of Civil Appeals and affirmed the judgment of the District Court of Osage County granting summary judgment to defendant Johnson.

The Court held that an appellate court may not raise sua sponte an affirmative defense not pleaded or briefed by the parties in a private law dispute. It further held that plaintiff Reddell assumed the risks inherent in voluntarily participating in a BB gun war, negating defendant's duty and barring liability. The decision directly affects the parties by upholding the dismissal of plaintiff’s negligence claim but does not establish new legal precedent beyond reaffirming existing doctrines regarding assumption of risk and appellate procedure.

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PATRICK RYAN REDDELL, Appellant v. DEREK JOHNSON, Appellee.

Summers, V.C.J.

¶ 1 Does a voluntary combatant in a "BB gun war" have an action against the player who shot him in the eye, given that the "rules" of the game prohibited aiming above the waist? We say no, and affirm the trial court's dismissal.

¶ 2 Patrick Reddell and Derek Johnson, both eighteen years old, agreed to participate in a BB gun war. The rules were that no shots should be aimed above the waist, that guns be pumped no more than three times to limit the force of the BBs, and shots be taken only when the person aimed at was in the open. In the course of the game Johnson shot Reddell in the eye, causing damage which resulted in seriously reduced vision.

¶ 3 Reddell brought a negligence action, alleging that Johnson negligently fired the BB gun pointed above the waist. In a later amended petition Plaintiff alleged that this amounted to recklessness and gross negligence. Johnson answered, denying primary negligence and asserting as affirmative defenses assumption of the risk and contributory negligence. Defendant filed a motion for summary judgment, and Plaintiff responded by filing his own motion for summary judgment. Included with the motions were copies of depositions of both parties. The trial court granted summary judgment to Defendant, concluding that the defense of assumption of risk barred liability.

He alleged several other affirmative defenses which need not be discussed in light of our holding, one of which was "volenti no fit injuria". For the purposes of this opinion, we do not address this defense separately from that of assumption of the risk. For a discussion of the "volenti" doctrine see Thomas v. Holliday, 764 P.2d 165, 169, note 12 (Okla. 1988).

¶ 4 The Court of Appeals affirmed, but on a completely different theory. It reasoned that this case was not one involving negligence, but rather for the intentional tort of assault and battery. Because the statute of limitations for assault and battery is only one year, the court sua sponte held that plaintiff's action was not timely filed, and that summary judgment for the defendant was warranted. We have granted certiorari, vacate the opinion of the Court of Appeals, and affirm the judgment of the trial court.

¶ 5 Plaintiff urges that the Court of Appeals erred by raising as an issue an affirmative defense not pleaded by the parties. The Court of Appeals justified its action on the general appellate principle that a trial court will be affirmed, even though its result was reached through erroneous reasoning, if there is any proper basis upon which it may be so affirmed. Benham v. Keller, 673 P.2d 152, 154 (Okla. 1983).

¶ 6 An appellate court is generally confined to the issues raised by the parties and presented by the proof, pleadings, petition in error and briefs. Mothershed v. Mothershed, 701 P.2d 405, 411 (Okla. 1985); Northrip v. Montgomery Ward Co., 529 P.2d 489 (Okla. 1974); Steiger v. City Nat'l Bank of Tulsa, 424 P.2d 69, 72 (Okla. 1967) (matters not first presented to the trial court for resolution will not be considered by the Supreme Court); Edwards v. Pierce, 376 P.2d 269, 272-73 (Okla. 1962); Diem v. Diem, 372 P.2d 19, 23 (Okla. 1962) (if a judgment may be upheld on any theory presented by the proof or pleadings, it may stand). It is the duty of the parties to frame the issues.

¶ 7 In Kamen v. Kemper Financial Services, Inc., 500 U.S. 90 (1991), the Supreme Court explained that when a particular claim or defense is before the Court, the Court is not limited to a particular theory. However, courts are not free to play the role of advocate, and raise claims or defenses that should be left to the parties to raise. Doubleday Co., Inc v. Curtis, 763 F.2d 495, 502 (2nd Cir. 1985), cert. denied, 474 U.S. 912 (1985) (court cannot raise the defense of waiver when it was not raised by the party who could have done so.) Only under limited conditions, such as in a public-law controversy, may an appellate court raise a new issue sua sponte. First Federal Savings Ln v. Nath, 839 P.2d 1336, 1343 n. 35 (Okla. 1992).

¶ 8 This rule goes hand in hand with the principle that affirmative defenses must be raised by the parties or are waived. Furr v. Thomas, 817 P.2d 1268, 1272-73 (Okla. 1991); Harper-Turner Oil Co. v. Bridge, 311 P.2d 947, 949 (Okla. 1957). The statute of limitations is an affirmative defense which must be pleaded. Red Eagle v. Free, 130 P.2d 308, 311 (Okla. 1942); 12 O.S. 1991 § 2008[ 12-2008](C)(18).

¶ 9 In the present case Reddell's petition alleges negligence and gross negligence. Nowhere in the pleadings, motions or attachments to the motions is there any indication that the parties sought to litigate the intentional tort of assault and battery. The answer, while pleading several affirmative defenses, does not raise the statute of limitations.

¶ 10 If the plaintiff had pled a cause of action for assault and battery, and the defendant had raised the affirmative defense of the statute of limitations, among others, but the trial court decided the case on, say, the defense of assumption of risk, then the Court of Appeals would have been free to affirm the trial court by using the properly raised defense of limitations. However, that was not the posture of this case. It is not the place of an appellate court in a case such as this to in effect plead and prove for a party an affirmative defense that the party, intentionally or otherwise, did not plead nor prove. Curtis, supra; Furr, supra.

¶ 11 We now turn to the question of whether the trial court correctly granted summary judgment to the defendant. Plaintiff asserts that under our Oklahoma Constitution, contributory negligence and assumption of risk are always questions for the jury. Defendant claims that under limited circumstances, such as those here, summary judgment may properly be granted under the doctrine of assumption of risk.

¶ 12 The Oklahoma Constitution provides in Article 23, Section 6, that "[t]he defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be questions of fact, and shall, at all times, be left to the jury." Following the plain meaning of these words, this Court has generally required the issue of assumption of risk to be submitted to a jury. See, e.g., Byford v. Town of Asher, 874 P.2d 45 (Okla. 1994); Flanders v. Crane Co., 693 P.2d 602 (Okla. 1985); Foster v. Harding, 426 P.2d 355 (Okla. 1967); Joy v. Pope, 53 P.2d 683 (Okla. 1936).

¶ 13 Two exceptions to Article 23, Section 6's mandate have been recognized. In Flanders v. Crane, 693 P.2d at 606, we held that the defense of assumption of the risk need not be presented to the jury if (1) the plaintiff fails to present evidence showing primary negligence on the part of the defendant, or (2) if there are no material facts in dispute, and reasonable minds exercising fair and impartial judgment could not reach differing conclusions. These two exceptions were again recognized in Anderson v. Northwest Elec. Co-op., 760 P.2d 188 (Okla 1988) and Byford v. Town of Asher, 874 P.2d 45 (Okla. 1994). In Byford we cautioned "[t]he exceptions to Article 23, Section 6's constitutional assurance of a jury's determination of the defense of assumption of the risk must be narrowly read, lest they swallow the rule." Id. at 50.

¶ 14 Considering first the "lack of primary negligence" exception, we noted in Byford that this is really not an exception, but is the fundamental premise underlying all negligence suits: without primary negligence the defendant is not liable. Id. at 48. Thomas v. Holliday, 764 P.2d 168 (Okla. 1988) spoke to this exception, explaining that under certain circumstances the defendant owes no duty to the plaintiff. No duty is owed in situations in which "plaintiff has made no express agreement to release the defendant from future liability but is presumed to have consented to such a release because he has voluntarily participated in a particular activity or situation which involves inherent risks." Id. at 168 n. 8. The touchstone of the defense of assumption of the risk is consent. Id. at 169.

The elements of negligence are duty owed by the defendant, breach of that duty, and resulting injury to the plaintiff. Kraszewski v. Baptist Med. Center, 916 P.2d 241 (Okla. 1996).

¶ 15 This "presumed consent" involves situations such as the voluntary participation in a sport or game. Id., citing Ogden v. Rabinowitz, 134 A.2d 416 (R.I. 1957) (voluntary participant assumes risks ordinarily associated with the game or sport).

". . . [T]he defendant would not be negligent because he owes no duty to the plaintiff. A classic example of this type of risk assumption is afforded by a fan injured while attending a sports event. The fan is deemed to have consented that the game may be played without taking any precautions to protect him from stray balls, and the law takes notice of the existence of a special `relational' duty between the fan and the owner." Thomas v. Holliday, 764 P.2d at 1988.

¶ 16 The risk of being struck by a batted or thrown ball is one of the "natural risks" assumed by spectators attending a baseball game. Lang v. Amateur Softball Assn of America, 520 P.2d 659 (Okla. 1974) Other such cases reported include Pfister v. Shusta, 657 N.E.2d 1013 (Ill. 1995) (student injured in informal game of "can kicking" was barred from recovering from another participant under the "contact sports" exception to negligence); Knight v. Jewett, 834 P.2d 696 (Cal.Sup.Ct. 1992) (player in a touch football game assumed the risks associated with playing the game with exuberant participants); Maddox v. City of New York, 496 N.Y.S.2d 726 (N.Y.Ct. App. 1985) (baseball player injured while playing on muddy field assumed risk by continuing to play after he knew of the field's condition); Kuetner v. Green, 406 So.2d 1160 (Fla. D.Ct. 1981) (party injured while sparring in a karate session assumed the risks of a "leg sweep"); Provence v. Doolin, 414 N.E.2d 786 (Ill. Ct. App. 1980) (pit crew member was injured during a race when he was struck by a race car); Kennedy v. Providence Hockey Club, Inc., 376 A.2d 329 (R.I. 1977) (spectator at a hockey game assumed the risk of a flying hockey puck); Tavernier v. Maes, 51 Cal.Rptr. 575 (1966) (softball player injured when a runner slid and knocked him down).

¶ 17 We believe that the present case falls within this so-called exception. The Washington appellate court held similarly in Foster v. Carter, 742 P.2d 1257 (Wash. Ct. App. 1987). There, a group of boys agreed to have a BB gun war. They agreed to aim only below the waist to avoid injury to their eyes. Plaintiff, predictably, was shot in the eye with a BB. At the time he was hit only the upper portion of his body was visible, as he was peeking around a tree. The court held that as a matter of law the plaintiff assumed the risks inherent in playing in a BB gun war, and that the defendant was entitled to judgment.

¶ 18 Similarly, in McLane v. Stillmaker, 143 N.E.2d 610 (Ohio Ct. App. 1957), adults were shooting at flies on a brick wall with a BB gun. A BB ricocheted off the wall and hit the plaintiff in the eye. The court held "[i]t seems to us that this is a classic case for the application of the principle of assumption of risk. . . ." Id. at 613. The court continued by stating that one cannot deliberately incur an obvious risk of personal injury and then hold another responsible for the ensuing injury. Id. The court held that the trial court should have granted the defendant's motion for judgment notwithstanding the verdict.

¶ 19 Reddell and Johnson were going to spend the night together. The game was to be the next day. On the night before the game Reddell's mother expressed concern. In her deposition she said:

"And I told them not to, and I said `Somebody will get their eye put out!' [Here there was some discussion about goggles.] And then they left, and the last thing I said before they closed the door `Please, don't do it.' "

The dangers of this game were and are readily apparent. See Bookout v. Victor Comptometer Corp., 576 P.2d 197 (Col. Ct. App. 1978) (dangers of a BB gun are readily apparent and need not be described by the manufacturer). That the participants knew of the danger is evident by their "below the waist" rule, yet they declined to wear protective eyewear. Johnson stated that he did not aim at Reddell's head, but only in his general direction. Both were familiar with BB guns, and their participation was voluntary. Each assumed the risks inherent in the game, one of which came to pass.

¶ 20 This case does not stray from our position that the exceptions to Article 23, Section 6 must be construed narrowly. However, under Thomas v. Holliday and the other authority cited, this case falls within the "exception" number one, in reality a failure to show primary negligence. Defendant owed no duty to plaintiff, as both voluntarily entered into the game and knew of the inherent risks. As the court stated in Knight v. Jewett, 864 P.2d 718, the case involving injury in the touch football game,

The courts have concluded that vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct. The cases have recognized that, in such a sport even when a participant's conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule. (emphasis added)

¶ 21 Plaintiff's voluntary participation in the BB gun fight puts him in the same status as the infielder injured by the sliding baserunner and the pit crew member struck by the race car. He is deemed to have consented to the risks inherent in the sport. The other player is thus under no legal duty to him, and the legal concept of liability for negligence is missing one of its necessary ingredients.

See Note 2, supra.

¶ 22 Plaintiff's amended petition alleged gross negligence and recklessness. Some states have held that gross negligence or reckless conduct totally outside the range of normal activity in the sport cannot be absolved through the defense of assumption of the risk. Knight v. Jewett, 834 P.2d at 718. We find no support for these allegations or that theory in the record presented on summary judgment. Such bare assertions without support in the evidentiary material do not prevent summary judgment here.

¶ 23 The opinion of the Court of Civil Appeals is vacated. The judgment of the District Court of Osage County is affirmed.

¶ 24 SUMMERS, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, WILSON, WATT, JJ. — Concur

¶ 25 KAUGER, C.J. — Concurs in Result

¶ 26 OPALA, J. — Concurs in Judgment