Benko v. Mid-Atlantic Sports Ventures, Inc.

Thomas D. Horne

Benjamin J. Trichilo, Esq.
4117 Chain Bridge Road, Suite 400
P.O. Box 22
Fairfax, Virginia 22030-0022 Michael S. Horwatt, Esq.
8280 Greenboro Drive, Suite 601
McLean, Virginia 22102 Daniel L. Robey, Esq.
12500 Fair Lakes Circle, Suite 125
Fairfax, Virginia 22033-3804 Gentlemen:

In this personal injury case, the jury returned a verdict for the defendant. Plaintiff asserts that the Court erred in instructing the jury on the issue of contributory negligence. Additionally, he contends that counsel for the defendant improperly argued the issue of contributory negligence to the jury and that the Court erred in failing to take appropriate corrective action to cure the effect of such improper argument. Asserting prejudice, plaintiff requests that the Court set aside the jury verdict and grant him a new trial. The Court finds that it erred in instructing the jury on the issue of contributory negligence. Accordingly, it will grant the motion of the plaintiff, set aside the jury verdict, and grant to the defendant a new trial.

At the time he was injured, the plaintiff was a 16 year old high school student. An experienced baseball player, the plaintiff, Kevin Benko, was participating in an instructional session conducted by the defendant, George Priftis. The session was being held in an indoor batting tunnel. It began with the defendant pitching to the plaintiff. In order to protect the pitcher, a protective device known as an "L" screen was used.

A sketch of an "L" screen was made for the Court and jury. Additionally, an "L" screen was erected on the grounds of the courthouse. Jurors were given the opportunity to view the "L" screen in the company of the parties and their counsel.

The "L" screen consists of piping that is shaped in the form of an "L" bordering an open space that is covered with netting. The screen is of a sufficient size to protect a pitcher throwing a ball through an opening over the base of the screen. There is no protection covering the space to permit a ball to be freely thrown to the batter.

After the plaintiff had hit a number of balls pitched to him by the defendant, Mr. Priftis called a break in the session and suggested that he and the plaintiff shift positions. The plaintiff then began to pitch to the defendant. On the second pitch thrown, the plaintiff was struck in the head with a ball hit by the defendant. The ball struck the plaintiff with such force that he was knocked to the ground. The plaintiff was wearing no protective helmet at the time he was struck. Plaintiff's damage claim arises from this blow to the head.

At the time of the plaintiff's injury, his head was not fully protected by the "L" screen. Prior to being struck, the plaintiff had never pitched from behind an "L" screen nor had he received any instruction on the proper use of the screen. He did not tell Mr. Priftis that he lacked such instruction, nor asked how to use the screen.

Plaintiff asserted that the defendant, Priftis was negligent in failing to instruct him on the proper use of the "L" screen. Defendant Priftis contended that he was not negligent in failing to instruct the plaintiff on the use of the "L" screen, but that, if he was negligent, the plaintiff was guilty of contributory negligence by failing to inform the defendant that he needed instruction on the use of the "L" screen.

Experts testified with respect to standards of care required of a batting instructor under the circumstances of this case. The testimony of such experts made a jury issue of the primary negligence of the defendant.

Of peculiar importance to a resolution of the instant motion is whether the defendant was entitled to have the jury further consider the issue of the defendant's contributory negligence. Defendant contends that, under the facts of this case, the jury could properly consider the issue of whether the defendant was negligent in failing to make any inquiry concerning the use of the "L" screen prior to pitching behind such a device in a batting tunnel.

Plaintiff's expert testified that it was improper for the defendant to have placed Mr. Benko in a position of danger, when to do so was unnecessary to the instructional session. More importantly, it was a breach of the duty of care owed his student, by the defendant, for not properly instructing him on the use of the screen. According to the plaintiff's expert, the danger to which the unschooled user of the "L" screen is exposed to is not readily apparent. The safe technique described by plaintiff's expert involved a windup from an exposed area ending with a fade behind the screen. Plaintiff, despite his familiarity with baseball, cannot be charged with knowledge of using the screen in this manner.

Only if the jury were to conclude that the defendant was negligent can the defense of contributory negligence be interposed. Furthermore, any negligence on the part of the plaintiff that was not a proximate cause of plaintiff's injury and damage cannot bar plaintiff's recovery.

Defendant's expert opined that Mr. Priftis was not negligent in sending the plaintiff behind the "L" screen. In his opinion, it was appropriate not only for them to switch roles but also for the defendant to pitch from behind the screen without further instruction. He concluded that the defendant's instructor did nothing wrong, nor failed to do something he should have done or said, prior to having the plaintiff pitch to him from behind the screen. It was his opinion that the use of the "L" screen was not "too complicated". He demonstrated a technique through which the pitcher would be protected by standing behind the "L" screen with his body shielded by the netting. No training would have been required to use the device in such a fashion.

Under the facts of this case, it would be inconsistent for the jury to conclude that the "L" screen device was deceptively dangerous to the untrained eye and yet charge the plaintiff with a duty to inquire. The defendant may not assert that the plaintiff had a duty to inquire when such an inquiry would not have in fact afforded him protection from the hazards described by plaintiff's expert. The plaintiff would have pitched in the same manner as he did whether or not he had in fact asked the defendant for advice.

Defendant contends he was not negligent in failing to instruct. He cannot point to anything in the record that would have indicated he would have acted in any other way during the session. His expert confirmed the propriety of his actions.

In passing, the Court believes some additional comments on the defense of the assumption of the risk are warranted. The Court declined to grant the instruction on assumption of the risk proffered by counsel for the defendant. There is a lack of evidence that the plaintiff knew of the inherent hazards in the method of throwing from behind the screen and, armed with such knowledge, voluntarily elected to risk pitching from behind the screen in a way different from the procedure outlined by plaintiff's expert. Instead, the defendant was presented with a hazardous situation that would require him to take reasonable precautions for his own safety. One such precaution could be a request for instruction. However, he cannot be charged with knowledge of conditions which could not have been apparent to him in the exercise of ordinary care.

Professor Friend says of the difference between the defenses of contributory negligence and the assumption of the risk,

[A]lthough contributory negligence in most cases involves a failure to recognize a danger, it is also true that a person who actually recognizes a hazardous situation, but who thereafter, although not consciously electing to risk the danger, nevertheless carelessly fails to take the precautions which an ordinary prudent person would take to avoid injury from the hazardous condition, is contributorily negligent.
By contrast, a plaintiff who recognizes a hazard, and then consciously and voluntarily elects to risk the danger, is guilty of assumption of the risk even though the plaintiff uses the utmost care to avoid injury while exposed to the hazard.
Charles E. Friend, Personal Injury Law in Virginia 184 (1990).

An instructor is not an insurer of his student's safety. Contrariwise, a student may reasonably rely upon his teacher to give him instruction when necessary to the student's safety. It is unreasonable to charge the student with a duty to question the coach in all situations. Although a batting coach must conduct himself as an ordinary prudent professional concerned with the safety of his pupil, this might not preclude the jury's consideration under the circumstances shown, of whether the pupil was under a duty to ask questions in the interest of his own safety. However, this is not such a case.

Under the facts of this case, either the "L" screen was so simple to use that no further instruction on its use was required of the coach, or it was so complicated as to mandate that the directions be given prior to the plaintiff undertaking to throw the first pitch. The defense of contributory negligence presupposes negligence on the part of the plaintiff. There is no evidence in the record to suggest that a batting student, of the age and experience of the plaintiff, would have been aware of sufficient facts and circumstances to have been on notice to inform his coach that he needed instruction or was lacking in experience. Defendant's own expert noted that it was obvious what a person was to do when pitching from behind the screen.

As counsel for the plaintiff have observed, "[B]efore either party is entitled to an instruction on negligence or contributory negligence, as the case may be, there must be more than a scintilla of evidence introduced on the subject." Ring v. Poelman, 240 Va. 323, 327 (1990) (authority omitted). The device was either so simple to use that no one need ask how to use it or so complicated that only an expert could discern its hidden hazard. These issues were for the jury to determine when considering the primary negligence of the defendant.

The Court cannot conclude whether the jury returned its verdict based upon its having found an absence of negligence on the part of the defendant, or upon a finding plaintiff's negligence that contributed to his accident and damages. Id. at 328.

The Court finds that it dealt with the argument of counsel for the defendant in an appropriate manner. As the Court has found that the instruction on contributory negligence was granted in error, that issue is singularly determinative of the motion raised by the plaintiff.

Accordingly, the Court will grant the motion of the plaintiff and set aside the verdict of the jury. A new trial will be granted to the plaintiff on the issues of both liability and damages. Counsel may contact the Court for available dates for a hearing.

Mr. Trichilo may draw an Order consistent with this opinion to which Mr. Robey may note his exception.

Very truly yours,

Thomas D. Horne