Clark v. University of Oregon ( 2022 )

712
Argued and submitted July 20, 2020, reversed and remanded May 25, 2022
Crisshawn CLARK,
Plaintiff-Appellant,
v.
UNIVERSITY OF OREGON,
Dana Altman, Josh Jamieson,
Kevin McKenna, Mike Meggenga,
and Tony Stubblefield,
Defendants-Respondents.
Lane County Circuit Court
17CV45539; A170086
512 P3d 457
Plaintiff suffered a knee injury while a University of Oregon basketball
coach put him through a basketball drill during a visit to the university’s basket-
ball program. He brought a claim for negligence against the university and five
employees of its basketball program. The trial court granted summary judgment
for defendants, reasoning that, as a matter of law, plaintiff’s injury resulted solely
from normal risks of playing basketball and that defendants could not be liable
for an injury caused by such risks. The trial court also denied plaintiff’s motion
to amend the complaint and denied plaintiff’s motion for summary judgment on
defendants’ affirmative defense of “comparative fault/contributory negligence.”
On appeal, plaintiff contends that the trial court erred in all of those respects.
Held: It is squarely within the province of the jury to assess the reasonableness of
defendants’ conduct and the foreseeability of the risk of harm to plaintiff. Thus,
the trial court erred in granting summary judgment for defendants. The court
abused its discretion in denying the motion for leave to amend the complaint. The
court erred in denying plaintiff’s motion for summary judgment on the defense of
“comparative fault/contributory negligence.”
Reversed and remanded.
R. Curtis Conover, Judge.
Brent Barton argued the cause for appellant. Also on the
briefs was Travis Eiva.
Cody M. Weston argued the cause for respondents. Also
on the brief were Stephen F. English, Matthew J. Mertens,
and Perkins Coie LLP.
Before Tookey, Presiding Judge, and Egan, Judge, and
Aoyagi, Judge.*
______________
* Egan, J., vice Armstrong, S. J.
Cite as 319 Or App 712 (2022) 713
EGAN, J.
Reversed and remanded.
714 Clark v. University of Oregon
EGAN, J.
Plaintiff suffered a knee injury while a University
of Oregon basketball coach put him through a basketball
drill during a visit to the university’s basketball program.
He brought a claim for negligence against the university
and five employees of its basketball program. The trial court
granted summary judgment for defendants, reasoning that,
as a matter of law, plaintiff’s injury resulted solely from nor-
mal risks of playing basketball and that defendants could
not be liable for an injury caused by such risks. The trial
court also denied plaintiff’s motion to amend the complaint
and denied plaintiff’s motion for summary judgment on
defendants’ affirmative defense of “comparative fault/con-
tributory negligence.” On appeal, plaintiff contends that the
trial court erred in all of those respects. As explained below,
we agree and, accordingly, reverse and remand.
On review of the grant of a motion for summary
judgment, we view the record in the light most favorable to
the nonmoving party, here, plaintiff. Jennewein v. MCIMetro
Access Transmission Services, 308 Or App 396, 400, 481 P3d
939 (2021). The facts are undisputed for purposes of defen-
dants’ motion for summary judgment and this appeal. While
plaintiff was enrolled in a junior college and was on that
college’s basketball team, the University of Oregon’s bas-
ketball coaches invited him to make an official visit to the
university to see the school facilities and meet the coaches
and the team. At dinner on the first night of plaintiff’s visit,
defendant Mennenga, an assistant coach, asked plaintiff if
he had ever had any surgeries. Plaintiff responded that he
had both of his knees “scoped” after the previous basketball
season. After dinner, Mennenga drove plaintiff back to his
hotel and, during the drive, told plaintiff that Mennenga and
plaintiff would do a basketball workout the next morning.
The next morning, Mennenga picked plaintiff up
from his hotel and drove him to defendant’s basketball
arena. There, plaintiff spoke to defendant Altman, the head
coach, and mentioned that Mennenga intended to have him
do a workout. Altman did not object or interfere. After pro-
viding plaintiff with workout gear, Mennenga had plain-
tiff do several basketball drills on the court. Defendants
Cite as 319 Or App 712 (2022) 715
Stubblefield, an assistant coach, and Jamieson, the Director
of Basketball Operations for the university, watched plain-
tiff play. For the third drill, Mennenga instructed plaintiff
to drive the ball toward the basket, collide with Mennenga,
continue driving through the opposition, and lay the ball in
the basket. On the fourth repetition of that drill, Mennenga
bumped plaintiff’s chest as he drove to the basket, setting
plaintiff off-balance and causing plaintiff to feel a snap in
his knee. His anterior cruciate ligament was torn.
While plaintiff was on the ground after the injury,
he saw Stubblefield and Jamieson immediately stand up
from their seats and leave the gym. After the workout,
Mennenga told plaintiff that he, Mennenga, had made a
mistake. Defendants admitted that Mennenga’s workout
with plaintiff was impermissible under National Collegiate
Athletic Association (NCAA) rules, and the university
intended to sanction Mennenga for that conduct.
In the complaint that was operative when defen-
dants moved for summary judgment, plaintiff alleged that
defendants were negligent in the following ways:
“a. Failing to take reasonable steps to avoid injuring
Plaintiff;
“b. Endangering Plaintiff needlessly;
“c. Hitting/fouling Plaintiff during a basketball drill
in a way that was not reasonable under the circumstances;
“d. Organizing a basketball workout at a time that
was not reasonable under the circumstances;
“e. Failing to perform a medical evaluation or other-
wise medically clear Plaintiff before he worked out;
“f. Behaving in a manner that was unreasonable
based upon the circumstances;
“g. Violating NCAA Bylaw 13.11 et seq, which Defen-
dants knew or should have known about, in at least two
ways:
“i. Allowing and/or requiring Plaintiff to workout/
tryout/display his athletic abilities on his official visit
while he had remaining eligibility to play basketball at
[the junior college]; and
716 Clark v. University of Oregon
“ii. Allowing Plaintiff to workout/tryout/display
his athletic abilities on his official visit before obtaining
the required medical clearance.
“h. U of O violated NCAA Constitution Articles 2 and 6
and NCAA Bylaw 19.2 et seq.
“i. Head Coach Altman violated NCAA Bylaw 11.1.1.1.”
Defendants moved for summary judgment, contend-
ing that physical contact like the contact between Mennenga
and plaintiff during the basketball drill “is a normal, inevi-
table and inherent risk of playing basketball, and as a mat-
ter of law, injury resulting from such contact is not action-
able.” Plaintiff responded that defendants’ argument was
incorrect under Oregon law for two reasons: first, because
it implicitly rested on the doctrine of implied assumption of
the risk, a doctrine that the legislature abolished in 1975,
and second, because, under the framework established in
Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 4, 734
P2d 1326 (1987), the question of a defendant’s “duty” to a
plaintiff is properly subsumed in the question whether the
defendant’s conduct unreasonably created a foreseeable risk
of harm to a protected interest of the plaintiff, and that
question is committed to the jury except in “extreme case[s].”
Donaca v. Curry County, 303 Or 30, 38, 734 P2d 1339 (1987);
see also id. (“[B]roadly phrased arguments over ‘duty’ in
common-law negligence tend to turn into a disputed rule of
law what properly is a determination of the ordinary issues
of negligence liability: whether defendant’s conduct caused
a foreseeable kind of harm to an interest protected against
that kind of negligent invasion, and whether the conduct
creating the risk of that kind of harm was unreasonable
under the circumstances.”).
The trial court agreed with defendants, granted
their motion for summary judgment, and entered a judg-
ment of dismissal. Plaintiff appeals, contending, in his first
assignment of error, that the trial court erred in granting
defendants’ motion for summary judgment.
We review a trial court’s grant of summary judg-
ment to determine whether there are any issues of material
fact and whether the moving party is entitled to judgment
as a matter of law. ORCP 47 C; Jennewein, 308 Or App at
Cite as 319 Or App 712 (2022) 717
400. Here, we consider whether the facts, viewed in the light
most favorable to plaintiff, establish that defendants are
entitled to judgment as a matter of law.
A few years before the Supreme Court announced
a new approach to negligence liability in Fazzolari, it
addressed the role of the inherent risks of a sports activity in
negligence in Blair v. Mt. Hood Meadows Development Corp.,
291 Or 293, 630 P2d 827, modified on recons, 291 Or 703,
634 P2d 241 (1981). The plaintiff in Blair had been injured
after he accidentally skied off of a run at the defendant’s ski
resort, and he alleged that the defendant had been negligent
in several ways relating to its maintenance and marking of
the ski run. Id. at 295. The defendant requested, and the
trial court gave, a jury instruction stating, “ ‘Sports activ-
ities involve some risks. Every person who takes part in a
sport accepts and submits himself to the dangers that are
inherent or a reasonable part of that sport.’ ” Id. at 296. The
jury returned a verdict for the defendant. Id.
The plaintiff appealed, and we held that the instruc-
tion was partially correct; we distinguished the type of
assumption of the risk addressed by the instruction from
the “ ‘implied assumption of the risk’ abolished by [former]
ORS 18.475(2) [(1979), renumbered as ORS 31.620 (2003)].”1
Id. However, we concluded that the instruction was too
broad because “it failed to inform the jury that a sports par-
ticipant assumes only those risks which are ‘necessary to
the sport and are known to him.’ ” Id.
The plaintiff sought review in the Supreme Court.
The court considered “whether any instruction concerning
risks assumed by virtue of participation in sports activities
is proper” in light of the legislative abolition of the doctrine
of implied assumption of the risk. Id. at 296-97. It explained
its previous holdings regarding the effect of former ORS
18.475(2) (1979), noting that it had held that the statute
prohibited a defendant from relying on a plaintiff’s implicit
assumption of the risk of an activity regardless of where in
the negligence analysis the defendant sought to apply it—as
1
That statute provides, “The doctrine of implied assumption of the risk is
abolished.” ORS 31.620(2). After Blair was decided, the legislature enacted pro-
visions specific to assumption of the risk while skiing, ORS 30.970 to 30.990.
718 Clark v. University of Oregon
contributory negligence or as “a counterpart to no duty.”
Id. at 297.
Further, the court noted that, in Thompson v.
Weaver, 277 Or 299, 305, 560 P2d 620 (1977), it had rejected
the defendant’s attempt to characterize an assumption-of-
the-risk principle as an absence of duty. The defendant in
Thompson contended that he owed no duty to the plain-
tiff because the plaintiff had “voluntarily [gotten] under a
mobile home which had been improperly raised by jacks.”
Blair, 291 Or at 297. The Blair court explained,
“An absence of duty on the part of the defendant, like the
bar formerly raised by the doctrine of assumption of risk,
would have completely defeated plaintiff’s recovery for neg-
ligence. We held that since the enactment of [former] ORS
18.475(2) [(1979)] this type of conduct of the plaintiff may
reduce liability, if at all, under [comparative fault] only and
is no longer a complete defense to a negligence action even
when recharacterized as an ‘absence’ of or limitation upon
duty.”
291 Or at 297-98 (emphasis added).
Then the court noted that, in previous cases, it had
expressly left undecided the specific question presented in
Blair: the effect of former ORS 18.475(2) (1979) in “situations
where a ‘plaintiff has agreed to join in an activity (such as
a sporting event) in which the particular hazard is a known
element of the activity even when properly conducted[.]’ ”
Id. at 298 (quoting Thompson, 277 Or at 305). After con-
sidering the text of the statute and its legislative history,
the court concluded that that context was similar to the
other contexts that it had already addressed: “[T]he legisla-
ture intended to abolish all use of the concept of plaintiff’s
assumption of risk in negligence cases (other than in its
‘express’ sense) whether as a a defense to defendant’s prior
‘tortious’ conduct or as a shorthand phrase for defendant’s
lack of duty under the circumstances or breach of duty.”
Id. at 300 (internal footnote omitted).
Consequently, the court explained, “the focus of the
analysis in [a case where a plaintiff voluntarily participates
in an activity in which the hazard is a known element of
the activity] has shifted entirely to the defendant’s duty
Cite as 319 Or App 712 (2022) 719
under the circumstances and should no longer be discussed
in terms of the plaintiff’s assumption of the risk.” Blair, 291
Or at 301. Because the challenged instruction focused on
the plaintiff’s conduct rather than the defendant’s duty, the
trial court erred in giving it. Id. at 303.2
To summarize, in Blair, the court held that a plain-
tiff’s voluntary engagement in an activity in which the
hazard is a known element of the activity “is no longer a
complete defense to a negligence action even when rechar-
acterized as an absence of or limitation upon duty.” 291 Or
at 297-98 (internal quotation marks omitted). However, the
court reasoned, although a plaintiff’s voluntary engagement
in such an activity does not categorically exclude the pos-
sibility that a defendant owes the plaintiff a duty, a court
or jury is not prohibited from considering the risks inher-
ent in an activity as part of the duty or breach elements of
a negligence claim: “[T]he fact that a sports participant’s
injury results from a risk which is an element of a sport even
when properly conducted may continue to defeat recovery
for negligence because the defendant’s duty in the context of
the sport may not extend to protecting against such risks.”
Id. at 302.
As we understand defendants’ argument, they con-
tend that Blair left open the possibility that, as a matter
of law, a defendant’s duty in the context of an injury that
occurs during a sport activity never extends to protecting
against a risk that is an element of the sport. Defendants
contend that we should adopt such a rule in this case. As
explained below, we decline to do so.
In Fazzolari, the court replaced its previous concep-
tion of the elements of a negligence claim with a framework
focused on foreseeability:
“In short, unless the parties invoke a status, a relationship,
or a particular standard of conduct that creates, defines,
or limits the defendant’s duty, the issue of liability for
harm actually resulting from defendant’s conduct properly
depends on whether that conduct unreasonably created a
2
Despite that conclusion, the court declined to reverse and remand for a new
trial because it concluded that the plaintiff had not excepted to the instruction on
that precise ground. Id. at 303-04.
720 Clark v. University of Oregon
foreseeable risk to a protected interest of the kind of harm
that befell the plaintiff.”
303 Or at 17. More recently, the court explained that that
framework brings together
“two overlapping common-law negligence determinations:
(1) whether the defendant’s conduct unreasonably created
a foreseeable risk of harm to a protected interest of the
plaintiff such that the defendant may be held liable for that
conduct—formerly described in terms of ‘duty’ and ‘breach’
as measures of negligent conduct; and (2) whether, because
the risk of harm was reasonably foreseeable, the defendant
may be held liable to the plaintiff for the particular harm
that befell the plaintiff—a concept that traditionally was
referred to as ‘proximate’ cause and which, in our current
analytical framework, operates as a legal limit on the scope
of a defendant’s liability for negligent conduct.”
Piazza v. Kellim, 360 Or 58, 70, 377 P3d 492 (2016).
The question of whether a defendant’s conduct
“unreasonably created a foreseeable risk to a protected
interest of the kind of harm that befell the plaintiff,”
Fazzolari, 303 Or at 17, is a normative one; that is, determi-
nation of that question is laden with social values. Piazza,
360 Or at 70 n 6. For that reason, that question is commit-
ted to the jury in all situations except those “at the outer
margins.” Fazzolari, 303 Or at 12. In other words, “ ‘[t]he
community’s judgment, usually given voice by a jury, deter-
mines whether the defendant’s conduct met that threshold
in the factual circumstances of any particular case.’ ‘The
court intervenes only when it can say that the actor’s con-
duct clearly meets the standard or clearly falls below it.’ ”
Piazza, 360 Or at 73-74 (internal citation omitted; quoting
Chapman v. Mayfield, 358 Or 196, 206, 361 P3d 566 (2015),
and Fazzolari, 303 Or at 18).
When a defendant’s conduct cannot reasonably be
viewed as anything beyond ordinary participation in a
sports activity, perhaps the case is one at the outer margins,
in which it may be appropriate for the court to intervene
at the summary judgment stage. That is, where the defen-
dant’s conduct, viewed in the light most favorable to the
plaintiff, falls completely within the ordinary parameters
Cite as 319 Or App 712 (2022) 721
of the sports activity, it may be that the defendant’s conduct
is not unreasonable under the specific circumstances, as a
matter of law. However, contrary to defendants’ argument
in this case, no special rule of law is necessary to achieve
that outcome; the outcome is determined by application of
Fazzolari’s analytical framework.
In any event, this case presents a scenario differ-
ent from ordinary participation in a sports activity. Here,
viewing the facts in the light most favorable to plaintiff,
defendants invited plaintiff to visit the university, informed
him that he would be engaging in basketball workouts
with coaches, devised a series of drills for him to complete,
instructed him on how to perform the drills, physically par-
ticipated in the drills, and, in the course of the drills, per-
formed the act that injured plaintiff. Defendants did those
acts despite their knowledge of plaintiff’s previous knee sur-
gery and despite the fact that most of the acts, including the
act of allowing or requiring plaintiff to participate in any
workout with coaches at all, violated NCAA rules. The con-
duct by defendants that plaintiff alleges unreasonably cre-
ated a foreseeable risk of harm to him goes beyond ordinary
participation in a sports activity. It is squarely within the
province of the jury to assess the reasonableness of defen-
dants’ conduct and the foreseeability of the risk of harm to
plaintiff. Thus, the trial court erred in granting summary
judgment for defendants.
Next we consider plaintiff’s second assignment of
error, in which he contends that the court erred in denying,
in part, plaintiff’s motion for leave to file an amended com-
plaint alleging an additional claim against the university
and defendant Altman, the head coach, for negligent super-
vision. The newly alleged negligent supervision resulted in
the same injury to plaintiff—his torn ACL—through the
same specific cause—Mennenga’s bump of plaintiff during
a basketball drill—as the original negligence claim. As
explained below, we conclude that the court abused its dis-
cretion in denying plaintiff’s motion to amend the complaint.
As we understand it, the trial court agreed with
defendants that the negligent supervision claim that plain-
tiff sought to add was (1) beyond the scope of his tort claim
722 Clark v. University of Oregon
notice and (2) filed outside the statute of limitations because
it did not relate back to the original complaint. Although
our overall review of the trial court’s decision is for abuse
of discretion, Eklof v. Persson, 369 Or 531, 537, 508 P3d 468
(2022), we review legal questions underlying that ultimate
discretionary choice for legal error, see id. at 543-54 (evalu-
ating the legal questions underlying the court’s discretion-
ary choice for legal error); Cowan v. Nordyke, 232 Or App
384, 386, 222 P3d 1093 (2009), rev den, 348 Or 114 (2010)
(“[W]hen the denial [of a motion to amend] results from a
substantive legal conclusion, we review the correctness of
that conclusion for errors of law.” (Internal quotation marks
omitted.)).
ORCP 23 A provides that, after a first amendment
allowed as a matter of right within a certain period of time,
“a party may amend the pleading only by leave of court or
by written consent of the adverse party; and leave shall be
freely given when justice so requires.” The parties address
the four factors that we articulated in Ramsey v. Thompson,
162 Or App 139, 986 P2d 54 (1999), rev den, 329 Or 589(2000), as constraining a court’s discretion in considering a
motion for leave to amend. See id. at 145 (courts should con-
sider “(1) the nature of the proposed amendments and their
relationship to the existing pleadings; (2) the prejudice, if
any, to the opposing party; (3) the timing of the proposed
amendments and related docketing concerns; and (4) the col-
orable merit of the proposed amendments”).
After argument in this case, the Supreme Court
decided Eklof, 369 Or 531, in which it held that the Ramsey
factors do not properly direct a court’s exercise of its discre-
tion. The court explained that “the gravamen of the inquiry
under ORCP 23 A is prejudice to the opposing party,” and the
merit of the proposed amendments “is relevant only insofar
as ORCP 23 A permits leave to be denied for futile amend-
ments.” Eklof, 369 Or at 533. The court further explained
that “a futile claim is one that could not prevail on the mer-
its due to some failing in the pleadings or some unavoidable
bar or obstacle.”3 Id. at 543-44.
3
In Eklof, the court went on to address what materials are proper for a
court to consider in evaluating the futility of a proposed amendment and how to
Cite as 319 Or App 712 (2022) 723
Given the Supreme Court’s guidance in Eklof, we
understand the parties’ arguments about the tort claim
notice and the statute of limitations to go to whether the
proposed amendment was futile. As explained below, the
court’s conclusions on both of those issues were legally erro-
neous; plaintiff’s proposed amendment was not futile.
As to the tort claim notice, defendants contended
below, and contend again on appeal, that not every fact
relevant to the negligent supervision claim was stated in
plaintiff’s tort claim notice. Defendants cite no legal author-
ity for the proposition that a plaintiff must state in the tort
claim notice every single fact within the plaintiff’s knowl-
edge that may prove relevant to the plaintiff’s claim, and we
are aware of none. See ORS 30.275(4)(b) (formal notice to a
public body must include “[a] description of the time, place
and circumstances giving rise to the claim, so far as known
to the claimant”). The trial court erred in concluding that
plaintiff’s tort claim notice did not encompass a negligent
supervision claim.
As to the statute of limitations, defendants con-
tended below, and again argue on appeal, that plaintiff’s
negligent supervision claim was filed outside of the statute
of limitations and does not relate back to the filing of the
original complaint. Plaintiff agrees that the amended com-
plaint was timely only if it related back.
Defendants contend that plaintiff’s original com-
plaint did not give them notice of the negligent supervision
claim, because the negligent supervision claim involves
events that took place on days other than the day when
plaintiff was injured. We disagree with defendants’ char-
acterization of the scope of the original complaint. The
original complaint alleged facts—including facts about the
conduct of Altman, Stubblefield, Jamieson, McKenna, and
Mennenga—and specifications of negligence that put defen-
dants on notice that plaintiff’s claim asserted that negli-
gent supervision of the university basketball program led to
plaintiff’s injury. See, e.g., Concienne v. Asante, 273 Or App
analyze them. Id. at 545-54. In this case, there is no dispute about what mate-
rials should have been considered or how to consider them, so we do not recount
that part of the Supreme Court’s opinion.
724 Clark v. University of Oregon
331, 341, 359 P3d 407 (2015) (amended complaint related
back when the new allegations added more particularity
about how the defendant was negligent but concerned the
same predicate facts and the same injury). The court erred
in concluding that the amended complaint would not relate
back to the filing of the original complaint. Thus, the pro-
posed amendment was not futile.
“[L]eave [to amend] shall be freely given when jus-
tice so requires.” ORCP 23 A. “[T]he gravamen of the inquiry
under ORCP 23 A is prejudice to the opposing party,” and a
court may also consider whether the proposed amendment is
futile. Eklof, 369 Or at 533. In this case, the amendment was
not futile. Moreover, defendants did not raise, nor did the
court identify, any way in which defendants would be prej-
udiced by the proposed amendment beyond the purported
lack of notice of the negligent supervision claim, which we
have rejected as inconsistent with the original complaint.
Accordingly, the court abused its discretion in denying the
motion for leave to amend the complaint to state a claim for
negligent supervision.
Finally, we address plaintiff’s third assignment of
error, in which he contends that the trial court erred in
denying his motion for summary judgment on defendants’
defense of “comparative fault/contributory negligence,” because
defendants presented no evidence to support that defense.
At the summary judgment hearing, defendants attempted
to withdraw the defense, but the trial court urged them to
reconsider, and they did; the trial court subsequently denied
plaintiff’s motion. On appeal, defendants do not defend the
merits of that ruling. We agree with plaintiff that there was
no evidence in the record to support the defense—as defense
counsel recognized below and again on appeal. The trial
court erred in denying plaintiff’s motion for summary judg-
ment in that respect.
Reversed and remanded.