Gallagher v. Cleveland Browns Football Co., Inc.

Because I believe the defendants-appellants, Cleveland Browns Football Company, Inc., Cleveland Browns, Inc. and Cleveland Stadium Corporation, Inc., have waived their right to assert the defense of primary assumption of risk, I respectfully dissent from the majority's decision to reverse the jury verdict finding in favor of plaintiffs-appellees, Michael Gallagher and Northbrook Property and Casualty Insurance Co.

Under the unique procedural circumstances presented by the case sub judice, I conclude that the appellants waived their right to assert the defense of primary assumption of risk by failing to raise the defense prior to or during trial. The record reveals that the defense of primary assumption of risk was not raised until defendant-appellant Cleveland Browns Football Company, Inc. filed its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

It is well established that a party may waive an affirmative defense if not brought to the trial court's attention. Civ.R. 8(C); and, see, Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55, 69 O.O.2d 350, 320 N.E.2d 668; Hoover v. Sumlin (1984), 12 Ohio St.3d 1, 12 OBR 1, 465 N.E.2d 377. However, a party may raise as an affirmative defense issues which were not raised in the pleadings by implied amendment when an amendment would conform to the evidence and when an issue has been tried by either the express or implied consent of the parties. Civ.R. 15(B); see, also, Hoover, supra; State ex rel. Evans v.Bainbridge Twp. Trustees (1983), 5 Ohio St.3d 41, 5 OBR 99,448 N.E.2d 1159; Mason v. Swartz (1991), 76 Ohio App.3d 43,600 N.E.2d 1121; and Goldfarb v. The Robb Report, Inc. (1991),77 Ohio App.3d 362, 602 N.E.2d 329. In the present case, the record reveals that while appellants pleaded the affirmative defense of assumption of risk in their separate answers, appellants failed to expressly raise the defense of primary assumption of risk at any time prior to the motion for judgment notwithstanding the verdict filed by defendant-appellant Cleveland Browns Football Company, Inc.

In the recent case of Cooper v. Grace Baptist Church ofColumbus, Ohio, Inc. (1992), 81 Ohio App.3d 728, 612 N.E.2d 357, the Franklin County Court of Appeals held that it was reversible error to permit defendants to raise for the first time the affirmative defense of privilege on a motion for directed verdict made after the plaintiffs' case-in-chief when it had not been raised in defendants' answer or when the issue was never developed during the course of proceedings. The court reached its conclusion while being mindful of Civ.R. 15(B), which permits liberal amendments to pleadings when an amendment would "conform to the evidence" and when the issue has been tried by either the "`express or implied consent of the parties.'" (Emphasis added.) Id. at 735, 612 N.E.2d at 361, quotingState ex rel. Evans, supra.

In the instant case, the following relevant facts must be considered:

1. While each appellant raised the affirmative defense of assumption of the risk in its original and amended answers, the defense of primary assumption of risk was not raised until appellant Cleveland Browns Football Company, Inc. filed its motion for judgment notwithstanding the verdict. In their separate answers, each appellant stated, "defendant says that plaintiff Michael Gallagher assumed any risk of injury." This exact language was used in each answer and/or amended answer that was filed on behalf of the appellants.

2. The appellants did not raise the affirmative defense of primary assumption of the risk in their joint trial brief that was filed approximately two weeks prior to the trial's commencement. In fact, appellants contended "that if they were negligent, then plaintiff Michael Gallagher was comparatively negligent * * *." (Trial brief, at 2.) Likewise, none of the proposed jury instructions submitted with the trial brief requested an instruction on primary assumption of the risk.¹

3. At the close of all the evidence, the appellants jointly moved for a directed verdict. The basis for this motion was their assertion that Gallagher's status as an invitee had changed to that of a licensee by virtue of the fact that Gallagher had placed himself inside the yellow hash line. Focusing on plaintiff's behavior rather than a lack of duty owed by themselves (which is the hallmark of primary assumption of the risk), appellants contended that plaintiff's change in status to that of a licensee rendered them free of any duty to plaintiff other than acting in a willful and/or wanton manner. Again, appellants failed to raise the affirmative defense of primary assumption of the risk.

4. While appellants did try to establish that Gallagher knew of all the attendant risks involved with videophotographing a professional football game, including the increased risk of performing this task in a kneeling position close to the field of play, this again is not the premise upon which to establish a case of primary assumption of the risk. This was succinctly stated in Mima v. Akron (1986), 31 Ohio App.3d 124, 125, 31 OBR 211, 211-212, 508 N.E.2d 974, 975-976, where that court held that primary assumption of the risk is an alternative expression for the concept that a defendant either owed no duty to a plaintiff or did not breach a duty owed. As such, the defense is not related to the plaintiff's conduct, nor is it merged with the defense of contributory negligence. See, also, Jaworowski v.Med. Radiation Consultants (1991), 71 Ohio App.3d 320, 335,594 N.E.2d 9, 19 ("A necessary predicate to an instruction on primary assumption of risk is the existence of some fact that suggests the defendant owed no duty or breached no duty owed."). Instead, appellants framed their argument upon plaintiff's behavior and the alleged resultant change of his status (from invitee to licensee) as a basis for their contention that they no longer owed the duty of care which is required by the superior (invitee) status. Only after trial, when their change-of-status argument had failed, did defendant Cleveland Browns Football Company, Inc. assert the defense of primary assumption of the risk based upon the premise of no duty owed to plaintiff.

5. During closing arguments, counsel for appellants urged the jury to listen to, and then read carefully, the definitions of "invitee," "licensee" and "trespasser" and the duty that an individual owes to each. Again, appellants focused on the behavior of plaintiff rather than on the duty owed by the defendants. Additionally, defense counsel urged the jury to "listen and read carefully the instructions with regard to assumption of the risk instruction, comparative negligence * * *." When taken in this context, and coupled with the jury instructions on comparative negligence, the only conclusion that can be reached is that defense counsel was referring to implied or secondary assumption of the risk when he referred to "assumption of the risk instructions."

6. Subsequently, the trial judge read and explained the jury instructions that included definitions of "invitee," "licensee" and "trespasser," along with the duties owed to each, and instructions on negligence and the affirmative defense of comparative negligence, including the principles of apportionment of liability. The trial judge also explained the interrogatories that the jury would be given and how to proceed with each, depending upon their particular findings. After instructing the jury on these particular areas of law, as well as several other areas not particularly relevant here, she then gave counsel for both sides an opportunity to formally state their objections. Defense counsel offered no objections, but merely stated, "Your Honor, I have none. Thank you." Once more, defendants' opportunity to advocate the defense of primary assumption of the risk was not utilized.

7. Finally, the jury, in returning its unanimous decision, found that appellants were negligent and that their negligence was a proximate cause of plaintiff's injuries. Likewise, the jury also found that plaintiff Gallagher, either by his own negligence or by his implied assumption of risk, contributed to his injury and, on a comparative basis, was thirty-five percent at fault. As can be seen from the foregoing, defense counsel made no effort to assert the affirmative defense of primary assumption of risk. Instead, counsel focused on the appellee's conduct and relied on the defense of implied or secondary assumption of the risk. Consequently, appellants waived their right to assert the defense of primary assumption of risk by not raising this defense in their pleadings or by amendment to the pleadings to conform to the evidence.

It is further noteworthy that appellants' failure to assert the defense of primary assumption of risk may not have been by accident. As previously stated, a party may waive an affirmative defense. Civ.R. 8(C); Mills, Hoover, and Cooper, supra. Moreover, the decision to waive an affirmative defense may well be a sound tactical decision. In the present cause, the record reveals that appellants' counsel pursued the defense of implied assumption of risk and comparative fault. The potential benefits of such defense are obvious when compared to the risks of pursuing the defense of primary assumption of risk.

First, the jury could have found in appellants' favor by concluding that appellants were not negligent or that appellants' negligence, if any, did not proximately cause plaintiff's injuries. In fact, defense counsel did take this approach with the jury by arguing that when plaintiff crossed over the yellow media line, he ceased being a business invitee and became a licensee or, worse, a trespasser. In such case, plaintiff would be required to show that appellants' conduct was reckless. However, as defense counsel was quick to point out, plaintiff did not plead any allegations of willful, wanton or reckless conduct. In such case, plaintiff would not, therefore, be entitled to any recovery.

Second, the jury could have found that appellants were negligent and that such negligence was a proximate cause of plaintiff's injuries, but that plaintiff's negligence was greater than the combined negligence of the appellants. Again, in such case, plaintiff would not be entitled to any recovery. Alternatively, the jury could have apportioned fault in favor of plaintiff, but, nonetheless, appellants' overall liability could be reduced accordingly. This is, in fact, what happened.

Finally, and least likely, the jury could have concluded that appellants' negligence was the sole, proximate cause of plaintiff's injuries. In such case, appellants would be fully liable for plaintiff's injuries. Thus, the decision to pursue an implied assumption of risk/comparative negligence defense in the case at bar provided appellants with the opportunity to argue that they have no liability for plaintiff's injuries or that their liability should be reduced by plaintiff's comparative fault. Moreover, the least likely scenario would result in a jury's finding appellants fully liable for plaintiff's injuries. As will be seen, however, the risks of pursuing a primary assumption of risk defense could present an "all or nothing" decision for the jury concerning appellants' liability for plaintiff's injuries.

As previously mentioned, raising the defense of primary assumption of risk is not without some peril. Had defense counsel raised such defense in the pleadings, plaintiff's counsel may have sought leave of court to amend his complaint to plead willful, wanton or reckless misconduct on the part of appellants. In fact, plaintiff Gallagher was forced to argue that appellants' kneeling policy amounted to willful, wanton or reckless misconduct in his brief in opposition to the motion for judgment notwithstanding the verdict filed by appellant Cleveland Browns Football Company, Inc. and in his appellee's brief before this court. This was done, however, without the opportunity for plaintiff to fully develop this issue at trial and before the jury, which is most eminently suited to judge appellants' conduct.

It is well settled that leave of court is to be fully given when justice requires. Civ.R. 15(B); State ex rel. Evans,supra. Moreover, primary assumption of risk is not a defense to tortious conduct which is willful, wanton or reckless. Marchettiv. Kalish (1990), 53 Ohio St.3d 95, 559 N.E.2d 699; Thompson v.McNeill (1990), 53 Ohio St.3d 102, 559 N.E.2d 705. More importantly, the difference between negligent conduct and willful or reckless conduct is a matter of degree. See 2 Restatement of the Law 2d, Torts (1965), Section 500,² and 1 Restatement of the Law 2d, Torts (1965), Section 8A. Thus, had the defense of primary assumption of risk been raised in the pleadings or at trial, and had plaintiff Gallagher amended his pleadings to allege willful, wanton or reckless misconduct on the part of appellants (as is likely), appellants would be exposed to an "all or nothing" risk of liability for plaintiff Gallagher's injuries, since primary assumption of risk is not a defense to willful, wanton or reckless misconduct. Moreover, appellants would potentially be exposed to punitive damages should their conduct be considered willful or wanton. See R.C.2315.21; Villella v. Waikem Motors, Inc. (1989), 45 Ohio St.3d 36, 543 N.E.2d 464; Vebelacker v. Cincom Systems, Inc. (1992),80 Ohio App.3d 97, 608 N.E.2d 858.

At trial, the main "bone of contention" between the parties was the issue of whether the kneeling rule that was enforced in this particular area of Cleveland Stadium was necessary. Evidence adduced at trial revealed that the Dawg Pound is significantly elevated above the playing field and that the Browns' personnel have no record or recollection of a history of complaints by Dawg Pound fans that their view was obstructed by cameramen standing behind the end zone. In addition, plaintiff Gallagher testified at trial that "there are always photographers on the white line in the end zone, and by being here so many years, I assumed that was the normal procedure." Likewise, trial testimony also revealed that if a cameraman were standing behind the yellow hash lines (i.e., on top of the incline), he would be blocking the view of fans located in the Dawg Pound. Furthermore, it would be virtually impossible to kneel in this area, as the incline is too severe. Testimony also revealed that when a cameraman stands at the foot of the incline (i.e., at the outside edge of the white border), the view from the Dawg Pound is not blocked, thus making the kneeling policy in that area unnecessary and, given the fact that that particular area (from the outer edge of the white border to the foot of the incline) is narrow and the incline directly behind was snow-covered, the kneeling policy was also fraught with danger. The issue at trial then became a question of whether the Browns were negligent in implementing the kneeling policy and whether appellee unreasonably assumed the risk. The jury answered both inquiries affirmatively, and liability was accordingly apportioned.

However, pursuant to the motion for judgment notwithstanding the verdict, the issue became a question of whether appellee knowingly and voluntarily assumed an ordinary, inherent risk that was part and parcel of his participation in the activity of filming a professional football game, with no attendant duty on the part of the Browns, other than to refrain from acting intentionally or recklessly. Thus, the doctrine of primary assumption of the risk would be applicable, and appellants would be relieved from any liability. On the other hand, it cannot be shown, by way of motion, that the Cleveland Browns' kneeling policy in this area of the field was reckless. Thus, appellants cannot lose by asserting primary assumption of risk by way ofmotion, since the issue of their recklessness was never raised at trial. Accordingly, I believe that the issue of whether plaintiff Gallagher assumed the risk is an issue of fact for the jury's determination. Siglow v. Smart (1987), 43 Ohio App.3d 55,539 N.E.2d 636. Additionally, the issue of whether the Cleveland Browns' kneeling policy as it relates to this area of the playing field creates an inordinate risk, not inherent in Gallagher's usual and customary activities, is also a question of fact for the jury's determination. Id.

While the majority's opinion addresses the waiver issue, I believe its reliance on Civ.R. 8(C) is misplaced. I agree that a pleading, including an answer, shall be simple, concise and direct and that no technical forms of pleading are required. Nonetheless, a pleading should give the opposing party adequate notice of the nature of the action or defense. See Conley v.Gibson (1957), 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80,101-102; Salamon v. Taft Broadcasting Co. (1984), 16 Ohio App.3d 336, 16 OBR 385, 475 N.E.2d 1292; and DeVore v. Mutual of OmahaIns. Co. (1972), 32 Ohio App.2d 36, 61 O.O.2d 21, 288 N.E.2d 202. In the present case, appellants pleaded the defense of assumption of risk but chose to pursue the doctrine of implied assumption of risk as their defense at trial. The majority's opinion adequately sets forth the differences between primary and implied assumption of risk. These differences, as well as any strategic decisions on appellants' part to pursue one over the other, must be kept in mind when determining whether the appellants adequately placed plaintiff Gallagher on notice of their defense. It is these differences and appellants' decision to pursue implied assumption of risk as a defense at trial that lead me to conclude that appellants waived the defense of primary assumption of risk.

The majority is also correct when it states that a motion for judgment notwithstanding the verdict may be made whether or not a motion to direct a verdict has been made. Nonetheless, an affirmative defense such as primary assumption of risk must be raised in a fashion sufficient to place the opposing party on notice, at the latest, at trial. Civ.R. 12(H)(2). The only exception is lack of subject matter jurisdiction. Civ.R. 12(H)(3). In the present case, appellants failed to raise at trial the defense of primary assumption of risk.

The majority concludes that appellants are entitled to judgment as a matter of law. However, for the reasons previously stated, I believe appellants have waived their right to assert the defense of primary assumption of risk. Moreover, even if the defense had not been waived, I conclude that, under the unique factual circumstances presented herein, the issue of whether the Cleveland Browns' kneeling policy was reckless is a question of fact for the jury's determination. See Siglow, supra. Thus, the defense of primary assumption of risk would not apply if the jury determined appellants' conduct to be reckless. Accordingly, I would overrule appellants' sole assignment of error and affirm the judgment of the common pleas court.

¹ While not dispositive, it is noteworthy that defendant Andy Frain Services did include in its trial brief an instruction on primary assumption of the risk based upon Siglowv. Smart (1987), 43 Ohio App.3d 55, 58, 539 N.E.2d 636, 639-640. It also argued this defense in its trial brief.

² "Negligence and recklessness contrasted. Reckless misconduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. It differs not only from the above-mentioned form of negligence, but also from that negligence which consists in intentionally doing an act with knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind." Commentg, Restatement of the Law 2d, Torts, Section 500, at 590.