# Higgins v. Pfeiffer

> Michigan Court of Appeals · April 29, 1996 · 215 Mich. App. 423

URL: https://www.frixlaw.com/law-library/cases/9709840

## Case

- **Full name:** Higgins v. Pfeiffer
- **Court:** Michigan Court of Appeals
- **Decided:** April 29, 1996
- **Citations:** 215 Mich. App. 423; 546 N.W.2d 645
- **Precedential status:** Published
- **Opinion:** Dissent by Kelly
- **Judges:** Kelly, Sawyer, Freeman
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Michael J. Kelly, P.J.,
(dissenting). I respectfully dissent.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). Neither the lower court nor the majority specifies the subsection on which it relies, but I think it erred with regard to both.
Plaintiffs cause of action is not barred simply because defendants were not alleged to have perpetrated wilful, reckless, or grossly negligent acts. Plaintiff has a legitimate cause of action based on his allegations of negligence. The majority opts for *428 a new rule that defendants cannot be liable unless their acts can be characterized as intentional or reckless. Although the trial court erred in granting defendants’ motion on the basis that an athlete participating in a game assumes all obvious and foreseeable risks that are incident to the contest, the majority finds that the trial court reached the right result for the wrong reasons.
Assumption of the risk for sports-related injuries was abolished with the decision in Carey v Toles, 7 Mich App 195 ; 151 NW2d 396 (1967), relying on Felgner v Anderson, 375 Mich 23 ; 133 NW2d 136 (1965). Note that in Carey , there was no discussion of gross negligénce or wilful, wanton, or intentional misconduct. The applicable law was assumed to be ordinary negligence.
In Overall v Kadella, 138 Mich App 351 ; 361 NW2d 352 (1984), this Court stated, apparently stacking by sleight of hand the equitable principle, "volenti non fit injuria, or, he who consents cannot receive an injury,” Overall, supra at 357 , and Restatement Torts, 2d, § 50, p 86, comment b, that consent to physical bodily contacts in sports contests prohibits recovery unless there is "an intentional act causing injury, which goes beyond what is ordinarily permissible, is an assault and battery for which recovery may be had.” Without citing Carey and without clearly ruling out liability for negligence, the Overall Court seems to have reintroduced assumption of the risk under questionable rationale. However, that rationale is dicta because the Court affirmed a verdict resulting from an injury that occurred during a hockey-game fight. The Court seems to have affirmed on the basis that the defendant intentionally struck the plaintiif in violation of "the rule against fighting” in hockey contests. There was testimony of the existence of such a rule. These two cases, cited by the majority, would seem to entitle plaintiif to *429 offer testimony about the rules of the game and permit a trier of fact to decide these questions of fact:
1. Defendant pitcher was capable of throwing fastballs with extreme velocity. "Almost 90 miles per hour.” Does that make plaintiff’s injury foreseeable and a breach of a duty of due care?
2. All three defendants were aware that defendant pitcher was throwing toward the Taylor team dugout and that the bench was beginning to fill with players returning from warm-up. Would a reasonable battery (pitcher and catcher) desist?
3. All three defendants were aware of the pitcher’s customary practice to "turn his last few warmup pitches loose,” meaning to throw them as fast and as hard as he was capable of. The team manager, Head Coach Leonard Makowski testified that the location where they were warming up was unsafe. Should the assistant manager have intervened?
4. Plaintiff had just returned to the dugout at the conclusion of outfield practice and taken a seat some ten to fifteen seconds before he was hit. Should defendants have been aware of his entry into their zone of activity and reacted accordingly?
In conclusion, whether plaintiff’s injury is within the understood and accepted dangers of the sport, including those resulting from carelessness during warm-up activities, is a question of fact for the trier of fact. The majority has imported a rule of law for which there is no precedent in this state except the majority’s ruling itself, which relies on Georgia and New York authorities. The predicate for this ruling is not based on "rules of the game” because none , were properly introduced into evidence and the lower court’s reliance on assumption of risk is clearly erroneous.
I would reverse.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9709840. Public record. Not legal advice.