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Rountree V. Boise Baseball, LLC Appellant's Reply Brief Dckt. 38966

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Rountree V. Boise Baseball, LLC Appellant's Reply Brief Dckt. 38966 UIdaho Law Digital Commons @ UIdaho Law Idaho Supreme Court Records & Briefs 6-12-2012 Rountree v. Boise Baseball, LLC Appellant's Reply Brief Dckt. 38966 Follow this and additional works at: https://digitalcommons.law.uidaho.edu/ idaho_supreme_court_record_briefs Recommended Citation "Rountree v. Boise Baseball, LLC Appellant's Reply Brief Dckt. 38966" (2012). Idaho Supreme Court Records & Briefs. 3724. https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/3724 This Court Document is brought to you for free and open access by Digital Commons @ UIdaho Law. It has been accepted for inclusion in Idaho Supreme Court Records & Briefs by an authorized administrator of Digital Commons @ UIdaho Law. For more information, please contact [email protected]. IN THE SUPREME COURT OF THE STATE OF IDAHO BUD ROUNTREE, PlaintifflRespondent, Docket No. 38966 vs. APPELLANTS' REPLY BRIEF BOISE BASEBALL, LLC, a Delaware Limited Liability Corporation d.b.a. Boise Baseball, d.b.a. Boise Baseball Club d.b.a. Boise Hawks Baseball Club LLC, d.b.a. Boise Hawks, BOISE BASEBALL, LLC, an Idaho Limited Liability Corporation d.b.a Boise Baseball, d.b.a. Boise Baseball Club, d.b.a. Boise Hawks Baseball Club, LLC, d.b.a. Boise Hawks, BOISE HAWKS BASEBALL CLUB, LLC, an assumed business name of Boise Baseball, LLC, HOME PLATE FOOD SERVICES, LLC, an Idaho Limited Liabili~yCorporation, MEMORIAL STADIUM, INC., WRIGHT BROTHERS, THE BUILDING COMPANY, an Idaho General Business Corporation, TRIPLE P, INC., an Idaho general business corporation, DIAMOND SPORTS, INC., a New York Corporation, DIAMOND SPORT CORP., an Idaho corporation, DIAMOND SPORTS MANAGEMENT AND DEVELOPMENT, LLC, an Idaho Limited Liability Corporation, CH2M HILL, INC., a Florida Corporation d.b.a. Ch2M Hill, CH2M HILL CONSTRUCTORS, INC. d.b.a. Ch2M Hill, CH2M HILL E&C, INC., d.b.a Ch2M Hill, CH2M HILL ENGINEERS, INC. d.b.a. Ch2M Hill, CH2M HILL INDUSTRIAL DESIGN AND CONSTRUCTION, an assumed business name of Ch2M Engineers, mc., CH2M HILL, a foreign corporation doing business in Idaho under the name Ch2M Hill, WILLIAM CORD PEREIRA, ROBERT PEREIRA, and JOHN DOES I through X, whose true identities are unknown, Defendants/Appellants. APPELLANTS' REPLY BRIEF - BOISE BASEBALL, LLC, BOISE HAWKS BASEBALL CLUB, LLC AND HOME PLATE FOOD SERVICES, LLC Appeal from the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Ada Honorable Darla Williamson, District Judge, Presiding Wm. Breck Seiniger, Jr., ISB #2387 Joshua S. Evett, ISB #5587 SEINIGER LAW OFFICES, P.A. Jade C. Stacey, ISB #8016 942 Myrtle Street ELAM & BURKE, P.A. Boise, Idaho 83702 251 E. Front Street, Suite 300 P.O. Box 1539 Attorneys for PlaintifflRespondent Bud Boise, Idaho 83701 Rountree Telephone: (208) 343-5454 Facsimile: (208) 384-5844 Attorneys for Defendants/Appellants Boise Baseball, LLC, Boise Hawks Baseball Club, LLC and Home Plate Food Services, LLC TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES ........................................ ii STATEMENT OF THE CASE ................................................... 1 A. Introduction ...................................................... 1 B. Statement of the Facts .............................................. 2 ARGUMENT ................................................................. 5 A. The Court Should Adopt the Limited Duty Rule and Find That Appellants Complied with it .................................................. 5 1. This Is a Case about Competing Views of Society .................. 5 2. The Court Has the Power to Develop Common Law Duty Rules and Has Chosen to Do So on Many Prior Occasions ........................ 9 3. Every Jurisdiction Having Addressed this Situation Has Adopted the Limited Duty Rule in Some Form .............................. 11 4. The Limited Duty Rule Does Not Distinguish Between So-Called Open- Bleacher Seating and MUlti-purpose Areas . ...................... 14 B. The Court Should Find That Primary Implied Assumption of Risk Remains a Viable Defense in Idaho ............................................ 18 C. The Parties Conceded at Oral Argument on Defendants' Motion for Summary Judgment That the Motions to Strike Were Irrelevant to the District Court's Summary Judgment Determination. ................................. 23 CONCLUSION .............................................................. 24 CERTIFICATE OF SERVICE .................................................. 25 -1- T ABLE OF AUTHORITIES CASES Akins v. Glens Falls City Sch. Dist., 441 N.Y.S.2d 644, 424 N.E.2d 531 (N.Y. 1981) ....... 11 Alwin v. St. Paul Saints Baseball Club, Inc., 672 N.W.2d 570 (Minn. Ct. App. 2003) .... 11,19 Anderson v. Kansas City Baseball Club, 231 S.W.2d 170, 173 (Mo. 1950) ............... 11 Arnold v. City of Cedar Rapids, 443 N.W.2d 332 (Iowa 1989) ....................... 11,19 Bellezzo v. State, 174 Ariz. 548, 851 P.2d 847 (Ct. App. 1992) .................... 0 •••• 11 Benejam v. Detroit Tigers, Inc., 246 Mich.App. 645, 635 N.W.2d 219 (2001) ................................................................ 11, 13, 15 Bramwell v. South Rigby Canal Co., 136 Idaho 648,39 P.3d 588 (2001) .................. 9 Chavez v. Barrus, 146 Idaho 212, 192 P.3d 1036 (2008) ............................... 9 Cincinnati Baseball Club Co. v. Eno, 1120hioSt. 175, 147 N.E. 86 (1925) ............... 11 Costa v. Boston Red Sox Baseball Club, 61 Mass.App.Ct. 299,809 N.E.2d 1090 (Mass. App. Ct. 2004) ......................................................... 11 Crespin v. Albuquerque Baseball Club, LLC, 216 P.3d 827 (N.M. Ct. App. 2009) .......... 14 Davenport v. Cotton Hope Plantation, 333 S.C. 71, 508 S.E.2d 565 (1998) ............... 18 Edward C. v. City ofAlbuquerque, 148 N.M. 646,241 P.3d 1086 (2010) ............ 1, 12,14 Erickson v. Lexington Baseball Club, 233 N.C. 627, 65 S.E.2d 140 (1951) ................ 11 Freeman v. luker, 119 Idaho 555,808 P.2d 1300 (1991) ............................... 9 Friedman v. Houston Sports Ass'n, 731 S.W.2d 572 (Tex. App. 1987) ................... 12 Hobby v. City of Durham and Durham Bulls Baseball Club, Inc., 569 S.E.2d 1 (N.C. Ct. App. 2002) .......................................................... 11 Hunt v. Portland Baseball Club, 207 Or. 337, 296 P.2d 495 (Or. 1956) ............... 11, 18 Lawson ex rei. Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013 (Utah 1995) ...................................................... 11, 13, 15, 18, 19 Lorino v. New Orleans Baseball & Amusement Co., 16 La.App. 95, 133 So. 408 (1931) ..... 11 Maisonave v. Newark Bears Professional Baseball Club, Inc., 185 N.J. 70, 881 A.2d 700 (2005) ................................................................... 12, 14 Moulas v. PBC Productions Inc., 217 Wis.2d 449,576 N.W.2d 929 (1998) ............... 12 Neinstein v. Los Angeles Dodgers, Inc., 185 Cal.App.3d 176,229 Cal.Rptr. 612 (1986) ...... 18 Pakett v. The Phillies, L.P., 871 A.2d 304 (Pa. Commw. Ct. 2005) ...................... 12 Perry v. Seattle School Dist. No.1, 66 Wash.2d 800, 405 P.2d 589 (1965) ................ 12 Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011) ................................... 19 Phelps v. State, 2005 WL 2205633 (Fla. Dist. Ct. App. 1st Dist. 2005) ................... 14 Ruffing v. Ada County Paramedics, 145 Idaho 943, 188 P.3d 885 (2008) .................. 9 Salinas v. Vierstra, 107 Idaho 984, 695 P.2d 369 (1985) ............................ 1, 18 -ii- Sciarrotta v. Global Spectrum, 194 N.J. 345, 944 A.2d 630 (2008). .................... 11 Sparks v. Sterling Doubleday Enterprises, LP, 752 N.Y.S.2d 79 (N.Y.S. Ct. App. Div. 2002) . 11 Thurman v. Prince Williams Professional Baseball Club, Inc., 265 Va. 59, 574 S.E.2d 246 (2003) ...................................................................... 12 Tite v. Omaha Coliseum Corp., 144 Neb. 22 (Neb. 1943) ............................. 12 Turcotte v. Fell, 68 N.Y.2d 432,502 N.E.2d 964,510 N.Y.S.2d 49 (N.Y. Ct. App. 1986) .... 18 Turpen v. Granieri, 133 Idaho 244,985 P.2d 669 (1999) ............................... 9 Turner v. Mandalay Sports Entertainment, LLC, 180 P.3d 1172 (Nev.2008) .............................................. 11, 13, 15, 17, 18, 19, 20 Winn v. Frasher, 116 Idaho 500, 777 P.2d 722 (1989) .......................... 1,9, 18, 19 STATUTES AND RULES ARIZ. REV. STAT. ANN § 12-554 (1999) ........................................ 10, 11 COLO. REV. STAT. ANN. § 13-21-120 (1994) ........................................ 11 N.J. STAT. ANN. § 2A:53A-43 - 2A:53A-48 (2006) ............................ 10,11,12 745 ILL. COMPo STAT. ANN. 38/1 (1992) ........................................ 10, 11 MISCELLANEOUS James L. Rigelhaupt, Jr., Liability to Spectator at Baseball Game Who Is Hit by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979 & Supp.2003) ............ 11,14 -111- STATE:MENT OF THE CASE A. Introduction Appellants Boise Baseball, LLC, Boise Hawks Baseball Club, LLC and Home Plate Food Services, LLC (collectively "the Boise Hawks") request that the Court (1) adopt the limited duty rule (i.e., the baseball rule); and (2) find that primary implied assumption of risk remains a viable defense in Idaho. In his response, Respondent Bud Rountree puts forth two main arguments. First, Mr. Rountree contends that the limited duty rule distinguishes between so-called Open-Bleacher Seating and Multi-Purposes Areas, and the modem trend is to reject the limited duty rule. In fact, the trend in both past and modem decisions has been to adopt the limited duty
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