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Maytnier v. Rush

MARCH 6, 1967.

DAVID M. MAYTNIER, JR., BY DAVID M. MAYTNIER, HIS FATHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

ROBERT RUSH, DEFENDANT-APPELLEE, AND CHICAGO NATIONAL LEAGUE BALL CLUB, INC., A CORPORATION, DEFENDANT. DAVID M. MAYTNIER, JR., BY DAVID M. MAYTNIER, HIS FATHER AND NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

CHICAGO NATIONAL LEAGUE BALL CLUB, INC., A CORPORATION, DEFENDANT-APPELLANT, AND ROBERT RUSH, DEFENDANT.



Appeals from the Circuit Court of Cook County, County Department, Law Division; the Hon. SAMUEL B. EPSTEIN, Judge, presiding. As to appeal No. 50,780 the appeal is dismissed. As to appeal No. 50,781 the judgment is affirmed. MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.

Rehearing denied April 5, 1967.

This is a consolidation of appeals from judgments, after the return of jury verdicts, entered in favor of plaintiff against defendant, Chicago National League Ball Club, Inc. (hereinafter referred to as defendant, Chicago Cubs) for $20,000 and in favor of defendant, Robert Rush (hereinafter referred to as defendant, Rush). General No. 50,780 is an appeal by plaintiff from the judgment for defendant Rush and General No. 50,781 is an appeal by defendant Chicago Cubs from the judgment for the plaintiff.

On September 13, 1957, plaintiff, David M. Maytnier, Jr., purchased a ticket to a Chicago Cubs doubleheader specifically requesting a seat as close to the Cubs' dugout as possible so that he could get a better view of the players. He received and occupied a seat in the front row, approximately ten to fifteen seats to the outfield side of the Cubs' dugout. Plaintiff had been to Wrigley Field six to twelve times over the previous two to three years. He knew a protective screen was provided behind home plate and that none was so provided in the area where his seat was located.

During the sixth inning of the second game, plaintiff was struck and injured on the left side of his head by a ball thrown from the bullpen by defendant Rush. This warming up area or bullpen was located on the field of play between the third base foul line and the grandstand at a point about midway between the Cubs dugout and the left field wall. Pitchers warming up therein would throw in approximately the same direction as would the pitcher in the game itself. Plaintiff knew of the bullpen's proximity to the grandstand, and that it was not uncommon for some warming up activity to take place there. The seat occupied by plaintiff was in such a position that it required him to look to his right to see the pitcher and batter in the game and to his left to see the bull pen activity. In just which direction plaintiff was looking when struck by the ball was much controverted.

Testimony was elicited which showed that Cub pitchers may warm up of their own volition or by the specific direction of a manager, and that a pitcher may, on occasion while warming up, experiment with a new pitch. It was proffered that defendant Rush was having a bad year and that when a pitcher is having a bad year, he attempts to correct his pitching rhythm. The warm up catcher, Gordon Massa, testified that the pitch in question went up to his left beyond his reach. Massa was six feet three inches tall.

Evidence was offered to show that there exists a substantial benefit, to be able to throw warm up pitches in the same direction as the pitcher in the game and also thus be able to examine the opposing batters as they come to bat. Testimony was also introduced to support the contention that there existed no other feasible location in Wrigley Field for such a bullpen. Defendant Rush admitted that he had thrown "wild pitches" while warming up on prior occasions.

It is defendant Rush's theory of the case in No. 50,780 that plaintiff's appeal should be dismissed for want of timeliness under the Supreme Court Rules.

It is defendant Chicago Cubs' theory of the case in No. 50,781: (1) that it was under no duty to screen off its entire park and is, as a matter of law, not liable to spectators at a game, who are struck by baseballs; (2) that plaintiff assumed the risk of injury; and (3) that the trial court erred in not directing a verdict in its favor.

It is plaintiff's theory of the case in No. 50,781: (1) that defendant Chicago Cubs violated the duty an owner-occupier of premises owes to invitees present thereon by establishing and maintaining a dangerous facility in proximity to the grandstand; (2) that defendant Chicago Cubs was negligent in allowing defendant Rush to experiment with new pitches while in the bullpen; (3) that defendant Rush was negligent in throwing the ball into the grandstand; and (4) that the verdict returned for defendant Rush was against the manifest weight of the evidence.

In case No. 50,780 plaintiff appeals from a judgment entered below in favor of defendant Rush. Defendant Rush filed a motion to dismiss the appeal, (which was taken with the case) on grounds that the appeal was not perfected within the time permitted by Supreme Court Rule 35. A judgment was entered upon the verdict on January 14, 1965. Plaintiff and both defendants filed post-trial motions which were denied on April 28, 1965. Defendant Chicago Cubs filed notice of appeal 16 days thereafter on May 14, 1965, and plaintiff filed notice of appeal from the judgment in favor of defendant Rush on June 25, 1965, 58 days after the judgment had become final. Supreme Court Rule 35(1), Ill Rev Stats 1965, c 110, par 101.35(1) stated:

"Each appellee who desires to prosecute a cross appeal from all or any part of the judgment, decision, order or decree, and each co-party who did not join in the notice of appeal but who desires to join as appellant or to prosecute a separate appeal shall, within 10 days after service upon him of notice of appeal, serve a notice upon each party or attorney or firm of attorneys who signed the notice of appeal, and upon each appellee, person or officer entitled to receive notice of appeal, and file a copy thereof in the trial court."

It is defendant Rush's position that once defendant Chicago Cubs filed its notice of appeal 16 days after the judgment became final, it then became incumbent upon plaintiff to file his notice of cross appeal within 10 days thereafter, or within a sum total of 26 days after the judgment became final notwithstanding the general provision found in the Civil Practice Act, Ill Rev Stats 1965, c 110, par 76, allowing 60 days for the filing of notice of appeal. Plaintiff contends that as to defendant Rush, he is neither an appellee nor a coparty who did not file a separate notice of appeal within the meaning of the statute. In addition, plaintiff points out that separate judgments were entered from the verdict in the trial court. This court is of the opinion that plaintiff's reasoning, if accepted here, would operate to defeat the intent of Supreme Court Rule 35.

In case No. 50,781, we find that plaintiff entered the premises of defendant Chicago Cubs as a business invitee. Reciprocal benefits were derived as a result. Plaintiff, by accepting the public invitation held out by the defendant Chicago Cubs, was entertained by the performance of professional athletes, and defendant Chicago Cubs in consideration therefor, received pecuniary benefit.

[2-6] It is well established law in this State that the owner-occupier of lands is not an insurer of the safety of invitees on his premises, but he is under a duty to exercise reasonable care for their protection. An owner-occupier's liability to an invitee for injuries not intentionally inflicted must be predicated upon negligence, and no presumption of negligence on the part of the owner-occupier arises merely by showing that an injury has been sustained by one rightfully upon the premises. Altepeter v. Virgil State Bank, 345 Ill. App. 585, 104 N.E.2d 334 (1952). Moreover, this duty of reasonable care owed to an invitee does not require a complete fencing of the ...


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