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A License to Bean? –– Avila Broadens Primary

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A License to Bean? –– Avila Broadens Primary 130TH YEAR NO. 218 www.callaw.com WEDNESDAY, NOVEMBER 8, 2006 Practice Center LAW AND MANAGEMENT A License to Bean? ‘Avila’ broadens primary assumption of risk doctrine By Peter Vestal Roadrunners in 2001 when the a ball at a batter. It said a pitcher that might be tortious in other It takes extraordinary skill to pitcher for the Citrus Owls owes no duty to a batter under contexts is often an integral part launch a baseball at nearly 100 struck him in the head with a tort principles and is not li- of sporting or recreational miles per hour across the 60- pitched ball. The impact cracked able for the injuries he pursuits; an ordinary foot- some-odd feet separating the Avila’s helmet and purportedly might intentionally ball tackle could quali- pitcher’s rubber from home plate injured him. Avila claimed the cause, even fy as assault if per- and consistently place the ball pitch came in retaliation for one though the formed off the grid- within the strike zone. In- that hit an Owls player in the rules of iron. California’s doc- evitably, previous inning. trine of primary as- Personal batters Supreme Court review in the sumption of risk re- Injury find resulting lawsuit was limited to lieves co-participants them- negligence claims against the from the duty to use or- selves on the wrong end of a Citrus Community College dinary care and skill to misthrown pitch. Devotees of District. (Avila v. Citrus avoid injuring each other in the the national pastime accept this Community course of sporting or recreation- fact and might say it adds a cer- College, 38 Cal. al activities; the doctrine acts as tain frisson. But should a pitcher 4th 148 baseball a complete bar to recovery in a enjoy immunity from the conse- (2006)) expressly negligence action. quences of intentionally striking prohibit the prac- The doctrine assumed its mod- a batter? The California tice of “beaning” a ern form in Knight v. Jewett, 3 Supreme Court umpired just batter, and a batter hit by Cal. 4th 296 (1992), and its com- such a question earlier this year a ball can suffer serious injury panion, Ford v. Gouin, 3 Cal. 4th in a case that has caused the or even death. 339 (1992). The Knight plaintiff plaintiffs’ bar to cry foul. alleged the defendant knocked College baseball THE KNIGHT BEFORE her over during an informal player Jose Avila Among People have a general duty to touch football game and injured was batting for other findings, exercise reasonable care to avoid her finger, necessitating its am- the Rio the court declared injuring others, but voluntary putation. Ford concerned a water Hondo that the common law participants in a sporting or skier who sued the driver of the doctrine of primary as- recreational activity impliedly boat that was towing him after he sumption of risk shields a assume the risks inherent in the was injured when his head struck pitcher who intentionally throws activity. This is because conduct a tree limb extending over the waterway. Avila therefore clarifies that a defen- tivity that falls close to, but on the per- Applicability of the primary assump- dant’s intentions alone will not remove a missible side of a prescribed rule.” No tion of risk doctrine under Knight de- sports-injury claim from the reach of pri- matter whether the behavior in question pends on the nature of the sporting or mary assumption of risk; the behavior intentionally violated a stated rule, the recreational activity and the relationship must also lie totally outside the range of court evidenced its satisfaction that suf- of the litigants to the activity. Co-partic- the ordinary activity of the sport. The ficient authority recognized throws both ipants owe no duty to each other to de- court illustrated such out-of-the-ordinary close to and at batters as fundamental crease or eliminate inherent risks. behavior citing a 1999 incident where tactics to disrupt opponents. Knight instructs trial courts to decide Wichita State University’s pitcher hit a Baseball Hall of Famer Billy Herman, whether the risk of a particular harm is University of Evansville player waiting who worked for several Major League inherent to the sport and if so whether in the on-deck-circle for his turn at bat. clubs in California, once said, “Rules the defendant unreasonably increased Jose Avila, however, was fair game once are made to be broken, so there won’t be the risk of the harm occurring. Even he stepped into the batter’s box. Indeed, any rules.” The Owls pitcher may have where the defendant’s actions increase the court noted that Avila could not have broken the written rules of the game, but the probability of injury inherent to the amended his complaint to allege battery his throw to Avila’s head — even if in- activity, the plaintiff’s knowing and vol- because he manifested his consent to the tentional — did not fall outside the untary acceptance of the risk functions inherent risk of being intentionally struck range of ordinary activity in the sport. In as a so-called secondary assumption of by the ball when he chose to go onto the this case, the commentators and their risk. In such cases, the doctrine does not field. colorful vernacular trumped the black completely bar recovery; the principle and white rules of the game and sent of comparative fault will instead oper- ARE RULES MADE TO BE BROKEN? them packing to the cheap seats. ate to assist the trier of fact in establish- Major League Baseball rules specifi- ing the respective liabilities of the par- cally forbid pitchers from intentionally NOT QUITE A WHOLE NEW BALL GAME ties. throwing at a batter. Such conduct “is Justice Joyce Kennard’s dissent voic- unsportsmanlike and highly dangerous. es her concern that Avila’s expansion of INTENT ALONE WON’T GET YOU It should be — and is — condemned by the assumption of risk doctrine distorts TO FIRST BASE everybody.” (Official Rules of Major the negligence concept of due care to Knight provided that “a participant in League Baseball, rule 8.02(d), com- encompass reckless and intentional con- an active sport breaches a legal duty of ment.) Violators are subject to sanc- duct. Whether or not one agrees with care … only if the participant intention- tions, including ejection from the game. Justice Kennard’s assessment, Avila un- ally injures another player or engages in Similar rules govern play at the inter- questionably alters the rights and obli- conduct that is so reckless as to be total- collegiate level, and the court could gations of participants in recreational ly outside the range of the ordinary activ- have chosen to rely on them when defin- and sports activities. It most obviously ity involved in the sport” (emphasis ing the range of inherent risks and ac- effects a broadening of the assumption added). The Avila court might therefore ceptable conduct among the boys of of risk doctrine by diminishing the sig- have decided the Owls pitcher increased summer. nificance of both a defendant’s intent the inherent risk of injury to Avila and Rule 26 in Baseball Digest’s 1986 and the rules of the game. Secondarily, categorized his case as a question of sec- “The Book of Unwritten Baseball in raising the bar for sports-injury vic- ondary assumption of risk. Instead, Jus- Rules” says, “If one of your players gets tims, the decision somewhat simplifies tice Kathryn Mickle Werdegar, writing knocked down by a pitch, retaliate.” the job of the trial courts who in theory for a 6-1 majority, found it unnecessary Avila’s majority dwelt on similar pro- will find it easier to dismiss such cases. to inquire into the pitcher’s intentions. nouncements by various luminaries of Trial court judges nevertheless remain The court acknowledged Knight’s lan- the game, including one-time Oakland stuck with the unenviable task of apply- guage regarding intentional conduct, but Athletics manager Tony La Russa, for- ing the doctrine to particular circum- reformulated its view: “[A]n athlete does mer Dodgers pitcher Don Drysdale and stances to determine whether defen- not assume the risk of a co-participant’s New York Giants pitcher Sal “The Bar- dants’ conduct falls sufficiently outside intentional or reckless conduct when it is ber” Maglie, all of whom referred to the the ordinary activity involved in the ‘totally outside the range of the ordinary tactical importance of “brushback pitch- sport. activity involved in the sport.’” The court es,” “bean balls” and “chin music.” For those who believe a robust tort determined that “for better or worse, be- Viewing baseball’s rules in this context, system ultimately encourages safer ing intentionally thrown at is a funda- the majority reasoned that even if the practices and products, Avila arguably mental part and inherent risk of the sport pitcher may be subject to internal sanc- reduces the pressure on athletic organi- of baseball,” so even if the Owls pitcher tions, imposition of legal liability zations either to make and enforce intentionally aimed his pitch at Avila, his “might well alter fundamentally the na- safety-promoting rules or to introduce deed still fell within the range of ordinary ture of the sport by deterring partici- safety-oriented equipment. The deci- activity involved in the game. pants from vigorously engaging in ac- sion also begs the question whether certain sports might become more dan- lustrates the point. Post-Avila, Zi- of the activity or somehow chill vigor- gerous over time as the result of a grad- dane’s eruption would likely qualify as ous participation.
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