A California state appeals court has affirmed a trial court’s decision that a plaintiff assumed the risk of injury when he participated in a radar gun station at a youth baseball fair and suffered a debilitating knee injury.
The court also found that the defendants did not increase the risk of injury as the plaintiff had alleged, since the plaintiff chose, on his own, to make the throws from an uneven surface.
The incident in question occurred on March 1, 2003 during a youth baseball fair, which was sponsored by the defendant La Costa Youth Organization and conducted at a park owned by defendant City of Carlsbad. That day, the grass on the park’s baseball fields was very wet from rain on the previous day. The defendant San Diego School of Baseball (SDSB) set up and operated a pitching exhibit at the fair, which measured the speed of a soft, or “squishy” baseball thrown at a radar gun held by an SDSB member. In front of the exhibit, the ground was flat for approximately 15 feet, and then it began sloping upward toward the parking lot.
The plaintiff, Dr. Jonathon Rivkin, chose to stand approximately 30 to 35 feet from the fence, where the property sloped upward, because “that’s the pitching distance that the kids use.” Rivkin was wearing tennis shoes, not baseball cleats. After a warmup throw, he tried to throw a pitch full-speed. He suffered a major knee injury that required knee replacement surgery.
Dr. Rivkin and his spouse sued SDSB and LCYO for negligence and the City for dangerous condition of public property. The defendants moved separately for summary judgment, arguing the action is barred by the primary assumption of risk doctrine. The court granted the motions and entered judgment for the defendants on February 3, 2005. Rivkin appealed.
In its analysis, the court leaned heavily on the primary assumption of risk doctrine, even though the plaintiffs argued on appeal that pitching a ball to a radar gun “is not a sport or recreational activity, and thus it is not included within” the doctrine. The court wrote that “the Rivkin’s cite no legal authority suggesting that pitching a ball to a radar gun is distinguishable from practicing for or playing a game of baseball, insofar as the primary assumption of risk doctrine is concerned. Moreover, the cases they do cite are inapplicable.”
It then turned to one of the plaintiff’s chief arguments that the defendants could have made the station safer by allowing participants to pitch from flat ground, noting that the plaintiff’s own diagram showed approximately 15 feet of flat ground in front of the target. “Dr. Rivkin, however, opted to pitch from a slope,” wrote the court.
“Further, the type of liability the Rivkins seek to impose on the organizer of a baseball event would have a chilling effect on the sport. As the trial court found, ‘imposing liability in a case like this one on pitching booth operators, “fair” organizers, or landowners would require [them] to ensure perfect weather and soil conditions. That is, no activity could take place if there were mist in the air or dew on the ground or where there was any adverse weather or soil condition on which a party might slip while pitching. A park owner would have to close the park in any adverse weather condition, to ensure that no one throwing a ball slips if the grass is wet. An exhibit organizer or booth operator would have to ensure that there were no wet soil or grass, gravel, rocks, leaves or any other sort of condition on which a pitcher could slip or trip.’ We agree that slipping on wet, uneven ground cannot be eliminated from the sport of baseball without having a serious deleterious effect.”
Jonathan Rivkin et al. v. City of Carlsbad et al.; Ct. App. Calif., 4th App. Dist., Div. 1; D046319, 2006 Cal. App. Unpub. LEXIS 8187; 9/18/06
