A California state appeals court has affirmed a lower court’s ruling that absolved Nike of any liability in a case where a baseball player was beaned with a baseball and subsequently sued the sporting goods manufacturer (Nike) and the retailer that sold the helmet.
On September 12, 2004, Justin Fuss-McCullough and his stepfather purchased a Nike baseball helmet at a Big 5 Sporting Goods store. Less than three hours later, then-13 Justin used that helmet at a baseball game. In his first at bat, he was struck by a pitch. Justin took a few steps toward first base, and then stopped, realizing that he was bleeding from his forehead.
Justin and his parents, the plaintiffs, sued, alleging negligence, strict liability, and breach of warranty causes of action. The plaintiffs further alleged that as a result of the incident, Justin suffered “severe and permanent” injuries.
The plaintiffs testified that, as a result of the incident, the following occurred:” (1) Justin suffered from headaches and had difficulty concentrating in school and in general; (2) Justin was teased about his stitches and scar on his forehead; (3) Justin was more ‘timid’ when he played baseball; (4) although he played football after the incident, Justin ‘mostly’ played as a kicker; and (5) Justin was forced to repeat seventh grade because he missed classes after the incident.”
The defendants countered that “(1) four days after the incident Justin denied to his family doctor that he suffered from dizziness, nausea, or headaches ; (2) after the incident Justin played football as a lineman; (3) Justin did not report any problems relating to the incident to his family doctor during an examination in August 2006 to clear him to play football; (4) as a freshman in high school, Justin played for the varsity baseball team and as a sophomore he had a batting average of 402; and (5) there was no academic or disciplinary reason for Justin to repeat the seventh grade, and the only other two students who repeated the seventh grade in his school were also baseball players.”
The case ultimately went to trial.
Jesa Kreiner, Ph.D., testified as the plaintiffs’ expert witness “did not contend that a baseball helmet could be designed to prevent all head injuries. Rather, he conceded that the purpose of a helmet is to protect against the most serious injuries.”
The defendants called Dr. Lam as an expert witness, who opined that it was “unlikely” that the helmet Justin was wearing when he was hit by a baseball on September 12, 2004, was fractured or cracked by the impact of the baseball; (2) if the helmet was fractured or cracked, it did not cause a laceration on Justin’s forehead; and (3) the helmet presented into evidence was ‘unlikely’ to be the helmet Justin was wearing when the incident occurred.”
After all was said and done, the jury found that while “the helmet’s design was a substantial factor in causing harm to Justin, … the risks of the helmet’s design did not outweigh the benefits of the design.”
The plaintiffs appealed on multiple grounds. Among them: “the trial court erroneously failed to instruct the jury regarding the consumer expectations test. Second, they contend that the trial court erroneously allowed Dr. Lam, a non-designated expert witness, to testify. Third, they contend that the trial court erroneously allowed the defendants to withdraw their requests for admission. Fourth, the plaintiffs argue that the trial court erroneously gave the jury defendants’ special jury instructions 1, 2 and 3. Fifth, the plaintiffs contend that the trial court committed reversible error in the manner in which it answered the jury question relating to the definition of the product. Sixth, the plaintiffs contend that the trial court erroneously allowed the jury to make a risk-benefit analysis when the defendants allegedly provided no risk-benefit testimony. Seventh, they argue that the court abused its discretion by not issuing monetary sanctions and disqualifying defense counsel for being present at the plaintiffs’ mental examinations. Finally, the plaintiffs contend that the trial court erroneously allowed the defendants to conduct mental examinations of the plaintiffs and erroneously allowed defendants to add a medical witness.”
The appeals court sided with the defendants on the first point.
“Whether a baseball player should expect to receive a cut on his forehead after his helmet is fractured is beyond the common reason, experience, and understanding of ordinary consumers,” wrote the court. “The trial court thus correctly denied the use of the consumer expectations test for an alleged design defect. The risk-benefit test was appropriately used.”
The defendants won again on the question of whether the court should have excluded Dr. Lam’s testimony.
“Here, plaintiffs failed to show a miscarriage of justice,” it held. “Indeed, the jury apparently rejected Dr. Lam’s testimony because it found that the design of the Nike helmet was a substantial factor in causing harm to Justin. Accordingly, even assuming the trial court’s decision allowing Dr. Lam to testify was erroneous, such an error is not a reason to reverse the judgment.”
The most relevant remaining appeal centered on whether the court committed reversible error by giving the jury special jury instructions 1, 2 and 3.
“The defendants requested, and the trial court gave, the following special jury instructions: (1) ‘Being hit by a pitch is an inherent risk of baseball; (2) The dangers of being hit by a pitch are apparent and well known: being hit can result in serious injury or, on rare tragic occasions, death; and (3) A defendant owes no duty of care to eliminate the inherent risks in a particular sport voluntarily played by the plaintiff.”
The defendants suggested the instructions based mainly on Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148 (Avila). “In Avila, the plaintiff alleged that during a community college baseball game he was injured when he was hit by an intentional ‘beanball’ pitch thrown in retaliation for a previous hit batter or, at a minimum, was thrown negligently. The plaintiff sued the community college district for whom the pitcher was playing at the time the incident occurred.
“In determining whether the district owed the plaintiff a duty of care, our Supreme Court discussed at length the inherent risks of playing organized baseball. The court stated: ‘Being hit by a pitch is an inherent risk of baseball. The dangers of being hit by a pitch, often thrown at speeds approaching 100 miles per hour, are apparent and well known: being hit can result in serious injury or, on rare tragic occasions, death.’
“The court then took its analysis one step further by stating: ‘Being intentionally hit is likewise an inherent risk of the sport, so accepted by custom that a pitch intentionally thrown at a batter has its own terminology: brushback, beanball, chin music. In turn, those pitchers notorious for throwing at hitters are headhunters. Pitchers intentionally throw at batters to disrupt a batter’s timing or back him away from home plate, to retaliate after a teammate has been hit, or to punish a batter for having hit a home run.’
“The court thus concluded that the district did not owe a duty of care to the plaintiff. In reaching this holding, the court recognized that intentionally throwing at a batter is forbidden by the rules of baseball. (Avila, supra, 38 Cal.4th at p. 165.) However, the court stated: ‘It is one thing for an umpire to punish a pitcher who hits a batter by ejecting him from the game, or for a league to suspend the pitcher; it is quite another for tort law to chill any pitcher from throwing inside, i.e., close to the batter’s body–a permissible and essential part of the sport–for fear of a suit over an errant pitch. For better or worse, being intentionally thrown at is a fundamental part and inherent risk of the sport of baseball. It is not the function of tort law to police such conduct.’”
In light of the Supreme Court’s statements regarding the inherent risks of baseball and the limitations of tort law to impose liability on participants playing the game, the appeals court found that “the special jury instructions in this case were correct statements of the law. Further, the trial court could reasonably conclude that these jury instructions were helpful because all of the members of the jury might not have been familiar with baseball or the limitations on defendants’ duty towards plaintiffs.
“Moreover, in reviewing plaintiffs’ claims of instructional error, ‘we must not only determine whether the trial court committed error, but whether the error resulted in a miscarriage of justice.’ (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1094; accord Soule, supra, 8 Cal.4th at pp. 573-574.) Although plaintiffs argued in their brief that the jury instructions were ‘totally confusing to the jury as to what they were to be comparing,’ they did not explain how or why the jury would be confused. Plaintiffs therefore failed to meet their burden of showing a miscarriage of justice.”
Justin Fuss-Mccullough et al. v. Nike, INC., et al.; Ct. App. Calif., 2d App. Dist., Div 3;B210930, 2010 Cal. App. Unpub. LEXIS 4882; 6/28/10
Attorneys of Record: (for plaintiffs and appellants) Law Offices of Baker & Oring and John M. Inferrera. (for defendants and respondents) K&L Gates, Fred D. Heather and Michael J. Heyman.
