The Supreme Court of Iowa has overturned the rulings of a trial court and an appeals court, remanding for further consideration a softball player’s personal injury claim against a co-participant, who released his bat on a pitched ball, striking the plaintiff in the head.
In so ruling, the court found generally that the incident was not an inherent part of the game and thus a standard of recklessness applied with regard to whether a defendant was liable.
Benjamin Feld and Luke Borkowski were teammates on an intramural slow-pitch softball team, composed primarily of male high school students. Feld and Borkowski were experienced players, having played various levels of the game throughout their childhoods. The team assembled to play games against other teams and to practice among themselves. Practice primarily consisted of batting practice, which allowed each player the opportunity to swing at approximately twenty pitches before the next player rotated into the batter’s position. The team members who were not batting or pitching played various field positions, except catcher, and attempted to catch or retrieve the balls.
During a batting practice on June 2, 2005, Feld was playing first base while Borkowski batted. Home plate and first base were 60 feet apart, the customary arrangement in slow-pitch softball. Borkowski, a right-handed hitter, swung at pitch after pitch using an aluminum bat. He was known as a strong hitter. After about a dozen pitches, Borkowski hit a high fly ball into foul territory on the third base side of the field. A split second after the bat made contact with the ball, it left Borkowski’s hands. Most of the team watched the fly ball sail over the head of the third baseman as the bat, almost simultaneously, flew directly down the first baseline, in a horizontal helicopter motion, toward Feld. Borkowski yelled Feld’s nickname in an effort to warn him of the flying bat. The warning was ineffective, and the bat struck Feld in the forehead. Feld suffered a severe injury to his left eye.
Feld and his parents sued Borkowski for negligence. The lawsuit sought damages for medical expenses and other associated damages. Borkowski asserted assumption of the risk as an affirmative defense. He also claimed softball was a contact sport, “and no liability could be imposed because his conduct was not reckless.” Following discovery, Borkowski moved for summary judgment “on the grounds liability was limited under the contact-sports exception and the facts of the incident failed to generate a jury question that his conduct was reckless.”
The Felds countered that “softball is not a contact sport, as a matter of law, and therefore did not qualify for the exception to the rule of negligence.” In the alternative, the Felds claimed “Borkowski’s actions in releasing the bat constituted reckless conduct. In support of this argument, the Felds presented expert testimony from Ed Servais, head baseball coach at Creighton University. Servais is an experienced college coach and a former baseball player. He testified he had never seen a right-handed batter hit a ball left of third base and lose control of a bat by releasing it in the direction of first base. Further, Servais testified the only way a right-handed batter could hit a first baseman with a bat in such a manner is if the batter ‘followed through and rotated around after striking the foul ball and deliberately threw the bat or let go of the bat in such a way that it was flung with considerable force through the air towards the first base position.’ Thus, the Felds claimed, even if the contact-sports exception to negligence applied, an issue of material fact existed as to whether Borkowski acted recklessly or intentionally in losing control of his bat.”
The trial court granted the motion for summary judgment, finding that softball “qualified as a contact sport because it is an ‘athletic activity which involves the general risk of physical injury to the participants,’ and liability could only be based on reckless or intentional conduct. The court concluded Borkowski’s actions were not outside the normal course of playing softball because any misconduct would have occurred while swinging at a pitch during softball practice. Although the court recognized Feld may not have accepted the risk of being struck by a bat at first base, it concluded the risks were not specific to the type of injury he received, but instead included all inherent dangers in the normal course of playing softball. The district court also found the contact-sports exception barred the claim against Borkowski because the Felds failed to allege in their petition that Borkowski’s conduct was reckless or deliberate.”
The decision was appealed. The appellate court affirmed, “concluding physical contact is generally inherent in the game of softball and there was no conclusive evidence of recklessness sufficient to present an issue of material fact for a fact finder.” The Felds appealed again.
The high court looked first at the Contact-Sports Exception.
“As a general rule, our law recognizes that every person owes a duty to exercise reasonable care to avoid causing injuries to others. Thompson v. Kaczinski,774 N.W.2d 829, 834 (Iowa 2009),” it wrote tipping its hand on the decision to come
It went on to draw a distinction between activity that is “inherent in a sport,” and triggers “a duty of care less stringent than reasonable care.
“In contrast, conduct by participants done with reckless disregard for the safety of others or with an intent to harm others beyond the rules and objectives of the sport creates risks that are not inherent in the sport.”
The court continued, noting that “in the sport of softball, the risk of injury to participants includes the risk of contact between a participant and a bat swung by a batter … . Batting and swinging a bat are normal and expected activities of the game, and participants familiar with the sport know and understand that a risk of harm is presented to other participants by the activity. In particular, a bat can be released from the hands of a batter during a swing. This scenario presents a risk of harm from injurious contact between the bat and other participants on or around the playing field.
“Nevertheless, the Felds argue that liability should not be limited to recklessness or intentional conduct by generally labeling a sport as a contact sport. Instead, they argue the particular contact involved in causing the injury in each case must be analyzed to determine if the specific incident involved contact that should have been anticipated. The Felds assert this analysis is consistent with the underlying assumption-of-the-risk premise of the contact-sports exception. Thus, they argue softball may be a contact sport for a player like a catcher, but not for an individual playing first base when a right-handed hitter hits a ball left of the third baseline. More specifically, the Felds argue no first baseman could have anticipated harm from a bat under the circumstances of the case.”
The high court agreed, at least in part, finding that a standard of recklessness applied.
It then turned to the testimony of an expert witness, long-time baseball coach Ed Servais, who found that the unique nature of the incident “led him to the conclusion that Borkowski must have deliberately released the bat in a very abnormal, contorted act of recklessness. Importantly, the affidavit of Servais supports a reasonable conclusion that Borkowski did not continue to swing the bat in a normal manner after he hit the ball. The rare abnormality of the bat’s flight pattern after the ball was struck at least supports an inference of recklessness. An act performed by a participant in a sport that produces a radically different result from the normal and expected result of the act, even when performed negligently, gives rise to an inference that the result was purposeful.”
Thus, the court reversed the judgment of the district court, and remanded the case for further proceedings.
Benjamin Feld et al. v. Luke Borkowski; S. Ct. Iowa; No. 07-1333.10/22/10
Attorneys of Record: (for appellants) Gregory J. Siemann of Green, Siemann & Greteman, P.L.C., Carroll, and Dan Connell of Dan Connell, P.C., Storm Lake. (for appellee) Joel T.S. Greer of Cartwright, Druker & Ryden, Marshalltown.
