Defendant Taking Practice Swings Protected by Assumption of Risk

Aug 18, 2006

A California state appeals court has held that a trial court ruled appropriately when it found that a defendant softball player taking a practice swing was protected by the assumption of risk doctrine when her swing injured another player, the plaintiff.
The incident leading to the litigation occurred on March 26, 2003 during a softball game when the defendant Devin Porter was taking practice batting swings in the on-deck area. She accidentally struck plaintiff Kaylee Grisham in the face with the bat, dislodging a tooth and damaging others.
Grisham sued for negligence. One of the plaintiff’s central arguments, which was corroborated by a testifying expert, was that “taking practice swings in the near proximity of the dugout violated a fundamental rule of baseball and created a risk that was not inherent in that sport.” Nevertheless, the trial court granted summary judgment, citing the doctrine of primary assumption of the risk. Grisham appealed.
In its analysis, the appeals court noted that the fundamental inquiry in the instant case “is whether defendant’s actions in allegedly taking practice swings too close to the Lakewood High dugout increased the risk above that inherent in the game of softball.”
It further added that one consideration in whether to apply the assumption of risk doctrine is determining whether application of the doctrine “chill vigorous participation” in the sport.
In softball, taking practice swings prior to stepping up to the plate falls under the heading of “vigorous participation,” according to the appeals court.
“The imposition of a duty of care under these circumstances could … alter the nature of the sport of softball and baseball,” wrote the court. “If on deck batters are held liable for careless conduct while warming up, the warm-ups of pitchers and other fielders might be vulnerable if mere carelessness (as distinguished from recklessness) in the performance of those time-honored routines could subject participants to liability. The risk of a participant in a baseball or softball game being struck by a bat, released or not (see Napoli v. Alvernia (N.Y. 1997) 239 A.D.2d 325, 657 N.Y.S.2d 197 [danger of person swinging bat on sideline warming up for a child’s softball game was a risk inherent in the game of softball that the child assumed]), or a ball is one that is inherent in those games. A player in a dugout, depending on the nature of the dugout and the position of the player, is not immune from risks of bats and balls. (See Higgins v. Pfeiffer (Mich. 1996) 215 Mich. App. 423, 546 N.W.2d 645; Hernandez v. Castle Hill Little League (1998) 256 A.D.2d 241, 682 N.Y.S.2d 191.)”
The appeals court next turned to whether the defendant’s conduct was “so reckless as to be totally outside the range of ordinary activity involved in the sport.” Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696
“The conduct at issue here was not ‘totally outside’ the range of ordinary activity involved in softball,” wrote the appeals court. “First, although there is a conflict in the evidence, it is undisputed that defendant believed she was standing in the area where the on-deck circle was normally located, and her coach agreed with her. Also, defendant testified that she cleared the area before her first practice swing (although she also admitted that she did not clear the area before each of her subsequent swings). Moreover, defendant took three practice swings in a row, apparently without incident. And, when she was allegedly warned to ‘scoot up,’ she took two steps towards the third baseline, i.e., away from the dugout, in an apparent attempt to mitigate the risk. Her conduct, at most, suggests carelessness, but it did not rise to the level of conduct that was totally outside the range of activity ordinarily associated with softball.”
Kaylee Grisham v. Devin Porter, et al.; Ct. App. Calif., 2d App.Dist., Div 5; B182432; 2006 Cal. App. Unpub. LEXIS 4415; 5/22/06
Attorneys of Record: (for plaintiff) Pierce & Pierce, LLP, B. Gene Pierce, Jr. (for defendant) Horvitz & Levy, LLP, Barry R. Levy, Patricia Lofton; Early, Maslach & Rudnicki, James Grafton Randall and Terry L. Gimenez.


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