High Court: Baseball Player Assumed Risk of Being Intentionally Hit with Pitch

May 5, 2006

In a majority opinion, the Supreme Court of California has found that a community college district was not liable for the injuries suffered by a student-athlete of a visiting team, who was beaned by one of the community college district’s pitchers during a baseball game. Significantly, the high court found that the plaintiff assumed the risk of being intentionally hit by an opposing pitcher.
The incident occurred on January 5, 2001 in a game between the Rio Hondo Community College and Citrus Community College. What sparked the incident was a Rio Hondo pitcher hitting a Citrus batter with a pitch the previous inning. When Rio Hondo’s Jose Luis Avila came up to bat the top half of the next inning, he was hit in the head with a pitch, cracking his batting helmet. While Avila did take first base, shortly thereafter he left the game, later claiming to have suffered serious injuries.
Avila sued both schools, his manager, the helmet manufacturer and various other entities and organizations. The Supreme Court addressed only the claim against Citrus, which the plaintiff charged was “negligent in failing to supervise and control the Citrus College pitcher.”
Two of the most relevant considerations by the high court was whether Citrus had governmental immunity as spelled out by California state law in Section 831.7 Immunity and whether the school district breached a duty of care.
Regarding immunity, the court concluded that that Citrus is not protected by the statute, which shields the government when an individual is participating in what can be deemed a “hazardous recreational activity.” It wrote that “(S)chool sports in general, and organized intercollegiate games in particular, are not ‘recreational’ within the meaning of the statute.”
Turning to the second consideration, Avila’s complaint alleged four ways in which the District breached a duty to Avila: by (1) conducting the game at all; (2) failing to control the Citrus College pitcher; (3) failing to provide umpires to supervise and control the game; and (4) failing to provide medical care.
After quickly dispatching with the first allegation, the court turned to the second, and concluded that being hit by a baseball is an inherent risk of the game.
“Being intentionally hit is … 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. (See, e.g., Kahn, The Head Game (2000) pp. 205-239.)
“Some of the most respected baseball managers and pitchers have openly discussed the fundamental place throwing at batters has in their sport.” The court cited as an example: George Will’s study of the game, Men at Work, where one-time Oakland Athletics and current St. Louis Cardinals manager Tony La Russa details the strategic importance of ordering selective intentional throwing at opposing batters, principally to retaliate for one’s own players being hit. (Will, Men at Work (1990) pp. 61-64.)
While that example and others relate principally to professional baseball, the court noted that “‘[t]here is nothing legally significant . . . about the level of play’ in this case. (West v. Sundown Little League of Stockton, Inc. (2002) 96 Cal.App.4th 351, 359-360; see
Balthazor v. Little League Baseball, Inc., supra, 62 Cal.App.4th at
pp. 51-52; Mann v. Nutrilite, Inc., supra, 136 Cal.App.2d at p. 734.) The laws of physics that make a thrown baseball dangerous and the strategic benefits that arise from disrupting a batter’s timing is only
minimally dependent on the skill level of the participants, and we see no reason to distinguish between collegiate and professional baseball in applying primary assumption of the risk.”
Intentionally Throwing at Batter Violates MLB and NCAA Rules, But …
“It is true that intentionally throwing at a batter is forbidden by the rules of baseball. (See, e.g., Off. Rules of Major League Baseball, rule 8.02(d); National Collegiate Athletic Assn., 2006 NCAA Baseball Rules (Dec. 2005) rule 5, § 16(d), p. 62.) But ‘even when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.’ (Knight, supra, 3 Cal.4th at pp. 318-319.)
“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.
“Here, even if the Citrus College pitcher intentionally threw at Avila, his conduct did not fall outside the range of ordinary activity involved in the sport. The District owed no duty to Avila to prevent the Citrus College pitcher from hitting batters, even intentionally. Consequently, the doctrine of primary assumption of the risk bars any claim predicated on the allegation that the Citrus College pitcher negligently or intentionally threw at Avila.”
The court turned to the third alleged breach of duty that failing to provide umpires heightened the inherent risks of the game.
“Baseball may be played with umpires, as between professionals at the World Series, or without, as between children in the sandlot,” wrote the court. “Avila argues that providing umpires would have made the game safer, because an umpire might have issued a warning and threatened ejections after the first batter was hit. Whatever the likelihood of this happening and the difficulty of showing causation, the argument overlooks a key point. The District owed “a duty not to increase the risks inherent in the sport, not a duty to decrease the risks.”
(Balthazor v. Little League Baseball, Inc., supra, 62 Cal.App.4th at p. 52; accord, West v. Sundown Little League of Stockton, Inc., supra, 96 Cal.App.4th at p. 359.) While the provision of umpires might—might—have reduced the risk of a retaliatory beanball, Avila has alleged no facts supporting imposition of a duty on the District to reduce that risk.”
In addressing the fourth and final alleged breach, the court noted that Avila first contacted his own managers about his medical condition after being hit by a pitch, and that they were slow to seek medical help. It finally took a Citrus College player, standing at second base, to recognize the severity of the injury and convince Avila’s own team to take him out of the game.
Jose Luis Avila v. Citrus Community College District; S.Ct. Calif.; S119575; 4/6/06
Attorneys of Record: (for defendant) Gibeaut, Mahan & Brisco, Gary Robert Gibeaut, John W. Allen and Lisa J. Brown.


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