Iowa Supreme Court Weighs the Role of ‘Custom’ in Premises Liability Case Involving Foul Ball

Aug 18, 2017

The Supreme Court of Iowa has reversed, in part, the finding of a jury that a high school was liable for an injury that occurred when a foul ball struck a baseball player, who was standing in the dugout.
While concluding that the high school “owed a duty of care to the player and substantial evidence supports the jury verdict,” it also found that “the district court abused its discretion in not allowing the high school to present evidence of custom (and that it) erred when it failed to instruct the jury on the player’s failure to maintain a proper lookout.” Thus, it remanded the case to the district court for a new trial.
Plaintiff Spencer Ludman graduated from Muscatine High School in May 2011. That summer, he was a member of the school’s baseball team. On July 7, 2011, Ludman traveled with his team to play a baseball game against Davenport Assumption High School (DAHS).
The visiting team’s dugout was located on the first-base side of the field, 30 feet from the first-base foul line. The visitor’s dugout was 35 feet and five inches long, seven feet wide, and two steps below the playing field. There was a fence in front of the majority of the visitor’s dugout, 25 and a half feet in length, extending from the ground to the ceiling of the dugout. At each end of the visitor’s dugout, there was a five-foot-wide opening in the fence to allow players access between the field and the dugout. There was a bench in the visitor’s dugout positioned behind the fence, and it had two levels on which the players could sit.
At the top of the fifth inning, Muscatine was batting and Ludman was in the visitor’s dugout with his teammates and coaches. There were two outs, and the current batter had two strikes. Ludman was due to bat after the current batter and the batter on deck. As it became unlikely he would bat that inning, Ludman grabbed his glove and hat in preparation to retake the field. After retrieving his glove and hat, he turned to watch the game and found room to stand in the south opening of the dugout, farthest from home plate.
Ludman watched the pitcher throw the ball to the batter. He heard the bat hit the ball and was looking to see where the ball went. He saw the ball in his peripheral vision before the line-drive foul ball entered the south opening of the dugout and struck him in the head. Assumption’s coach saw Ludman react and try to defend himself from the ball. However, witnesses described the time from the moment the ball hit the bat until it hit Ludman as a split second.
The line-drive foul ball fractured Ludman’s skull. An ambulance took him to Genesis Medical Center in Davenport, and thereafter, a helicopter transported him to the University of Iowa Hospitals and Clinics (UIHC) for treatment. Ludman’s hospitalization at the UIHC lasted for 12 days before he was able to go home. After his discharge, Ludman received speech therapy, motor skills therapy, and treatment for depression and anxiety. In March 2012, he began having seizures, requiring anti-seizure medication. He also continued to deal with post-traumatic stress symptoms, depression, and behavioral issues.
On April 5, 2013, Ludman filed a premises liability action against DAHS, alleging negligence,
a) In building, maintaining, and using a baseball facility for high school baseball games, which failed to conform to accepted standards of protection for players;
b) In failing to erect a protective fence/screen between home plate and the dugout where players were expected to emerge from the dugout in preparation for going to bat; and
c) Knowing the visitor’s dugout was extremely close to home plate, failing to take reasonable steps to prevent foul balls from entering the dugout at high speed and causing injury.
DAHS denied the claims of negligence in its answer to the petition and asserted several affirmative defenses, including the contact-sports exception to negligence, assumption of the risk, the plaintiff’s negligence, and comparative fault pursuant to Iowa Code chapter 668. Thereafter, DAHS filed a motion for summary judgment, alleging the contact-sports exception applied; and thus, it owed no duty to Ludman because getting hit by a foul ball is inherent in the sport of baseball and he assumed the risk of getting hit by a foul ball. The court denied the motion for summary judgment.
Shortly before trial, DAHS filed a second motion for summary judgment, arguing that it was entitled to summary judgment under the inherent-risk doctrine and on the basis that there are no accepted standards for high school baseball dugouts. Again, the motion was denied.
On June 22, 2015, a jury trial commenced. On June 30, 2015, the jury returned a verdict in favor of Ludman. DAHS appealed.
While “taking into consideration all reasonable inferences that a jury could fairly make, Ludman presented sufficient evidence to give rise to his negligence claim against (DAHS),” wrote the court.
Next the court addressed whether the district court erred in barring DAHS from presenting evidence concerning the custom and standard practice in the design and construction of dugouts at schools throughout the Mississippi Athletic Conference.
After examining case law and the expert testimony that was presented, the court found that “the testimony was sufficient for the jury to consider if (DAHS) was not negligent due to the custom of the community.
“Evidence of custom is not conclusive on (DAHS’s) lack of negligence. See Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 385, 101 N.W.2d 167, 173 (1960). It is still up to the jury to weigh the evidence of custom against the other evidence in the record and ultimately determine the issue of negligence based on the facts and circumstances of the case,” wrote the high court. “Accordingly, we find the district court abused its discretion by not allowing the evidence of custom.”
Next, the Supreme Court considered whether the district court “should have permitted a jury instruction on proper lookout ‘as there was competent evidence at trial that Ludman voluntarily placed himself in an unprotected area of the dugout and then failed to watch as the batter swung and struck the ball that subsequently hit him.’ We measure whether a person maintains a proper lookout by what an ordinarily reasonable and prudent person would do under the same or similar circumstances. Coker v. Abell-Howe Co., 491 N.W.2d 143, 150 (Iowa 1992).”
On this point, the high court found that Ludman was at least partly responsible, noting that “a reasonable person could find he failed to follow the ball from the pitcher to the batter’s bat and therefore, failed to maintain a proper lookout. Under the law of proper lookout, a jury could have decided Ludman was not ‘being watchful of the movements of one’s self in relation to the things seen’ by failing to follow the ball, and that constituted negligence. See Coker, 491 N.W.2d at 150. We also cannot say the court’s failure to give this instruction did not prejudice (DAHS). Accordingly, based on Ludman’s testimony regarding his lookout, it was error for the court not to instruct the jury on proper lookout.”
Spencer James Ludman v. Davenport Assumption High School; S. Ct. Iowa; No. 15-1191, 895 N.W.2d 902; 2017 Iowa Sup. LEXIS 61; 6/2/17
Attorneys or Record: (for appellant/cross-appellee) Thomas M. Boes of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines. (for appellee/cross-appellant) Steven J. Crowley and Edward Prill of Crowley, Bünger & Prill, Burlington.


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