Plaintiff Assumed Risk of Errant Throw in Warm-Up Drill

May 5, 2006

A Washington state appeals court has affirmed a district court’s ruling dismissing the claim of a spectator, who was hit by a baseball that was accidentally thrown into the stands as two professional baseball teams were warming up for a game.
The panel of judges, specifically, concluded that the plaintiff was very much aware of the risk and that the defendants could not be held liable.
The incident leading to the litigation occurred on July 23, 2000, when Delinda Middleton Taylor attended a Seattle Mariners baseball game at Safeco Field with her family. With their seats four rows up from the right field foul line, the plaintiff made sure that she and her family got their in plenty of time to see the players warm up and to get their autographs.
The plaintiff noticed on the way to her seat that two of the players, one of them a pitcher, were throwing the ball back and forth in the outfield. As the plaintiff looked away, an errant thrown struck her in the face, causing serious injuries.
Taylor sued the Seattle Mariners as well as the players, claiming that they were liable for the allegedly negligent warm-up throw.
The Mariners moved for summary judgment, claiming that (1) their duty to protect spectators from balls entering the stands was satisfied by providing a protective screen behind home plate, and that (2) Taylor was familiar with baseball and the inherent risk of balls entering the stands, and therefore assumed the risk of her injury.
The Mariners’ assumption of risk defense was predicated on the fact that Taylor had been to a Mariners game before and “knew professional ballplayers do not always catch the ball and that the ball could leave the field during a game.” In addition, her son had played baseball for six years – “She went to almost all of their games, during which she saw balls enter the stands.” They also claimed that the warm-up drill, “long toss,” was “customary to the sport and followed at every baseball level, from Little League to the Major Leagues.”
Taylor countered that she “did not know how players warmed up and never thought about the possibility of a ball entering the stands and hurting someone during a warm-up.”
The trial court granted the Mariners’ motion and dismissed Taylor’s claims, spawning the appeal.
The panel of judges recounted case law, both national and in Washington, which held that teams had a duty to screen some seats and not others. Furthermore, spectators assume the risk, while sitting in the unscreened portion.
“Under this implied primary assumption of risk, the defendant must show that plaintiff had full subjective understanding of the specific risk, both its nature and presence, and that he or she voluntarily chose to encounter the risk. Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 523, 984 P.2d 448 (1999) (citing Kirk v. Washington State Univ., 109 Wn.2d 448, 453, 746 P.2d 285 (1987).
The questions presented here are as follows: (1) did the warm-up activities occur outside of the sporting event for which Taylor impliedly assumed the risks inherent in baseball; (2) is it unusual for a ball to enter the stands due to an errant throw; and (3) was the errant throw foreseeable and avoidable by Taylor, given her familiarity with the game?
“First, Taylor fails to articulate any cognizable reason for us to find that the warm-up portion of the event is not encompassed within the spectator’s implied primary assumption of risk. No Washington case explicitly states that warm-ups are a necessary and inherent part of the sports event. However, it is undisputed that the warm-up is part of the sport, that spectators such as Taylor purposely attend that portion of the event, and that the Mariners permit ticket-holders to view the warm-up.”
Turning to the second question, the court wrote that “it is undisputed that it is the normal, every-day practice at all levels of baseball for pitchers to warm up in the manner that led to this incident. The risk of injuries, such as Taylor’s, are within the normal comprehension of a spectator who is familiar with the game. Indeed, the possibility of an errant ball entering the stands is part of the game’s attraction for many spectators.
Addressing the third question, the court wrote that the record “contains substantial evidence regarding Taylor’s familiarity with the game” for the aforementioned reasons above.
Thus, the court affirmed the trial court’s decision.
Delinda Missleton Taylor v. The Baseball Club of Seattle, L.P., et al.; Ct. App. Wash. Div. 1; No. 55803-0-I; 2006 Wash. App. LEXIS 261; 2/27/06
Attorneys of Record: (For Appellant(s)) Bradford James Fulton, Carter & Fulton PS, Everett, WA. (For Respondent(s)) Thomas Charles Stratton, Eklund Rockey Stratton PS, Seattle, WA.


Articles in Current Issue