By Jarett L. Warner
A minor league professional baseball player in the Baltimore Orioles’ organization has commenced a lawsuit after being struck in the head during a baseball game.
On April 5, 2008, Jordan Wolf was a catcher for the Delmarva Shorebirds, a minor league affiliate of the Orioles. He claims that while batting during a game at Perdue Stadium in Maryland and wearing a helmet manufactured by Rawlings, he was struck in the helmet by a baseball pitched in excess of 60 mph. As a result, he alleges that he sustained serious personal injuries, including a skull fracture, seizures and other neurological injuries which have prematurely ended his professional baseball career and caused him to be permanently disabled.
As a result of the alleged accident, a lawsuit has been filed on behalf of the plaintiff in the United States District Court Southern District of New York against, among others, the purported helmet manufacturer, Rawlings Sporting Goods Company, Inc. (Rawlings), Office of the Commissioner of Baseball, Major League Baseball, Minor League Baseball, the Baltimore Orioles and the Delmarva Shorebirds (the baseball entities). The plaintiff asserts causes of action sounding in:
1. strict products liability, asserting that Rawlings designed and manufactured the subject defective helmet and that the baseball entities marketed, distributed and placed it into the stream of commerce.
2. negligence, claiming that the defendants knew or in the exercise of reasonable care should have known that the subject helmet would not provide reasonable protection to players exposed to pitches in excess of 90 mph.
3. breach of warranty, stating that the defendants breached their warranties that the subject helmet was fit for the ordinary purposes for which such products are used in professional baseball and was of merchantable quality.
4. assumption of duty against the baseball entities, alleging that they assumed the duty to provide the most current and safest helmets available by requiring that their players wear helmets for safety and providing athletic equipment to their players and breaching a duty by failing to provide helmets to protect their players from pitches thrown in excess of 60 mph.
5. breach of fiduciary duty against the baseball entities, claiming that they failed to provide the most current and protective batting helmets.
6. breach of duty to a third-party beneficiary against Rawlings, asserting that Rawlings breached its agreement with Major League Baseball to provide professional players with the most current and protective batting helmets available.
The plaintiff seeks an unspecified amount of compensatory and punitive damages.
Most of the defendants recently interposed their responsive answers to the amended complaint. The litigation is in the early stages of discovery. Rawlings admitted that it entered into a license agreement with Major League Baseball Properties, Inc. and that in 1992 it started manufacturing the MPH helmet, which is rated to protect against 90 mph pitches. Major League Baseball also admitted that Major League Baseball Properties, Inc. and Rawlings were parties to a license agreement.
An interesting issue that is likely to arise in this case is whether the Court will find that the plaintiff, a professional athlete, assumed the risk of injury. There is New York case law on this subject to support such a defense.
For example, in Maddox v. City of New York, 66 N.Y.2d 270, 496 N.Y.S.2d 726 (1985), New York’s highest court, the Court of Appeals, held that the plaintiff, a professional baseball player, assumed the known and obvious risk of injury associated with playing on a wet and muddy baseball field. The Court stated that:
There is no question that the doctrine [assumption of risk] requires not only knowledge of the injury-causing defect but also appreciation of the resultant risk (citations omitted), but awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background, of the skill and experience of the particular plaintiff . . . It is not necessary to the application of assumption of risk that the injured plaintiff has foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results.
496 N.Y.S.2d at 729-730.
In Ziegelmeyer v. United States Olympic Committee, 28 A.D.3d 1019, 813 N.Y.S.2d 817 (3rd Dep’t 2006), the plaintiff, a two-time Olympic medal winner speed skater, fell on the ice at a rink in Lake Placid and sustained personal injuries when she hit the fiberglass boards surrounding the rink. She claimed that the defendants were liable for failing to install pads correctly in accordance with applicable international standards. The Appellate Division Court held that the plaintiff assumed the risk of injury and stated that:
An athlete who voluntarily participates in a sport “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” . . . [t]he “duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” . . . not necessary that the injured plaintiff foresee the exact manner in which . . . her injury occurred . . . “a higher degree of awareness will be imputed to a professional than to one with less than professional experience in the particular sport.” In an effort to avoid application of the assumption of risk doctrine, plaintiff relies on the principle that a damaged or dangerous safety feature is not an inherent risk of a sport . . . [t]his record does not establish that the pads were either damaged or defective . . . we cannot say that the subject pads were defective or dangerous such that plaintiff’s accident was anything other than an inherent risk of her sport.
28 A.D.3d at 1019-1020, 813 N.Y.S.2d at 819 (citations omitted).
However, in Radwaner v. USTA Nat’l Tennis Center, Inc., 189 A.D.2d 605, 592 N.Y.S.2d 307 (1st Dep’t 1993), a New York Appellate Division court sided with the athlete. There, the court held that there was a question of fact whether the plaintiff, who was engaged in a tennis match at the USTA Flushing Meadows Center, assumed the risk of injury. His foot became entangled in a net that divided the tennis courts. The court held that a dragging divider net was not the sort of hazard which tennis players were normally exposed.
Although it did not involve a professional athlete, in Wattenbarger v. Cincinnati Reds, Inc., 28 Ca. App. 4th 746, 33 Cal. Rptr. 2d 732 (3rd Dist. 1994), a 17-year-old baseball player sued the Cincinnati Reds and one of its supervisors of scouting, when he injured his arm during an open tryout. The California Appellate Court held that an arm injury such as the one suffered by the plaintiff in Wattenbarger was a risk inherent in the sport of baseball; however, there was a question of fact precluding the award of summary judgment to the defendants since, disputably, the defendants permitted or directed the plaintiff to continue pitching after he notified them that his arm had “popped.” The Court stated that since the defendants controlled the tryout, they “owed a duty to plaintiff and the other participants not to increase the risks inherent in the game of baseball . . . they owed a duty not to supply faulty equipment such as batting helmets or catching gear.” 28 Ca. App. 4th at 755, 33 Cal. Rptr. 2d at 738. The Court held that the defendants’ summary judgment motion should be denied and the case remanded to the trial court.
The liability of the defendants in this action, particularly with regard to the baseball entities, may hinge on whether the Court finds that the risk presented to the plaintiff was inherent in the sport of baseball. However, if the plaintiff can demonstrate that the batting helmet provided to him was defective, that the inherent risks presented to him were somehow increased and that the risk presented was beyond the inherent risks of the sport, this could subject the defendants to liability. This would be unfavorable precedent for professional sporting leagues and affiliates, as well as sporting equipment manufacturers and distributors. It could support further claims by professional athletes who have sustained injuries due to purportedly dangerous equipment. One recent example could be David Wright, the New York Mets’ third baseman, who was hit in the helmet during a game against the San Francisco Giants in August 2009 and sustained post-concussion symptoms.
Jordan Wolf v. Rawlings Sporting Goods Co., Inc., et. al. (S.D.N.Y. No. 10-cv-3713).
Jarett Warner is counsel to Havkins Rosenfeld Ritzert & Varriale, LLP in New York, New York. He can be reached at (646) 747-5104 or by e-mail at Jarett.Warner@hrrvlaw.com
