A Wisconsin state appeals court has affirmed a trial court’s ruling that a school district and several individual defendants were shielded by governmental immunity laws from a claim brought by a high school student who suffered a concussion in a recreational league baseball game and subsequently sued the defendants for negligence.
Plaintiff Dane Radebaugh was injured when he was struck in the head by a line-drive foul ball during a game played on June 14, 2011. The 14-year-old Radebaugh was participating in a “Teener” recreational baseball game as part of a program offered by the Lake Mills School District.
During the game, Terry Yandre coached Radebaugh’s team, while Travis Meyers and Roger Burrow were umpires. All three men, who were individual defendants, had “observed, played, coached, and/or umpired baseball games at Campus Field for many years,” according to the court.
Campus Field has two recessed concrete dugouts—one parallel to the first base line and one parallel to the third base line. This case concerns the dugout parallel to the third base line. In June 2011, there was a six-foot high chain link fence that was three feet from the front of the dugout, which extended in a straight line four and one-half feet beyond each end of the dugout running parallel to the third base line. There was no fence on either side of the dugout. The concrete dugout and fence had been in place since at least 1999.
During the game, when the opposing team was at bat, Radebaugh operated the scoreboard at Coach Yandre’s request. To operate the scoreboard Radebaugh sat on an overturned bucket in front of and to the home plate side of the dugout. Radebaugh was behind the chain link fence in front of the dugout, but, when viewed from home plate, there was no fence between Radebaugh and home plate, which was approximately 49-feet away. While operating the scoreboard, Radebaugh, who was not wearing a helmet, was struck in the head by a line-drive foul ball.
Players from the Lake Mills teams had operated the scoreboard in the same location and manner as Radebaugh for many years, according to the court. Radebaugh, School District personnel, and the individual defendants had seen players operate the scoreboard in the same location and manner as Radebaugh. Radebaugh, School District personnel, and the individual defendants were aware that a line-drive foul ball hit from home plate could enter the area where the scoreboard operator sat without being stopped by the fence in front of the dugout. None of the parties had seen a ball hit the scoreboard operator before Radebaugh was struck.
Radebaugh sued the School District and the individual defendants alleging negligence. The School District and individual defendants filed motions for summary judgment seeking dismissal of Radebaugh’s claims on various grounds, including governmental immunity under Wis. Stat. § 893.80(4) and contact sports immunity under Wis. Stat. § 895.525(4m). After briefing and oral argument, the circuit court issued a well-reasoned decision granting the motions on those two grounds and dismissing Radebaugh’s claims.
The plaintiff appealed.
The appeals court focused “on whether the known and compelling danger exception applies to abrogate the School District’s governmental immunity and, second, on whether the reckless conduct exception applies to abrogate the individual defendants’ contact sports immunity.”
The Known and Compelling Danger Exception to Governmental Immunity Under Wis. Stat. § 893.80(4)
The relevant case for the court’s examination was Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶16, 253 Wis. 2d 323, 646 N.W.2d 314. “For purposes of the immunity analysis, we assume that the School District did act negligently, and we focus on whether the School District is nonetheless entitled to governmental immunity under § 893.80(4) and whether any exception applies to abrogate that immunity,” wrote the court, citing Lodl, 253 Wis. 2d 323, ¶17.
Further, the known and compelling danger exception arises when “there exists a known present danger of such force that the time, mode and occasion for performance are evident with such certainty that nothing remains for the exercise of judgment and discretion.” Lodl, 253 Wis. 2d 323, ¶38
The appeals court found that the “small chance that Radebaugh would be seriously injured” did not rise to the level of a “known present danger.”
Elaborating on this, it noted that the parties “had observed or participated in games at Campus Field for many years, and none had either seen a ball enter the area where the scoreboard operator sat or seen a ball hit the scoreboard operator before Radebaugh was struck. No party testified that anyone had ever complained about the circumstances or sought any changes.”
Furthermore, the record “as a whole does not support as reasonable the inference that the School District was aware of a danger that was so highly probable as to be nearly certain and require immediate correction, which is what the cases cited above require.”
The Reckless Conduct Exception to Contact Sports Immunity Under WIS. STAT. § 895.525(4m)
Turning to the plaintiff’s argument that the defendants engaged in reckless conduct, the court was similarly unmoved.
“We conclude that the evidence establishes that none of the individual defendants knew, before Radebaugh was struck, that allowing the scorekeeper to sit on a bucket in front of the dugout unprotected by a helmet or by a fence between the scorekeeper and home plate created a high risk of physical harm to the scorekeeper or that the individual defendants consciously disregarded that risk,” wrote the court. “Scorekeeping in that manner and location was a routine practice for years. While they were aware that there was a possibility that the scorekeeper could be struck by a line-drive foul ball, there is no evidence that anyone had seen a ball hit in that location or seen a player in that location struck by a ball. And, there is no evidence of any complaints or recommendations for change. Coach Yandre testified that he had never thought about recommending that the fencing continue around that end of the dugout area, and that it was so common for players to operate the scoreboard there that he did not focus on it. Meyers testified that he had never seen a ball hit in the area around the scorekeeper and never anticipated anyone being possibly hit there, and was not concerned because the practice was within the rules and the player was out of play. Burrow testified that he had never seen anyone in that area get hurt and so had never thought about it. We cannot reasonably infer from these facts that the individual defendants consciously disregarded a high risk of harm to Radebaugh.”
Dane Radebaugh, et al. v. Wausau Underwriters Insurance Company P/K/A Liberty Mutual Insurance Company, et al. Ct. App. Wisc.; Appeal No. 2016AP2357, 2017 Wisc. App. LEXIS 995; 12/7/17
