Metropolitan News-Enterprise

Friday, April 7, 2006


Page 1


State Supreme Court Rules:

Risk of Intentional Beanball ‘Inherent’ in College Baseball Game


By a MetNews Staff Writer


The risk of being intentionally hit in the head by a pitch is inherent in the game of baseball and is assumed by players of the sport at the community college level, the state Supreme Court ruled yesterday.

The 6-1 decision provoked a sharp dissent from Justice Joyce L. Kennard, who said her colleagues had reached a “startling conclusion.”

Quoting from an official comment to Major League Baseball’s rule against throwing pitches at a batter’s head, the dissenting justice commented:

“It is contrary to the official view in the sport that such conduct ‘should be ñ and is ñ condemned by everybody.’”

But Justice Kathryn M. Werdegar, writing for the majority, said pitches intentionally thrown at hitters are an “inherent risk of the sport, so accepted by custom that a pitch intentionally thrown at a batter has its own terminology: ‘brushback,’ ‘beanball,’ ‘chin music.’”

She added:

“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.”

The court’s ruling reversed a 2003 decision by a divided panel of Div. Five of this district’s Court of Appeal, which had allowed the suit filed by Jose Luis Avila against Citrus Community College to go forward.

Helmet Broken

Avila, playing for Rio Hondo Community College, was struck by a pitch that broke his batting helmet. He claimed the pitch was in retaliation for one that struck a Citrus player.

The Associated Press reported yesterday that Avila, who was 19 at the time of the incident in 2001, now suffers from sporadic seizures.

Werdegar said the intermediate appellate court was correct in concluding that Citrus was not immune from suit under Government Code Sec. 831.7, which provides that “[n]either a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity...for any damage or injury to property or persons arising out of that hazardous recreational activity.”

That section does not apply to supervised school sports, the high court justice said.

No Duty

But she said Citrus owed no duty to Avila to protect him against the risks inherent in playing baseball. Avila, she explained, could not demonstrate that the school did anything to “enhance” that risk.

Quoting language from Knight v. Jewett (1992) 3 Cal.4th 296, Werdegar said tort liability can attach only to conduct “totally outside the range of the ordinary activity involved in the sport,” such as throwing a ball at a batter waiting for his turn at bat.

“The District owed no duty to Avila to prevent the Citrus College pitcher from hitting batters, even intentionally,” she declared. “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.”

Nor, she reasoned, did the school owe Avila any duty to be sure he received proper medical care after his injury. She noted that Rio Hondo had its own coaches and trainers at the game.

Werdegar rejected Kennard’s suggestion that Avila should have been permitted to amend his complaint to add a battery allegation. Such an amendment, she argued, would have been “futile.”

She reasoned:

“[T]he baseball player who steps to the plate consents to the possibility the opposing pitcher may throw near or at him. The complaint establishes Avila voluntarily participated in the baseball game; as such, his consent would bar any battery claim as a matter of law.”

Kennard said she agreed with the majority that Citrus was not entitled to immunity under Sec. 831.7, but not with its conclusion on the issue of duty.

The “legal rule that there is no duty to avoid risks ‘inherent’ in a recreational sport” entered California law with the plurality opinion in Knight and was “later embraced by a majority of this court in Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990,” Kennard said.

“Unlike good wine, this rule has not improved with age,” she commented.

Citing her own concurring opinion in Cheong v. Antablin (1997) 16 Cal.4th 1063, she added:

“I have repeatedly voiced my disagreement with this court’s adoption of that rule, which is ‘tearing at the fabric of tort law.’”

The task of determining what risks inhere in a given sport is “amorphous and fact-intensive,” and not one that trial courts can hope to accomplish at the demurrer or summary judgment stage, she argued.

“[T]his case illustrates,” she asserted, “that the no-duty-for-sports rule is unworkable and unfair.”

The case is Avila v. Citrus Community College District, 06 S.O.S. 1756.


Copyright 2006, Metropolitan News Company