Metropolitan News-Enterprise


Wednesday, November 28, 2018


Page 3


Court of Appeal:

Assumption of Risk Not Established in Sports-Injury Case

Opinion Says Defense Requires Showing That Plaintiff, Struck by Flying Bat, Was Spectator or ‘In the Field of Play’; Backyard Not ‘Equivalent of Wrigley Field’


By a MetNews Staff Writer


A jury’s special verdicts were insufficient to establish the defense of primary assumption of the risk, the Fifth District Court of Appeal declared yesterday in reversed a trial court’s judgment in favor of the defendant, a 16-year-old boy whose aluminum baseball bat flew from his hands at a backyard party, hitting the plaintiff in the face.

Acting Presiding Justice Bert Levy noted in his unpublished opinion that the jury made findings that defendant Ryan Beard was participating in a sports activity at the time of the 2013 mishap and was not acting with recklessness and that plaintiff John C. Heflebower was not a participant but knew the activity was taking place.

The opinion reverses a judgment of Fresno Superior Court Judge Kristi Culver Kapetan, and remands the case for further proceedings.

Essential Findings Missing

Levy said:

“[T]he trial court apparently relied on the well-recognized proposition that being hit by an accidentally thrown baseball bat is an inherent risk assumed by baseball game spectators and persons in the field of play….We conclude the trial court prejudicially erred because the jury did not make, and was never asked to make, findings of fact on the special verdict form that plaintiff was either involved as a spectator or positioned in the field of play. Lacking such essential findings by the jury, the trial court could not properly conclude that primary assumption of the risk was applicable in the unique circumstances of this case.”

The defendant was playing a game of “home run derby” with plaintiff’s sons, then aged 13 and 16, at a barbeque/pool party. The object was to hit a wiffle ball (a light-weight plastic ball) hard enough to reach the pool o beyond.

Everyone Not ‘Spectator’

 “[W]e are not prepared to hold, at least not on this record, that simply because defendant and others were engaged in something like home run derby or hitting practice with a wiffle ball during a backyard barbeque and swim party it would, as a matter of law, convert all parts of the yard into the equivalent of Wrigley Field or a little league stadium and automatically make everyone in the yard a ‘spectator’ or ‘in the field of play’ for purposes of primary assumption of the risk regardless of where they were situated or what they were doing,” Levy wrote.

He said the special verdict form “was fatally defective” based on incompleteness “and the trial court’s judgment based thereon was in error.”

The case is Heflebower v. Beard, F074762.


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