Metropolitan News-Enterprise


Thursday, June 13, 2019


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Person in Proximity of Backyard Ball Game Does Not Necessarily Assume Risk—C.A.

Following Rehearing, Fifth District Clings to View That Such an Area Is Not ‘Equivalent Of Wrigley Field’; Defendant Must Show Plaintiff Was Spectator or ‘In Field of Play’


By a MetNews Staff Writer


The Fifth District Court of Appeal, after granting a rehearing in a case, stuck with its Nov. 27 conclusion that it cannot be determined from a jury’s special verdicts whether the defendant—who was 16 at the time of a July 4 barbeque and pool party at which a bat he was using flew from his hands, striking the plaintiff in the face—is shielded from liability based on primary assumption of the risk.

Acting Presiding Justice Bert Levy, wrote the original opinion, which reversed a defense judgment and an award of $69,000 in costs to the defendant based on the plaintiff’s rejection of statutory offer of compromise for $100,000, remanding for a new trial. Levy also authored the opinion filed Tuesday.

Neither opinion was certified for publication.

Granting of Rehearing

Explaining the rehearing, Levy said:

“On December 19, 2018, after issuing an opinion in substance the same as this one, we granted defendant’s petition for rehearing. For various reasons, defendant claimed he had not been provided a fair opportunity to brief the issues relating to the special verdict form. In an abundance of caution, we granted the petition.”

 Following further briefing, the justices’ view remained that the form was defective.

“[W]e reject defendant’s arguments that the special verdict form was adequate, merely advisory, or that regardless of any deficiency therewith we may simply imply findings in support of the judgment,” Levy wrote.

Essential Findings Missing

He repeated what he had said six-and-a-half months earlier:

“[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 circumstances were that the plaintiff, architect John C. “Chuck” Heflebower, hosted the party; defendant Ryan Beard was playing “home run derby” with Heflebower’s sons, then 13 and 16, using a light-weight plastic ball and a metal bat; that the plaintiff knew the game was being played; he was struck after he got out of the pool and was looking for a towel. His injuries were severe, and he sought $2.7 million in damages.

Conclusion Unwarranted

Leaving unchanged language from the first opinion, Levy said:

“[L]lacking essential factual findings by the jury upon which to ascertain the nature of plaintiff’s relationship to the sports activity—specifically, whether plaintiff was a spectator or in the field of play at the time of his injury—the trial court was not in a position to reach the conclusion that primary assumption of the risk was applicable. Consequently, we hold the trial court erred in concluding the defense applied. The mere fact that plaintiff subjectively knew the sports activity was happening was clearly insufficient, by itself, to permit the conclusion that plaintiff was involved as a spectator or positioned in the field of play.”

He continued:

“Moreover, we 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. Rather…, a more complete factual basis for ascertaining plaintiff’s relationship to the sport activity was required and should have been addressed on the special verdict form.”

Levy 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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