Serving clients in civil litigation since 2003.

Partners Gordon W. Bowley, John P. Sciacca, Robert F. Bennett, and R. James Miller
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Powers Miller Successful in “Softball vs Face” Case

On Behalf of | Aug 26, 2011 | Results

John Sciacca headshot

Powers & Miller attorneys, Jim Miller and John Sciacca, recently won a summary judgment ruling for the defense in a “softball to the face” case. This interesting case arose out of a co-ed slow-pitch softball game. Defendant was a batter at the time of the incident. Plaintiff pitched a ball to the defendant. Defendant swung at the pitch, hit the ball and the ball traveled back to the mound where it hit plaintiff in the face.

The bat used to hit the ball was destroyed while being tested by the bat manufacturer, however, it was determined that the bat defendant used at the time was unknowingly an altered slow-pitch softball bat owned by a co-defendant.

Plaintiff sued under the theory of negligence. Defendant argued that the doctrine of Primary Assumption of the Risk negated our client’s duty of care to plaintiff. The defense theory was that inherent in the risk of softball was the risk of being hit by a batted ball. Eliminating this risk would clearly chill vigorous participation in the sport and would alter the fundamental nature of the activity. As a matter of fact, eliminating this risk essentially would eliminate the game of softball entirely.

The court found that as a matter of law, defendant owed plaintiff no duty of care due to the Doctrine of Primary Assumption Risk, which was necessary for plaintiff’s cause of action for negligence.

Another issue was raised as to whether the use of an altered bat increased the risk of injury inherent in the sport of slow-pitch softball. Using an altered bat was against the league rules, however, “even when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in the activity”. Knight v Jewett, (1992) 3 Cal.4th 296, 318-319.

Plaintiff admitted in her deposition that the use of “illegal bats” was inherent in the recreational sport of co-ed softball. Plaintiff was aware that illegal bats were being used “all the time.” Prior to the subject incident, “many times” plaintiff had seen an individual hit with an illegal bat.

Based on plaintiff’s own deposition testimony, it was argued that the use of illegal softball bats was inherent in the sport, as was any safety issue that might arise as a result of that use. “For better or worse” the use of an altered bat “is a fundamental part and inherent risk of softball. It is not the function of tort law to police such conduct.” Avila v. Citrus Community college District (2006) 38 Cal.App.4th 148, 165.

Lastly, plaintiff was unable to produced any evidence regarding the speed of the ball hit on that particular day at that particular time, or that the subject ball arrived at the pitcher’s mound any faster than what could have been achieved with a regulation bat.

Without evidence that showed that the alterations increased the performance of the bat or that the ball that hit plaintiff was traveling any faster than what would have been achieved using a regulation bat, the court found that plaintiff could not prove causation, an element necessary for her cause of action for negligence. Merely the fact that an altered bat was used was insufficient to impose negligence liability and Powers & Miller’s motion for summary judgment for defendant was granted.