Sport Injury: Softball bat strikes player in the head Revisited

This case is interesting in that it demonstrates the difficulty of pursing a lawsuit stemming from injury while playing a sport; in this case the sport is softball. A player was struck in the head during batting practice. The batter let the bat fly after hitting the ball and it struck another player. While that's not something players want to happen it does and they know it, so it's in many ways foreseeable. Iowa law is tough in this area and requires the act that led to the injury to be intentional or reckless. The Iowa Supreme Court took up the matter and sent the case back for a trial and for the jury to decide if the batters actions were either intentional or reckless.

There is little sense in analyzing this case because all we have is what the Supreme Court decided to tell us about the facts they thought important for their purposes; what a jury may consider could be different. I will cover another aspect of this case on The Iowa Edict and how tort reform makes handling these cases just about impossible. The title will be either the "Iowa Supreme Court hits another home run" or "There is a reason why no lawyer will take your case". What I will leave you with today is the menu of where to find information about this case and the law.

The Parties: BENJAMIN FELD ETAL V LUKE BORKOWSKI

The Iowa Supreme Court's decision: Docket No. 07-1333, Filed October 22, 2010 also carried on Lombardi Law Firm. This is a 40 page decision, so it's not light reading.

The Iowa District Court docket: 02141  LACV036540

Venue: Carroll County, Iowa

Date Created: 02/14/2006

Plaintiffs' Attorney: Dan Connell, Gregory J. Siemann of Green, Siemann & Greteman, P.L.C., Carroll, and Dan Connell of Dan Connell, P.C., Storm Lake, for appellants.

Defendant's Attorney: Gregory J. Siemann

Judge: It appears to be the Honorable Dale E. Ruigh.

Disposition: Justice Cady for the Court. Originally dismissed per motion for summary judgment, but then reinstated by the Iowa Supreme Court. Well done Mr. Connell and Siemann!

To view the filings on the docket go the Iowa Courts Online and do a search for "Feld" as the last name. Otherwise try this link.

Iowa Statutes: Iowa Code § 668.1(1) (2005). Caveat: The link is to the 2009 Code section and not the 2005 version, which may be different. For the full text of this code section sees below.

Restatement of Torts: Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 7(a), at 77 (2010).

Significant Iowa Cases Mentioned in the Decision: Leonard ex rel. Meyer v. Behrens, 601 N.W.2d 76, 80-81 (Iowa 1999); Dudley v. William Penn College, 219 N.W.2d 484 (Iowa 1974); Thompson v. Kaczinski, 774 N.W.2d 829, 835 (Iowa 2009).

See also, Victor E. Schwartz, The Restatement Of Torts Third, Liability For Physical & Emotional Harm: What  It Means To You. Then, Ellen M. Bublick, A Restatement (Third) Of Torts: Liability For Intentional Harm To Persons - Thoughts. Or if not available check on the Lombardi Law Firm site.  And Sugarman, LAND-POSSESSOR LIABILITY IN THE RESTATEMENT (THIRD) OF TORTS: TOO MUCH AND TOO LITTLE

Lombardi Law Firm site: Schwartz, Bublick and Sugarman. Feld vs Borkowski decision reprinted.

The News: Sports injury lawsuit allowed to go on, AP, October 23, 2010

Iowa court overturns rulings in softball game, Des Moines Register, October 22, 2010

Supreme Court Summary of Procedure: CADY, Justice.

This appeal arises from an action by a participant in a softball practice against a co-participant for head injuries suffered from a flying bat when the defendant released his bat while hitting a pitched ball. We primarily consider the application of the contact-sports exception and the sufficiency of evidence to support a finding of recklessness. The district court granted summary judgment for the defendant. We transferred the case to the court of appeals, who affirmed the decision of the district court. We granted further review. On our review, we vacate the decision of the court of appeals, reverse the decision of the district court, and remand for trial.

Supreme Court's Conclusion: IV. Conclusion.

In light of the underlying weakness in the contact-sports rationale, I would not permit it to drift outside its moorings. As a result, I would not extend the contact-sports exception to an amateur game of softball. At a minimum, whether the contact-sports exception applies involves a careful consideration of the facts and circumstances.

Even assuming the contact-sports exception applies to the game involved in this case, the rule does not immunize negligent conduct that is outside the inherent risk of the activity. In this case, at a minimum, the plaintiff is entitled to argue that the conduct involved-the throwing of a bat by a right-handed batter who twirls around and throws the bat with with sufficient force to strike the first baseman, what was indisputably an extraordinary and unheard of event-presents a danger that was outside the inherent risk of the game and, as a result, subjects the actor to liability based on ordinary negligence.

Wiggins, J., joins divisions I and III(A) of this special concurrence and Hecht, J., joins this special concurrence in its entirety.

Iowa Statutes: Iowa Code § 668.1(1):   1.  As used in this chapter, "fault" means one or more acts or       omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability.  The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages.