Revisiting the contact sport exception with the congenial and hard headed, but determined Ben Feld: In October of 2010 I first wrote about this lawsuit. [Feld vs Borkowski, 790 N.W.2d 72 (Iowa, 2010] The lawsuit is about two softball players turned legal combatants. During batting practice the batter struck a left field foul and somehow the bat ended up flying down towards first base striking the first baseman. If you understand baseball the physics just don't add up. Normally, if a right-handed batter loses his grip on the bat it will sail towards third or into foul territory left of third base. So as I like to say, "Now you know the rub."
Having played many contact sports, including that of a baseball catcher, I found the case intriguing to say the least. It seemed to me that anyone who has played the game or cared to understand it could arrive at only one conclusion; the same as the Supreme Court of Iowa. Yes, baseball is a contact sport, but the manner of how the bat left the batter’s hands could not be explained by it being a simple miss grip of the batter, at least not in my opinion. From my perch behind the plate, I had never seen a left field foul cause a bat to end up heading in the direction of first base. It seems very unlikely, if not impossible. Apparently so did the Feld's. From a legal standpoint, the contact sport exception should not excuse all forms of behavior exhibited during a sporting contest resulting in injury to a participant.
Of all that has been written in both Iowa higher court decisions the case began with a lawyer pleading the clients’ facts. What everyone seemed to start out arguing had much to do with whether the Plaintiffs’ lawyers plead simple negligence as opposed to reckless behavior. But this being a notice pleading state, great latitude is given to the plaintiffs’ style of pleading the case. And so what may appear as legal artfulness can sometimes disguise a sucker punch or incompetence; one never really knows for sure. But in this case the defense team, after pleading affirmatively the contact-sport exception defense opened up the door. The plaintiffs defended the motion for summary judgment arguing the behavior of the batter did amount to recklessness, in other words saying, "We challenge that factual assertion as raised by you by way of an affirmative defense." The Supreme Court of Iowa rescued the case from foul ball territory with its decision the question was whether the Felds produced sufficient evidence of recklessness to withstand summary judgment. The Court then focused on the legal issue of whether the expert’s opinion was sufficient to make a factual dispute for recklessness or an intentional act going beyond the game itself. [See page 80 of the decision.] I believe pleading mere negligence is appropriate, until by way of an affirmative defense the defendant raises the contact-sports exception. In other words, it has to be plead and proven.
I do wonder about the relevancy of the rules of baseball to establish behavior standards while playing the game. Is there a rule in baseball prohibiting one player from purposefully injuring another? Is there a rule prohibiting reckless play? Is there a rule prohibiting players from acting in such a way that injury to another player is inevitable? The cases don’t discuss the rules of the game; instead the expert’s opinion becomes the scouting report which focuses on the physics of the game. With this I can agree and see a double play in the making for the plaintiffs' team.
I have to agree with the Court’s opinion and in deference to those writing for the Carroll County District Court and the Court of Appeals perhaps they simply misunderstood the game of baseball. Taken to the extreme the Red Sox do not expect the Yankees to show up and beat them to death with a baseball bat. Well maybe the greatest rivalry in professional baseball does expect that figuratively, but not otherwise. Even in contact sports there are rules of engagement and lines drawn in the sand that even the baseball commissioner will fine or suspend players who dare cross. No not all behavior or injury in sport is civil or justified and when as in this case a first base player losses an eye from a bat after a left field foul swing, well even Michael Pineda or Jeter can see that is more than just a sticky situation. This wasn’t a pine tar problem ladies and gentlemen. If this were a baseball game the fans would be screaming for the plate ump to open his eyes. Which apparently the Felds yelled to both the district court and court of appeals judges.
In the end what Borkowski found out is that it took Ben Feld’s lawyers three strikes before being called out. Two strikes won't do it. And in this case the plate count was 2 and 0, before young Mr. Ben Feld hit it over the Green Monster. Well done Ben, even David Ortiz would be a happy teammate.
Tomorrow’s Surprise: I sit down with Ben Feld to discuss his life after being rendered blind in his left eye and then putting up with classmates who cared more about 'the softball team' than the effects being blind had on him. He surprised me with his candor, pursuit of justice and in the end, his choice of a profession. Join me tomorrow as we go unplugged with Ben Feld.
In case you are interested here is what I wrote in 2010.
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.
Read the Court decisions from the Supreme Court of Iowa and the Court of Appeals of Iowa by following this link.
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 [I no longer write the Iowa Edict, but focus on The Verdict.] 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!
- 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: 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 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.