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Brushbacks and beanballs mean liability for pitcher

It’s a two-and-two pitch. You’re at the plate, the star player trying to score the winning run. (You, not me. I maxed out at Little League.)

The pitcher, a known “headhunter,” takes the signal, reaches back and fast-balls a beanball right at your head. Your helmet probably saved your life, but you are injured.

Do you dust yourself off and traipse down to first base glaring at the pitcher? Do you charge the mound? Naw. You hire a lawyer.



Jose Avila, a Rio Hondo Community College student, was playing a game against the Citrus Community College Owls. Avila came to bat at the top of the inning after the Rio Hondo pitcher had hit a Citrus College batter with a pitch.

What a surprise. The Citrus College pitcher hit him in the head with a pitch, cracking his batting helmet. Everyone knew the pitch was an intentional beanball thrown in retaliation.



Avila staggered, made it to first base, then had to leave the game. He suffered serious injuries.

Avila sued the Citrus Community College district. The district defended on two basic grounds: 1) Governmental immunity and 2) Avila assumed the risk of getting hit in the head.

To encourage private property owners to allow the public to use their land, the civil code gives land owners immunity from lawsuits filed by recreational users of their land.

Similarly, the government code gives public entities immunity when sued by any person who participates in a “hazardous recreational activity” on public lands.

Hazardous recreational activities include diving, skiing, hang gliding, rock climbing and body contact sports. Get injured on public property doing a hazardous recreational activity and you will generally be precluded from successfully suing the governmental entity. Again, the underlying public policy is to encourage open use of public lands for recreation ” a good thing.

A baseball game can sometimes be construed as a hazardous recreational activity, for which the public property owner, a school district perhaps, is immune from liability.

However, other code sections impose liability on public schools for injuries suffered by their athletes when conducting supervised athletic practices and games ” if the school is negligent, such as failing to supply enough umpires or provides an unsafe playing field.

So there are two sets of laws regarding recreational activities on public property. One grants immunity and one allows participants to sue.

The California Supreme Court reconciled these conflicting laws by holding that recreational sports in a school environment, like intramural sports such as the Citrus Community College game, are not as much “recreational” as they are educational. Therefore the school district is responsible for Avila’s injuries if the district was negligent, for example, it did not supervise the game properly.

On the other hand, if Avila’s injuries happened during a voluntary, unsupervised game on public land, in order to prevent public entities from closing off their lands to limit liability, those kinds of activities are characterized as “recreational” and the public land owner is immune. The distinction is not always clear.

Public schools have a duty to protect their athletes from injuries during school sponsored activities. If the district is negligent, it is liable. However, if members of the public are injured during voluntary unsupervised play on public land, hang gliding, rock climbing, diving, or even a non school-sponsored baseball game, the public entity land owner is not responsible.

Schools are not immune from injuries suffered during organized intercollegiate games, so Citrus College can be sued by Avila for negligence. Avila will have to prove the district did something wrong.

The second question the Supreme Court discussed is whether being intentionally hit by a pitcher is an inherent risk of the sport. Does a batter assume the risk of a pitch intentionally thrown at his head ” sometimes called a brushback, beanball or chin music? That last one is new to me.

The official rules of Major League Baseball prohibit pitchers from trying to hit the batter: “To pitch at a batter’s head is unsportsmanlike and highly dangerous. It should be ” and is ” condemned by everybody. Umpires should act without hesitation in enforcement of this rule.”

At least eight batters in organized baseball have been killed by pitches. On the other hand, many baseball managers and pitchers openly discuss the strategic importance of ordering selective intentional throwing at opposing batters, principally to retaliate for one’s own players being hit. Brushback pitches rattle batters.

The Supreme Court finally ruled that, “For better or worse, being intentionally thrown at is a fundamental part and inherent risk of the sport of baseball. It is not the function of tort law to police such conduct.”

The Citrus College district may be sued for negligence, there is no immunity, but the Citrus College pitcher and the district are not liable just because their pitcher throws intentional beanballs.

The majority closed its opinion quoting Yogi Berra: “In the possible apocryphal words of New York Yankee’s catcher Yogi Berra, ‘It ain’t over till it’s over,’ but this means that for Avila’s complaint against Citrus College, it’s over.”

Justice Kennard agreed with the majority that intercollegiate baseball games are not “hazardous recreational activities” justifying immunity for a school district, i.e. the district can be sued. She disagreed with the majority opinion ruling that said “a baseball pitcher owes no duty to refrain from intentionally throwing a baseball at an opposing player’s head.”

Kennard called that “a startling conclusion.” Justice Kennard is not a jock. If she wrote the rules, my baseball career might have been extended.

The bottom line is that a community college can be sued for negligence if an injury occurs during a supervised baseball game, as opposed to a non-supervised, voluntary game, even on campus, but the school has no duty to stop players from intentionally throwing baseballs at rival players. The risk of being hit by a pitch is assumed by the players. Part of the game.

Jim Porter is an attorney with Porter· Simon, with offices in Truckee, South Lake Tahoe and Reno. He may be reached at porter@portersimon.com or at the firm’s Web site http://www.portersimon.com.


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