BENJAMIN FELD, LARRY FELD , and JUDITH FELD , Plaintiff s - Appell ants , vs. LUKE BORKOWSKI , Defendant - Appell ee .
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IN THE COURT OF APPEALS OF IOWA
No. 8-247 / 07-1333
Filed October 1, 2008
BENJAMIN FELD, LARRY FELD,
and JUDITH FELD,
Plaintiffs-Appellants,
vs.
LUKE BORKOWSKI,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Carroll County, Dale E. Ruigh,
Judge.
The plaintiffs appeal from the district court‘s order granting summary
judgment in favor of the defendant. AFFIRMED.
Gregory J. Siemann of Green, Siemann and Greteman, P.L.C., Carroll,
and Dan Connell of Dan Connell, P.C., for appellants.
Joel T. S. Greer of Cartwright, Druker & Ryden, Marshalltown, for
appellee.
Heard by Huitink, P.J., and Vogel and Eisenhauer, JJ.
2
HUITINK, P.J.
The plaintiffs, Benjamin Feld, Larry Feld, and Judith Feld, appeal from the
district court‘s order granting summary judgment in favor of the defendant, Luke
Borkowski. We affirm.
I. Background Facts and Prior Proceedings
During the summer of 2005, a group of male high school students formed
a team to participate in an intramural slow pitch softball league. The group of
friends held weekly practices to prepare for the games. During a typical practice,
they each took turns hitting the ball. One person pitched the balls to the batter,
while the rest of the players fielded the batted balls. Because nobody played
catcher, the batter generally tried to hit all of the balls that were pitched his way.
On June 2, 2005, the teammates got together to practice for an upcoming
game. When Luke entered the batter‘s box for his turn to hit the ball, Benjamin
was playing first base, standing approximately sixty feet away.
After a few
pitches, Luke swung at a pitch that was ―a little outside‖ and the ball flew foul
towards third base. As he swung, the aluminum bat came out of his hands and
flew through the air towards Benjamin. The bat flew parallel to the ground and hit
Benjamin in the head, knocking him unconscious.
On February 14, 2006, the Felds1 filed the present petition seeking
damages against Luke under the theory of negligence, invoking the doctrine of
res ipsa loquitur. Luke answered the petition by raising numerous affirmative
defenses, including the contact sports exception and assumption of the risk.
1
The parents sought damages for medical expenses and other expenses associated
with caring for an injured minor child and for the loss of services from their child.
3
During discovery, the parties deposed Benjamin, Luke, and two other members
of the team—Jason Soyer and Wade Handlos.
Benjamin stated that he had always played first base ever since he was a
young child. He also stated Luke was not engaged in horse play at the time of
the incident, there was no animosity between himself and Luke, and he knew
Luke did not intend to hit him with the bat. Benjamin described how he saw Luke
swing and hit the ball towards third base. Because he was watching the ball, he
did not know the bat had left Luke‘s hands and he had no time to react.
Benjamin also stated he had lost the eyesight in left eye because of the incident.
Jason was in the outfield at the time of the injury. He stated there was
nothing unusual about the way Luke was positioned in the batter‘s box. He also
indicated there was nothing unusual about Luke‘s stance, the way he gripped the
bat, or anything else he was doing before the pitch. Jason saw Luke swing and
hit the ball. Once the ball was hit, Jason looked straight up in the air to watch the
ball. Jason did not see the bat leave Luke‘s hands. When Jason heard Luke yell
Benjamin‘s name, he looked toward Benjamin and saw him fall to the ground.
Wade was playing second base at the time of the injury. Wade saw the
pitch and watched the ball fly off Luke‘s bat towards third base. Wade heard
Luke yell Benjamin‘s nickname and turned to look at Benjamin.
Wade saw
Luke‘s bat flying six feet in the air a split-second before it hit Benjamin in the
head.
Luke was the only player who could describe what happened to the bat
after the ball was hit. When responding to the deposition questions, he stated:
4
Q. Why did the bat leave your hands? A. I don‘t know. I
had sweaty hands and – I don‘t know.
Q. Did the ball – Excuse me, did the bat leave your hands
before you made contact with the ball or after you made contact
with the ball? A. I don‘t know. Maybe at the same time or a little
after.
Q. When you say a little after, you mean that the ball was
struck first and then the bat left your hands? A. Yes.
Q. Had you ever had that occur before? A. No, I hadn‘t.
....
Q. Now, have you ever had a bat come out of your hand
before? A. Yes, I have, but it was usually on my backswing – or
after – the bat was behind me.
When he was asked if, after he hit the ball, he swung completely around and
then released the bat, Luke answered ―No.‖
He also stated that he did not
intentionally throw the bat after he hit the ball.
After the parties completed discovery, Luke filed a motion for summary
judgment arguing the case should be dismissed as a matter of law under the
contact sports exception.
Luke pointed out that under the contact sports
exception, a participant in a contact sport may only bring suit for injuries received
during the game ―for acts of another participant done to intentionally inflict injury
or done in reckless disregard for the safety of the other participant.‖ Leonard ex
rel. Meyer v. Behrens, 601 N.W.2d 76, 78 (Iowa 1999). Luke argued there was
no evidence to prove he had done anything in reckless disregard for the safety of
the other participants. The Felds resisted the motion by presenting an affidavit
from Ed Servais—an expert witness who had coached college baseball at the
collegiate level for twenty-four years. The affidavit stated, in pertinent part:
2. . . . From my observations, batters rarely lose control of
the bat in such a way that it flies out of their hands. When a batter
does lose control of the bat is [sic] usually ends up going to the pull
side of the batter. For example, when a right-hand hitter loses
5
control of the bat, the bat will end up on the third base side of the
field and vice-versa for a left-hand hitter.
3. In all my years of experience, I have never seen a right
hand batter lose control of the bat where the bat ended up on the
first base side of the field some sixty feet away from the batter. I
have never seen or heard of a 1st baseman being struck by a righthanded batter who let go of a bat.
4. In order for a right-hand batter to lose control of the bat
and for the bat to end up on the first base side of the field, the
batter would have to over swing and get his body out of control in
order for the bat to end up at first base.
....
6. I have attempted to duplicate the incident as described by
Luke Borkowski in his deposition. I found it impossible for the bat
to strike the ball towards third base and come out of my hands and
be thrown toward first base.
7. It is my opinion that Luke Borkowski swung at a pitch and
hit underneath the ball which resulted in a high foul ball outside the
third base line. It is my further opinion that Luke Borkowski
followed through and rotated around after striking the foul ball and
deliberately threw the bat or let go of the bat in such a way that it
was flung with considerable force through the air towards the first
base position where Benjamin Feld was positioned.
8. It is my opinion that had Luke Borkowski not rotated
around, after striking the ball and let loose of his bat, Benjamin
would not have been struck by the bat. Luke‘s conduct was
reckless.
On July 10, 2007, the district court entered an order granting Luke‘s
motion for summary judgment. In doing so, the court concluded as a matter of
law that softball was a ―contact sport.‖ The court also noted the Felds ―filed no
claims asserting liability for reckless or deliberate conduct‖ and
[n]othing indicates that, after swinging the bat at a pitch, [Luke]
threw the bat in anger, out of disgust, or for any other reason.
Nothing in the existing record suggests that [Luke] lost the grip on
the bat while acting outside the normal course of playing softball.
On appeal, the Felds challenge the court‘s conclusion that softball is a
―contact sport.‖
They also contend that, even if softball is a contact sport,
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(1) Benjamin did not assume the risk of being injured in such a manner and
(2) Luke‘s action in ―throwing‖ the bat was reckless.
II. Standard of Review
We review a district court‘s ruling on a motion for summary judgment for
correction of errors at law. Buechel v. Five Star Quality Care, Inc., 745 N.W.2d
732, 735 (Iowa 2008). Summary judgment is available only when there is no
genuine issue of material fact. Id. ―A ‗genuine issue‘ of material fact exists if the
evidence is such that a reasonable fact finder could return a verdict for the
nonmoving party.‖ Baratta v. Polk Co. Health Serv., 588 N.W.2d 107, 109 (Iowa
1999). The burden of showing the nonexistence of a material fact is on the
moving party, and every legitimate inference that reasonably can be deduced
from the evidence should be afforded the nonmoving party.
Buechel, 745
N.W.2d at 735. An inference is legitimate if it is ―rational, reasonable, and
otherwise permissible under the governing substantive law.‖ Butler v. Hoover
Nature Trail, Inc., 530 N.W.2d 85, 88 (Iowa Ct. App. 1994). An inference is not
legitimate if it is ―based upon speculation or conjecture.‖ Id.
III. Merits
A. Is Softball a Contact Sport?
Leonard ex rel. Meyer v. Behrens is the only Iowa case that addresses the
contacts sports exception to the general rule of negligence. In Leonard, the
district court utilized the contact sports exception in a lawsuit where one
participant in an informal paintball game was struck in the eye by a capsule fired
from another participant in the paintball game. 601 N.W.2d at 78. On appeal,
the supreme court analyzed whether to adopt the contact sports exception by
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balancing the ―interest in promoting vigorous athletic and sporting competition‖
against ―the interest in protecting those who participate in those events.‖ Id. at
79.
When considering the balance, the court noted the ―possible flood of
litigation that might result from adopting simple negligence as the standard of
care to be utilized in sporting contests.‖
Id. at 80.
Ultimately, the court
concluded that personal injury cases arising out of a contact sport must be
predicated on reckless disregard of safety because such a ―standard is
necessary to preserve vigorous and active participation in contact sports without
fear of liability for merely negligent bodily contact.‖ Id. Otherwise,
[i]f simple negligence were adopted as the standard of care, every
punter with whom contact is made, every midfielder highsticked,
every basketball player fouled, every batter struck by a pitch, and
every hockey player tripped would have the ingredients for a
lawsuit if injury resulted.
Id. (quoting Jaworski v. Kiernan, 696 A.2d 332, 338 (Conn. 1997)).
Once the court adopted the contact sports exception in Iowa, it turned to
the question of whether paintball was a contact sport. After noting that two other
states had concluded paintball qualified under the contact sport exception, the
court determined paintball was a contact sport under Iowa law because:
[a]lthough paintball is not as widely recognized, traditional, or
organized as baseball or basketball, the facts in this case clearly
show the children were involved in an informal contact game in
which each player consented to being shot with the paint balls.
Id. at 81. The court also went on to state that ―[i]n games in which physical
contact is inherent, indeed, the very purpose of the game as in paintball, rules
infractions and mishaps are virtually inevitable and justify a different standard of
care.‖ Id.
8
We find the language used in the Leonard opinion, when combined with
our review of case law from other jurisdictions, clearly establishes that softball is
a contact sport.
The Leonard decision makes three references to baseball, a sport we find
to be sufficiently similar to softball. First, the court discusses the case of Dudley
v. William Penn College, 219 N.W.2d 484, 485 (Iowa 1974), where a college
baseball player who was struck by a foul ball while sitting on the players‘ bench
sued his coach and his college.
Leonard, 601 N.W.2d at 79. Although the
Dudley decision did not address the liability of the individual who struck the foul
ball, the Leonard decision used the Dudley decision to point out that ―a
participant in an athletic event assumes certain risks normally associated with the
activity‖ and that most sports injuries ―result from the rough and tumble of the
game itself.‖ Leonard, 601 N.W.2d at 79 (quoting Dudley, 219 N.W.2d at 486).
The Leonard decision also referred to baseball when it discussed why it was
necessary to adopt the recklessness standard in contact sports: ―If simple
negligence were adopted as the standard of care . . . every batter struck by a
pitch . . . would have the ingredients for a lawsuit if injury resulted.‖ 601 N.W.2d
at 80.
Finally, the court referred to baseball for a third time when it found
paintball was still a contact sport, even though it was a not a recognized,
traditional, and organized sport like baseball or basketball. Id. at 81. We find the
Leonard decision implies that baseball—which for our purposes is the same as
softball—is a contact sport.
Our review of case law from other jurisdictions confirms that softball is, as
a matter of law, a contact sport necessitating a ―reckless‖ standard.
See
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Landrum v. Gonzalez, 629 N.E.2d 710, 715 (Ill. App. 1994) (―We agree with the
trial court‘s determination that, unlike downhill skiing or golf, physical contact is
part of the game of softball.‖); Ross v. Clouser, 637 S.W.2d 11, 14 (Mo. 1982)
(church softball game); Crawn v. Campo, 643 A.2d 600, 601 (N.J. 1994) (pickup
softball game); Obert v. Baratta, 729 A.2d 50, 51 (N.J. Super. App. Div. 1999)
(informal intra-office softball game); Kiley v. Patterson, 763 A.2d 583, 584 (R.I.
2000) (recreational, coed-softball-league game). Also, as specifically stated in
65 C.J.S. Negligence § 78, at 384 (2000):
Between players in sporting events, such as informal softball
games, only those injuries caused by intentional conduct or by
acting in reckless disregard of the safety of others will give rise to a
cause of action; liability will not be found to exist where ordinary
negligence caused injuries, since physical contact is part of the
game of softball, regardless of its informal nature.
Accordingly, we find the district court properly concluded softball is a contact
sport for purposes of the contact sport exception to the general rule of
negligence.
B. Did Benjamin Assume the Risk of Being Hit by a Bat?
The Felds also claim that, even if softball is a contact sport, the exception
does not apply because Benjamin did not ―assume the risk‖ of being struck by
Luke‘s bat because a first baseman being struck by a bat wielded by a right
handed hitter ―is not inherent or virtually inevitable‖ in the game of softball.
We first reject the Felds‘ claim that Leonard requires the specific incident
or injury to be ―virtually inevitable‖ in order to qualify under the contact sports
exception. The only instance in which the phrase ―virtually inevitable‖ is used in
the Leonard decision is within the following sentence: ―In games in which
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physical contact is inherent, indeed, the very purpose of the game as in paintball,
rules infractions and mishaps are virtually inevitable and justify a different
standard of care.‖ Leonard, 601 N.W.2d at 81. This sentence does not require
the court to find that the particular incident involved in the claim was ―virtually
inevitable.‖
On the contrary, this sentence indicates that in games in which
physical contact is inherent, rules infractions and mishaps are virtually inevitable.
Accordingly, we will focus our attention on whether physical contact is ―inherent‖
in softball, and not consider whether it was ―virtually inevitable‖ that he would be
hit by a bat while playing first base.
As noted above, physical contact is a part of the game of softball.
Runners are ―tagged‖ by opposing players.
Landrum, 629 N.E.2d at 715.
Fielders sometimes collide when pursuing a ball, and players are occasionally
struck with an errantly thrown ball.
Id.
At times, base runners and fielders
collide. Id. Undoubtedly, participants in a baseball or softball game are also at
risk of being hit by a bat. See generally Ratcliff v. San Diego Baseball Club, 81
P.2d 625, 627 (Cal. App. 1938) (―It further appears that not infrequently a bat so
slipping from the hands of the player goes a distance of ninety feet or more.‖);
Gaspard v. Grain Dealers Mut. Ins. Co., 131 So. 2d 831, (La. App. 1961) (―Both
boys are alert intelligent youngsters and both seemed to fully understand the
dangers inherent in the great American pastime of baseball of being struck by
flying balls or bats.‖). There is no question that physical contact is ―inherent‖ in
softball. See Crawn, 643 A.2d at 601 (noting there are ―limitless kinds of physical
contact‖ that can occur in the course of a softball game).
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However, the Felds claim the contact sports exception is limited to
situations where the specific type of physical contact prompting the cause of
action is ―inherent‖ to the contact sport. They argue Benjamin did not subject
himself to this particular risk because, according to his expert witness, he was
standing in a spot in which he could not have anticipated being hit by a bat
wielded by Luke, a right-handed hitter. Even if we assume, arguendo, that the
contact sports exception is subject to such a limitation, we still find, under the
facts of this case, that Benjamin assumed the risk that led to his injury.
When Benjamin chose to play softball on June 2, 2005, he subjected
himself to the risk of being struck by a flying bat. As stated by the Felds‘ expert
witness, ―when a right-hand hitter loses control of the bat, the bat will end up on
the third base side of the field and vice-versa for a left-hand hitter.‖ Under this
rationale, Benjamin, as the first baseman, was susceptible to being hit by a bat
whenever a left-handed hitter stepped to the plate, but he was not susceptible to
being hit by a bat whenever a right-handed hitter stepped to the plate. We find
this distinction meaningless. An occasional flying bat is part of the ―rough and
tumble‖ of the game of softball. Benjamin subjected himself to this risk when he
stepped onto the field as a participant. The contact sports exception applies to
this claim.
C. Did Luke Act with Reckless Disregard for the Safety of Benjamin?
Under the contact sports exception a participant in a contact sport may
only bring suit for injuries received during the game for acts of another participant
done to intentionally inflict injury or done in reckless disregard for the safety of
the other participants. Leonard, 601 N.W.2d at 80.
12
The actor‘s conduct is in reckless disregard of the safety of
another if he does an act or intentionally fails to do an act which it is
his duty to the other to do, knowing or having reason to know of
facts which would lead a reasonable man to realize, not only that
his conduct creates an unreasonable risk of physical harm to
another, but also that such risk is substantially greater than that
which is necessary to make his conduct negligent.
Id. (quoting Restatement (Second) of Torts § 500, at 587).
The Felds argue there was sufficient evidence to preclude summary
judgment in this case because there was ―a genuine issue of material fact
concerning whether Luke‘s conduct subjected Benjamin to an unreasonable risk
of harm.‖
The Felds point to their expert witness who concluded Luke was
reckless because he over swung, got his body out of control, rotated around after
striking the ball and deliberately threw the bat or let go of the bat in such a way
that it was flung with considerable force through the air.
In essence, the Felds argue the fact finder, taking the evidence in the light
most favorable to the nonmoving party, must adopt their expert‘s opinion as to
how the bat came loose from Luke‘s hands, and then adopt his inference that this
behavior was reckless. The flaw in this argument is that the expert‘s opinion is
nothing but pure speculation. No one testified that Luke over swung at the ball,
that he used any amount of force inappropriate for a normal swing, that his body
was out of control at the time he hit the ball, or that, after he made contact with
the ball, he rotated around and somehow flung the bat towards first base. On the
contrary, Benjamin testified there was no horseplay going on at the time of the
event, and Jason testified there was nothing unusual about Luke‘s stance, the
way he gripped the bat, or anything else he was doing before he hit the pitch. An
inference is not legitimate when it is based on pure speculation or conjecture.
13
Smith v. Shagnasty’s, Inc., 688 N.W.2d 67, 71 (Iowa 2004). Because there is not
one scintilla of evidence that Luke did anything out of the ordinary when he
swung at that fateful pitch, we find there can be no legitimate inference that his
actions constituted reckless conduct.2
We have viewed this summary judgment record in the light most favorable
to the Felds and accorded them every legitimate inference that is reasonable
under this record. Because we cannot conclude Luke‘s conduct was reckless
without relying on speculation or conjecture, we find the district court properly
granted Luke‘s motion for summary judgment.
Having considered all issues
raised on appeal, whether or not specifically addressed in this opinion, we affirm
the district court‘s decision.
AFFIRMED.
2
At best, the evidence in this case might support a res ipsa loquitur instruction.
However, the ―doctrine of res ipsa loquitur is not applicable where it is necessary to
show that defendant was guilty of active or gross negligence, willful misconduct,
recklessness, or the like.‖ E. T. Tsai, Comment Note, Applicability of Res Ipsa Loquitur
Where Plaintiff Must Prove Active or Gross Negligence, Willful Misconduct,
Recklessness, or the Like, 23 A.L.R.3d 1083 (1969); see also Kulish v. Ellsworth, 566
N.W.2d 885, 892 (Iowa 1997) (―Because the discussion above establishes that these
defendants are immune from suit for any claims of negligence, plaintiffs are necessarily
barred from pursuing their claims under a res ipsa theory.‖).
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