BRIAN LEGGERT V RICK REWEKANT
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STATE OF MICHIGAN
COURT OF APPEALS
BRIAN LEGGERT,
UNPUBLISHED
July 16, 1999
Plaintiff-Appellee,
v
RICK REWEKANT and KELDAN
INCORPORATED, d/b/a SOUTH LYON HOTEL,
No. 204658
Oakland Circuit Court
LC No. 96-515791 NO
Defendants-Appellants.
Before: Doctoroff, P.J., Markman and J.B. Sullivan*, JJ.
MARKMAN, J. (concurring in part and dissenting in part).
Although I agree with the majority that summary disposition was properly granted with respect
to defendant South Lyon Hotel, I respectfully disagree that summary disposition should be reversed with
respect to defendant Rewekant. Therefore, I would affirm the trial court in all respects.1
I have no disagreement with the majority’s formulation of the law of torts arising in the course of
sporting activities. Although participants in sporting activities are assumed to be aware of the hazards
“inherent” in such activities, and to have consented to the risk of injuries arising out of such hazards,
Higgins v Pfeiffer, 215 Mich App 423, 425; 546 NW2d 645 (1996), those acting negligently or
recklessly on the sporting field are not immunized from all responsibility for the consequences of their
conduct. However, I would construe more broadly than my colleagues what constitutes an “inherent”
hazard of competitive softball. In my judgment, collisions between infielders and baserunners, even
collisions occurring outside the basepath, are an “inherent” hazard of the game.2 Since most collisions
outside the basepath between an infielder and a baserunner will entail some degree of negligence, or
even recklessness, on the part of the baserunner, the majority’s analysis would seem to suggest that
summary disposition is generally inappropriate where an injury arises in this circumstance.
I understand the ‘sporting activity’ exception differently. While not all negligent or reckless
conduct occurring on the sporting field is exempt from legal recourse, at least some such conduct is.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
-1
The ‘sporting activity’ exception does not only immunize incidents on the sporting field which are
inadvertent or unavoidable; indeed, there would be little need for the exception if this were the case
since there would be little recourse in the first place under traditional tort law for injuries arising out of
such incidents. Rather, in recognizing that individuals are more likely to act in an aggressive and
vigorous manner-- sometimes inevitably in an overly-aggressive and vigorous manner-- in the course of
athletic competition than at other times, the ‘sporting activities’ exception is intended to insulate from
lawsuit some forms of behavior that would not be insulated if they occurred outside the boundaries of
athletic competition. Some athletic injuries which might have been avoided through more prudent
behavior on the part of a competitor will fall within the scope of the ‘sporting activities’ exception,
including some resulting from instances of negligent or reckless behavior. If this were not the case, then
virtually any injury arising out of a foul in basketball, a penalty in football or ice hockey, or an illegal
pitch in baseball, would potentially expose a competitor to tort liability. At the very least, the injured
party would be entitled to have the matter heard before a jury or other factfinder.
The injury suffered here by plaintiff, in my judgment, was a typical competitive softball or
baseball injury and was a part of the “inherent” hazards risked by a competitor of these games. The
“Official rules of Softball”, see note 2 supra, expressly anticipate the specific kind of physical contact
that led to plaintiff’s injury and set forth specific sanctions when such contact occurs under the most
egregious circumstances. While I am not prepared to say that no basepath collision can ever lead to
tort liability, I am persuaded that there was nothing about the instant collision so exceptional that the
general rule of separation between sporting event and tort action ought to be vitiated here.
To the extent that plaintiff’s suit is predicated, not upon negligence or recklessness, but upon the
intentional or purposeful conduct of defendant, there is simply insufficient evidence to sustain this suit.
Plaintiff himself has stated in this regard:
I don’t know what he was thinking. I mean, I don’t know, I don’t know if h was
e
confused in what he was doing . . . . I’m not saying he did it intentionally or he didn’t
do it intentionally. Let’s put it that way. He just crushed me. It’s like a quarterback
getting hit. You get crushed, you’re on your way down.
Beyond this, there was not a single witness among the players on either team, or the spectators of the
game, who indicated that defendant Rewekant’s conduct was either intentional or purposeful-- or
indeed even reckless. Moreover, the game’s umpire, who testified that a player may be ejected if he
tries to hurt another player or if his actions are “flagrant . . . in the eyes of the umpire,” did not eject
defendant from the game. He stated instead, “I don’t think he was intentionally going after [plaintiff] but
again I don’t remember.” The umpire also acknowledged that he could have “ejected a player even
after the game was over.”3 Neither the umpire nor plaintiff (nor plaintiff’s team) ever reported the
incident to league authorities. While not every instance of ejectionable conduct will expose an offender
to tort liability, the corollary would seem more likely to be true, i.e., that non-ejectionable conduct will
only very rarely subject an offender to tort liability.4
Although I appreciate that a fine line may sometimes have to be drawn between sporting injuries
that can and cannot be legally redressed, I believe that the majority would intrude the tort system too
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deeply into the sporting process. Absent either evidence that plaintiff’s injury arose out of a hazard that
was not truly an “inherent” part of the sport of competitive softball, or that the injury occurred as the
result of intentional or purposeful behavior on defendant’s part, plaintiff’s cause of action should not be
sustained. Because, in my judgment, there are no genuine issues of material fact outstanding with regard
to either of these matters, I would affirm the trial court.
/s/ Stephen J. Markman
1
I also disagree with the majority that the trial court reached the “right result for the wrong reason” with
respect to defendant South Lyon Hotel. Because I agree with the court’s analysis concerning defendant
Rewekant, I also agree with its derivative analysis concerning defendant South Lyon Hotel.
2
The “Official Rules of Softball,” presented to this Court by plaintiff, state:
When the defensive player has the ball and the runner remains on his feet and
deliberately, with great force, crashes into the defensive player, EFFECT: the runner is
out, the ball is dead, and the other runner must return to the last base touched at the
time of the interference. NOTE: if the act is determined to be flagrant, the offender shall
be ejected.
Plaintiff apparently deduces from this rule that an injury may be legally actionable if it occurs in the
course of a “flagrant” collision. However, the rule is equally susceptible to an interpretation by this
Court that even a collision occurring with “great force” and done “deliberately” is contemplated as a
part of softball, i.e., as a hazard “inherent” in softball. Indeed, even if the collision is “flagrant,” the
“NOTE,” at least arguably, is consistent with the notion that ejection, rather than tort action, is the
appropriate sanction for such conduct. In contrast and to recall other notable on-the-field baseball
injuries, one would hardly expect the “official rules” of the game to specify the appropriate sanctions for
one ballplayer clubbing another over the head with a baseball bat, or to expressly prohibit a pitcher from
purposely throwing a baseball at the head of an unsuspecting player practicing his swing in the on-deck
circle.
3
Plaintiff’s injury occurred on the final play of the game between his and defendant’s teams.
4
Obviously, the jury, not the umpire or referee, is the final factfinder in matters of legal negligence or
recklessness. However, in the context of injuries arising out of a sporting contest, the assessment of the
propriety of a player’s conduct by a reasonably experienced umpire or referee would seem to be a
relevant consideration. The umpire here was highly experienced in this activity, having umpired between
300-350 games alone in the season in which plaintiff was injured.
-3
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