- David Foreman
Nonprofit Sports Association Negligence Standard
Grandpa Morris was happily sipping his coffee, anticipating his 9-year-old grandson’s little league baseball game. He was sitting with his wife in the bleachers behind a low fence. Suddenly Gramps felt something smash into his left eye. A player had lofted a ball over the fence and into the stands while warming up with another player. Can Morris succeed in litigation against the little league association? Or does he assume the risk of his injury? In other words, does a 71-year-old grandfather assume the risk that while he is sitting where he is supposed to be sitting, the coaches would allow 9-year-olds to warm up a stone’s throw away? Does Grandpa Morris assume the further risk that one of them will make a wild throw into the bleachers? Or can he pursue damages for his permanently damaged eye?
The answer is that it depends. These cases are very fact-intensive. Here we have two boys playing catch in an area where spectators were sitting, instead of in a faraway area like the outfield. And there was no netting, only a short fence! The coaches were aware of the unprotected spectators sitting on the bleachers. This would seem enough to prove negligence against the league, a nonprofit association.
The league though could assert a heightened standard of care under Title 42 Pa.C.S.A. Section 8332.1.
Title 42 Pa.C.S.A. Section 8332.1 - Manager, coach, umpire or referee and nonprofit association negligence standard
(a) General rule. Except as provided otherwise in this section, no person who, without compensation and as a volunteer, renders services as a manager, coach, instructor, umpire or referee or who, without compensation and as a volunteer, assists a manager, coach, instructor, umpire or referee in a sports program of a nonprofit association, and no nonprofit association, or any officer or employee thereof, conducting or sponsoring a sports program, shall be liable to any person for any civil damages as a result of any acts or omissions in rendering such services or in conducting or sponsoring such sports program, unless the conduct of such person or nonprofit association falls substantially below the standards generally practiced and accepted in like circumstances by similar persons or similar nonprofit associations rendering such services or conducting or sponsoring such sports programs, and unless it is shown that such person or nonprofit association did an act or omitted the doing of an act which such person or nonprofit association was under a recognized duty to another to do, knowing or having reason to know that such act or omission created a substantial risk of actual harm to the person or property of another. It shall be insufficient to impose liability to establish only that the conduct of such person or nonprofit association fell below ordinary standards of care.
(1) Nothing in this section shall be construed as affecting or modifying the liability of such person or nonprofit association for any of the following:
(i) Acts or omissions relating to the transportation of participants in a sports program or others to or from a game, event or practice.
(ii) Acts or omissions relating to the care and maintenance of real estate unrelated to the practice or playing areas which such persons or nonprofit associations own, possess or control.
(2) Nothing in this section shall be construed as affecting or modifying any existing legal basis for determining the liability, or any defense thereto, of any person not covered by the standard of negligence established by this section.
(c) Assumption of risk or contributory fault
Nothing in this section shall be construed as affecting or modifying the doctrine of assumption of risk or contributory fault on the part of the participant.
As used in this section the following words and phrases shall have the meanings given to them in this subsection:
"Compensation." The term shall not include reimbursement for reasonable expenses actually incurred or to be incurred or, solely in the case of umpires or referees, a modest honorarium.
"Nonprofit association." An entity which is organized as a nonprofit corporation or nonprofit unincorporated association under the laws of this Commonwealth or the United States or any entity which is authorized to do business in this Commonwealth as a nonprofit corporation or unincorporated association under the laws of this Commonwealth, including, but not limited to, youth or athletic associations, volunteer fire, ambulance, religious, charitable, fraternal, veterans, civic, county fair or agricultural associations, or any separately chartered auxiliary of the foregoing, if organized and operated on a nonprofit basis.
"Sports program." Baseball (including softball), football, basketball, soccer and any other competitive sport formally recognized as a sport by the United States Olympic Committee as specified by and under the jurisdiction of the Amateur Sports Act of 1978 ( Public Law 95-606, 36 U.S.C. § 371 et seq.), the Amateur Athletic Union or the National Collegiate Athletic Association. The term shall be limited to a program or that portion of a program that is organized for recreational purposes and whose activities are substantially for such purposes and which is primarily for participants who are 18 years of age or younger or whose 19th birthday occurs during the year of participation or the competitive season, whichever is longer. There shall, however, be no age limitation for programs operated for the physically handicapped or mentally retarded.
42 Pa.C.S. § 8332.1
1986, May 12, P.L. 183, No. 57, § 1, imd. Effective.
This statute requires multiple layers of proof. First, it applies only to nonprofit sports programs for minors. It also requires participation of volunteer coaches. Finally, it requires a showing that the league’s misconduct included acts and/or omissions undertaken while it and/or its agents, servants, members, employees and workmen had a duty to protect the plaintiff from harm and while knowing or having reason to know that such acts and/or omissions created a substantial risk of actual harm to the plaintiff.
This article will address another issue, the standard of care. The bolded language above is the focus. Grandpa must show that Defendant's misconduct fell substantially below the standards generally practiced and accepted in like circumstances by similar persons or similar non-profit associations rendering such services or conducting or sponsoring such sports programs.
This statute clearly requires more than ordinary negligence to establish liability. But willful/wanton conduct, gross negligence or recklessness is not required since the statute doesn’t use those terms. Contrast Pennsylvania’s statute with New Jersey’s, N.J.S.A. 2A:62A-6, which states:
Nothing in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training program established by the league or team with which he is affiliated.
See Byrne v. Boys Baseball League, 564 A.2d 1222 (N.J. Super. 1989).
Massachusetts and North Dakota have similar statutes that apply to non-profit sports associations. Massachusetts requires a showing of gross negligence. MASS. GEN. LAWS ANN. ch. 231, §§ 85V(ii), 85W (West Supp. 1991) North Dakota restricts claims to those growing out of willful misconduct or gross negligence. N.D. CENT. CODE § 32-03-46(2)(a) (Supp. 1991)
Our legislature has given us an amorphous, in-between standard that gives the court much discretion on where to draw the line when assessing the facts. There are no cases defining the standard and the legislative history shows a lack of clarity. So there is a lot of wiggle room that demands detailed fact-by-fact analysis.
The use of the word “substantially” obviously raises the burden of proof above ordinary negligence, but by how much? Synonyms for “substantially” are “considerably”, “significantly”, “to a great/large extent”, “markedly”, and “appreciably”. One could argue all that is required is that the league was slightly more than ordinarily negligent.
The Pennsylvania Supreme Court has weighed in on spectator injuries at sporting events. Jones v. Three Rivers Management Corp, 483 Pa. 75, 394 A. 2d 546 (1978). Jones was struck in the eye by a ball hit during batting practice. This occurred at Three Rivers Stadium, Pittsburgh, on the facility’s inaugural day, as Jones was walking to the "concession" concourse. The jury found negligence and awarded her $125,000. The Superior Court reversed and remanded for entry of judgment notwithstanding the verdict. After reviewing the layout of the interior concourses vis a vis the playing field, the Supreme Court reversed and reinstated the jury verdict. The Court explored the “no duty” rule to determine if the stadium had breached a duty it owed Ms. Jones.
In baseball, a sport often referred to as our `national pastime,' it has been held that the spectator as a matter of law assumes the risk of being hit by a fly ball. (Quinn v. Recreation Park Assn., 3 Cal. 2d 725, 46 P.2d 144; Brown v. San Francisco Ball Club, 99 Cal. App. 2d 484, 222 P.2d 19.) But when a spectator is hit by a flying baseball bat the doctrine of assumption of the risk is not applied. (Ratcliff v. San Diego Baseball Club, 27 Cal. App. 2d 733, 81 P.2d 625.) The difference in the treatment of these two baseball spectators is explained by the fact that it is a matter of `common knowledge' that fly balls are a common, frequent and expected occurrence in this well-known sport, and it is not a matter of `common knowledge' that flying baseball bats are common, frequent or expected.
Jones, supra, citing Goade v. Benevolent and Protective Order of Elks, 213 Cal. 2d 183, 28 Cal. Rptr. 669 (1963).
It seems then that "no-duty" rules, apply only to risks which are "common, frequent and expected." But it would not apply to conditions not inherent in the sports activity.
Patrons of baseball stadiums have recovered when injured by a swinging gate while in their grandstand seats, Murray v. Pittsburgh Athletic Co., 324 Pa. 486, 188 A. 190 (1936), by tripping over a beam at the top of a grandstand stairway, Martin v. Angel City Baseball Assn., 3 Cal. App. 2d 586, 40 P.2d 287 (1935), and by falling into a hole in a walkway, under a grandstand, used to reach refreshment stands, Louisville Baseball Club v. Butler, 298 Ky. 785, 160 S.W.2d 141 (1942). In these cases, just as in the "flying baseball bat" case, Ratcliff v. San Diego Baseball Club, 27 Cal. App. 2d 733, 81 P.2d 625 (1938), the occurrence causing injury was not "a common, frequent and expected" part of the game of baseball. Therefore, there is no bar to finding the defendant negligent. Further, in such cases, there is no burden on the plaintiff to introduce evidence with respect to established *86 custom of baseball stadiums. Compare Schentzel, supra (plaintiff in "inherent risk" case must demonstrate deviation from established custom to avoid dismissal or directed verdict).
“Only when the plaintiff introduces adequate evidence that the amusement facility in which he was injured deviated in some relevant respect from established custom will it be proper for an ‘inherent-risk’ case to go to the jury.” Id.
The “no duty” line of cases typically revolve around the fact that spectators at a baseball game can expect to be hit by foul balls. This is an inherent, common and expected risk of watching a ball game. However, our fact pattern is different. Just like the Three Rivers case, Grandpa was injured by something unexpected. Players should NOT be warming up where an errant throw could strike a spectator. Everyone knows that a batted ball is inherently uncontrollable. But spectators don’t know that a warm up area will be placed where someone watching the game can be hit by an errant toss.
It’s similar to an injury caused by a ripped protective screen. If a foul ball broke through the screen and hit a spectator, liability would not be a challenge. This is not an inherent risk of attending a baseball game.
Like in any negligence lawsuit, discovery is key. One must find out what safety rules the league has in place and if the league violated any of its own rules. One must find out the quantity and quality of safety guidance the league gave the coaches.
I would argue:
a. Defendant failed to properly implement a safety rule by letting the children warm up close to spectators without netting. It should have required that they warm up in the outfield or some other area far from the fans.
b. A spectator is a business invitee entitled to the highest standard of care who was sitting where he was supposed to sit, as opposed to a player who can expect to have to avoid errant throws.
c. Grandpa was hit by a throw, not a batted ball, which is relatively unexpected.
These factors push us toward a lesser standard of care, closer to negligence and farther from recklessness.
The league can counter that they cannot control every child who feels like chucking a ball around. But assuming this is where kids normally warm up and it is foreseeable that a badly thrown ball would hit someone, the case is winnable.
One question is whether you need to hire an expert for a case like this. It makes common sense not to ever let players warm up in an area where unsuspecting spectators could be injured. So perhaps not. But you might consider contacting a little league or high school baseball coach in your area as an inexpensive option.
Here is an article about spectator injuries at baseball games.