Higgins v. Pfeiffer

• Decision Date: 09 February 1996
• Docket Number: Docket No. 169855
• Citation: 215 Mich.App. 423,546 N.W.2d 645
• Parties: Jesse HIGGINS, Plaintiff-Appellant, v. Brian PFEIFFER, David McCullough and Robert McCullough, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 645

546 N.W.2d 645

215 Mich.App. 423

Jesse HIGGINS, Plaintiff-Appellant, v. Brian PFEIFFER, David McCullough and Robert McCullough Defendants-Appellees.

Docket No. 169855.

Court of Appeals of Michigan.

Submitted July 18, 1995, at Detroit.

Decided Feb. 9, 1996, at 9:15 a.m.

Released for Publication April 29, 1996.

Lakin, Worsham & Victor, P.C. (by Larry A. Smith), Southfield, for Jesse Higgins.

Still, Nemier, Tolari & Landry, P.C. (by Mark R. Johnson), Farmington Hills, for Brian Pfeiffer.

Morrison, Morrison & Finley (by Gregory W. Finley), Detroit, for David and Robert McCullough.

Before: MICHAEL J. KELLY, P.J., and SAWYER and D.R. FREEMAN, ^* JJ.

SAWYER, Judge.

In this personal injury action, plaintiff Jesse Higgins and defendants Brian Pfeiffer and David and Robert McCullough were members of an amateur baseball team participating in an organized league. After plaintiff, along with other fielders, had warmed up on the playing field, he went to the dugout to await the start of the game while the opposing team went through its warm-up routine.

Defendant Pfeiffer, the pitcher, continued to warm up, but yielded the pitcher's mound to the opposing team, which was apparently the "home team." Pfeiffer continued to warm up on the sideline, throwing toward the dugout area where his teammates were sitting.

The field in question has no bullpen for warming up pitchers. The dugout is protected by a fence that is at least four feet high toward the outfield but higher toward home plate. Plaintiff chose to sit at the outfield end of the dugout. Plaintiff also seems to have been paying insufficient attention to the activities on the field.

As it came closer to game time, Pfeiffer, to test his pitching arm, began throwing fastballs, and the catcher, David McCullough, eventually signaled for a rising fastball. Pfeiffer threw one, but it "got away from him," went over the catcher's head, and although Pfeiffer or someone yelled, "Heads up!" and two of plaintiff's teammates managed to duck, plaintiff was struck in the eye and suffered severe injuries. Robert McCullough was the acting coach and is charged with negligence for allowing his starting pitcher to warm up by throwing toward the dugout.

The Wayne Circuit Court granted defendants' motion for summary disposition. Plaintiff appeals and we affirm.

Plaintiff contends the circuit court erred, noting that the assumption of risk doctrine for sports-related injuries was abolished with the decision in Carey v. Toles, 7 Mich.App. 195, 151 N.W.2d 396 (1967). That does not mean, however, that every case goes to the jury. Participants in sporting activity are assumed to be aware of the hazards inherent in the playing of the game and to have consented to the risk of injury inherent in the contest, other than breaches of contest rules designed to protect the safety of the players as opposed to the integrity of the contest. Overall v. Kadella, 138 Mich.App. 351, 357 ff, 361 N.W.2d 352 (1984).

There are surprisingly few sports injury cases from around the country involving baseball. Carey was a baseball case, involving an unorganized contest in which the plaintiff, a minor, was struck in the face with a bat, thrown by a player who had, under the "house rules" under which the game was being played, made an "out," and who should not therefore have been running toward first base at all, and who accordingly had no occasion to throw his bat. Carey is thus within the more general rule of Overall.

One case from a sister state is, however, directly on point. In O'Neill v. Daniels, 135 A.D.2d 1076, 523 N.Y.S.2d 264 (1987), the plaintiff was injured "when he was struck in the eye by a softball thrown by the defendant, a teammate, during 'warm-up' activities prior to an amateur softball game." Upholding summary disposition, the appellate court applied a legal standard that seems indistinguishable from Michigan jurisprudence:

"Traditionally, the participant's conduct was conveniently analyzed in terms of the defensive doctrine of assumption of risk. With the enactment of the comparative negligence statute, however, assumption of risk is no longer an absolute defense (see, CPLR 1411, eff. Sept. 1, 1975). Thus, it has become necessary, and quite proper, when measuring a defendant's duty to a plaintiff to consider the risks assumed by the plaintiff [citations omitted]" (Turcotte v. Fell, 68 N.Y.2d 432, 437-438 [510 N.Y.S.2d 49, 502 N.E.2d 964 (1986) ]. The duty of care owed to plaintiff "must be evaluated by considering the risks plaintiff assumed ... and how those assumed risks qualified defendants' duty to him" (Turcotte v. Fell, supra, at 438, [510 N.Y.S.2d 49, 502 N.E.2d 964].)

It is clear that plaintiff's participation in the game "warmup" was voluntary, and thus our concern is only with the scope of his consent. It is well established that participants may be held to have consented, by their participation, to injury-causing events which are known, apparent or reasonably foreseeable, but they are not deemed to have consented to acts which are reckless or intentional [citations omitted]. The question of whether the consent was an informed one includes consideration of the participant's general knowledge and experience in the activity.

We conclude that plaintiff understood and accepted the dangers of the sport, including those resulting from carelessness during "warmup" activities, and accordingly plaintiff's complaint was properly dismissed. [135 A.D.2d at 1077, 523 N.Y.S.2d 264.]

That is consistent with Hunt v. Thomasville Baseball Co., 80 Ga.App. 572, 56 S.E.2d 828 (1949), where the court held that a spectator at a professional baseball game who chose a seat in an unprotected portion of the grandstand could not assert liability for injury resulting from a thrown ball during the warm-up before the game. The Court noted that the warm-up phase was a necessary part of every such game and that preliminary practice, in which many balls are employed, is a necessary incident to the playing of the game itself and hence an inherent risk.

Here, plaintiff chose a position in the dugout at the less-protected end and failed to pay attention to the activities on the field. Had plaintiff been seated, or taken a dugout position closer to home plate, it would seem he would not have been exposed to injury, because the ball either would have had to strike the fence or its trajectory would have carried it over plaintiff's head. The injury sustained was within the scope of plaintiff's consent implicit in the game and attendant circumstances,...