Kelly v. McCarrick

• Citation: 841 A.2d 869,155 Md. App. 82
• Decision Date: 05 February 2004
• Docket Number: No. 2114,2114
• Parties: Tara KELLY, et al. v. His Eminence, Theodore Cardinal McCARRICK, Catholic Archbishop of Washington, and his Successors in Office, A Corporation Sole, d/b/a The Catholic Archdiocese of Washington, D.C., et al.
• Court: Court of Special Appeals of Maryland

841 A.2d 869

155 Md. App. 82

Tara KELLY, et al. v. His Eminence, Theodore Cardinal McCARRICK, Catholic Archbishop of Washington, and his Successors in Office, A Corporation Sole, d/b/a The Catholic Archdiocese of Washington, D.C., et al.

No. 2114, Sept. Term, 2002.

Court of Special Appeals of Maryland.

February 5, 2004.

Alan S. Albin, Cedar Knolls, NJ, for appellant.

William Carter (Kevin M. Murphy, Carr Maloney, PC, on the brief), Washington, DC, for appellee.

Panel: JAMES R. EYLER, ADKINS, CHARLES E. MOYLAN JR. (Retired, specially assigned), JJ. ADKINS, Judge.

Softball requires each athlete to take the field ready to perform the plays that are necessary for the team to win. One thing that veteran ballplayers and fans know, long before the opening pitch, is that there are dangers on the base path. That is illustrated by this case of 13 year old St. Mark's Parish second baseman Tara Kelly, whose ankle fractured when a St. Joseph's Parish player slid into her as she made the tag.

Seeking to revive their $10 million lawsuit, Tara and her parents, Daniel and Terry Kelly, ask us to reverse the grant of summary judgment in favor of all five defendants/appellees: St. Mark's Parish; St. Joseph's Parish; Phillip John Welch, manager of the St. Joseph's team; the Catholic Archdiocese of Washington, D.C. (the Archdiocese); and the Catholic Youth Organization (CYO). Restated, the Kellys' contentions are that the Circuit Court for Prince George's County erred in disregarding evidence supporting inferences that Tara was injured as a result of:

I. "Coaching" failures in training players and coaches to safely execute the slide and tag-out play, and in matching players of uneven skill;

II. Failure to equip the diamond with "breakaway bases" that might have prevented Tara's injury; and

III. Improper care of Tara in the aftermath of the on-field collision.

As to the first and second liability theories, we agree with the circuit court that the Kellys assumed the risks of Tara's injury, as well as the risk of playing on a field with stationary bases. As to the third theory, we see nothing in the summary judgment record to suggest that the injuries for which the Kellys seek compensation resulted from any breach of the defendants' duty of care to Tara after her injury. We shall affirm the judgments.

FACTS AND LEGAL PROCEEDINGS

The Injury

Tara was hurt in an April 22, 1997 fast pitch softball game at St. Joseph's Parish. She was playing second base for the St. Mark's Parish 7th and 8th grade team in a CYO league. In the bottom of the first inning, with no outs, St. Joseph's was already beating St. Mark's badly. According to Tara, Amy G., a good player for St. Joseph's, hit the ball, rounded first, and headed for second base. Amy slid into the base feet first, colliding with Tara, who made the tag for the first out of the inning.¹

Tara's right foot had been positioned on the back corner of the stationary base, which was anchored by a stake into the ground. She placed it along the side toward first base, but left most of the base open along the base path, so that she did not obstruct Amy's path. In the collision, Tara's ankle was severely fractured.

Terry Kelly, Tara's mother, was watching the game. She had just arrived and was in the process of setting up her chair when she looked out on the field, just in time to see Amy G. sliding into second. Tara and Terry both described Amy's slide as curved instead of straight. Although Tara's ankle was not bleeding and the break was not compound, it was immediately identified as a serious injury. As Tara recalled it, after a just "couple of minutes," she was carried from the field by Coach Welch from St. Joseph's and a woman whom she did not know.²

Terry Kelly, in an effort to get Tara to the hospital as quickly as possible, brought her car up next to the field. Tara was carried five or six more steps to the car, then driven by her mother to the emergency room at the National Naval Medical Center in Bethesda.³ After three surgeries, Tara has intermittent pain and some activity limitations as a result of the injury.

The Litigation

The Kellys filed a nine count complaint against CYO, St. Joseph's Parish, its coach, and St. Mark's Parish, as well as the Archdiocese of Washington, under whose supervision the parishes and their staffs work. The counts included negligence allegations that the defendants failed to train players and coaches how to safely play softball, failed to ensure that Tara's team was not scheduled to play against teams with more skilled players, failed to equip the field with breakaway bases that may have prevented Tara's injury, and failed to ensure that coaches and volunteers were trained to handle emergencies involving game injuries. Extensive discovery ensued.

Tara testified at her deposition that she loved playing sports. She regularly followed and watched professional baseball. Tara's grandfather was a professional baseball player, and her father occasionally played softball. She knew "the rules of softball," including that she had to tag the runner with the ball to make the out. She did not "remember ever being told it, but [she] knew the rule" because she had "kind of grown up with baseball" and "the rules are very similar" to softball.

Before her injury, Tara had played CYO softball the three previous years, and Tball before that. She "[m]ainly" played second base and shortstop. She liked softball and considered herself a good player. She was on St. Mark's "A" team in both her seventh and eighth grade years. That year, the St. Mark's team was one of the average teams in the league, not the worst, but not the best.

Later, in an affidavit opposing summary judgment, Tara declared that she was

never trained by [her] softball coach, Mrs. Brady, in the "rules of softball" and did not know the actual rules of softball. This is apparent since I thought I had to keep my foot on the base in order to tag out a runner. It is clear that I was given the wrong instruction on how to tag out a runner sliding into second while avoiding the runner.

Daniel Kelly, Tara's father, testified at his deposition that he was not at the game when Tara was injured. But he was the St. Mark's Parish softball commissioner at that time. He had watched some of the St. Mark's practices, and hit ground balls for the players. He recounted that one of St. Mark's coaches taught Tara how "to get a foot and one corner" of the base. Tara also learned "[t]o reach into the base to tag out and there should be no problem." Tara's coach, Patricia Brady, testified at her deposition that she considered the CYO league to be for "developmental instruction," "participation," and "fun." She described Tara as "one of the better skilled" players on the St. Mark's team.

With respect to instruction and training, Brady explained that she "work[ed] with [her] infield girls .... a lot[,]" and specifically coached Tara in how to play second base. Brady's daughter, who played second base on her high school softball team, also "had come ... at least on two occasions specifically to work with Tara" on fielding at second base.

One constant and transcending lesson was "not to block the base," which Brady taught to avoid injury. In addition, Brady coached Tara "to stand either in front of the base, behind the base, or ... on the side of the base where the runner would not be coming." When asked whether she "train[ed] her, in terms of how she would know where the runner was going to be coming," Brady replied, "No, I did not. I don't think that's a skill that needs to be trained." In her view, the "element of risk" involved in fielding against a sliding base runner was a matter that "everybody knows" as a matter of "common sense[.]"

Thomas Manco, director of CYO programs, testified in deposition that, "[u]nder the rules, the batter/runner has the right to reach the base without obstruction by the fielder." The rules in use for the CYO league stated that "[r]unners are never required to slide," but also provide that a base runner is required to "legally attempt to avoid a fielder in the immediate act of making a play on her." Sliding is one common way to do so.

Phillip Welch coached both the St. Joseph's team and a "select" team in a different competitive league called the "Marylanders." The Marylanders team was not affiliated with CYO or any of the parishes. Tara recalled that one of her St. Mark's teammates and another of her St. Mark's classmates played for the Marylanders. After she was injured, Tara also came to believe that Amy G. was on the Marylanders; Welch, however, testified that she was not on his Marylanders team that year.

Welch instructed his players to slide "[a]ny time there is a play at the bag that they are going to," for "[s]afety reasons." He pointed out that "[t]he alternative is the two girls running into each other, versus sliding into the base." Welch told his team that sliding "was mandatory" because "National High School Federation rules require you to slide into a bag ... at any time during a play at any bag. You cannot go in and run over a player at a bag or you're automatically thrown out of the game." He "spent hours on sliding drills[,]" telling the players that "the sliding was for their safety, as well as the other player." He taught them to go into the bag with their lead foot, which in Amy's case was her right foot. Welch told her that she should "[a]lways" aim for the bag. He "[n]ever" told his players that they were allowed to try to knock the fielder down.

The Circuit Court for Prince George's County granted summary judgment on all counts to all defendants. As to the negligent training and mismatch claims, the court concluded that "a person of normal intelligence, in a similar position as [the Kellys], would clearly have comprehended the danger" in tagging out a sliding base runner. Citing Tara's four years in softball and her "normal intelligence," the court...