Lowe v. California League of Prof. Baseball

• Decision Date: 01 July 1997
• Docket Number: No. E017721,E017721
• Citation: 65 Cal.Rptr.2d 105,56 Cal.App.4th 112
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 5283, 97 Daily Journal D.A.R. 8521 John LOWE, Plaintiff and Appellant, v. CALIFORNIA LEAGUE OF PROFESSIONAL BASEBALL, et al., Defendants and Respondents.

Page 105

65 Cal.Rptr.2d 105

56 Cal.App.4th 112, 97 Cal. Daily Op. Serv. 5283,

97 Daily Journal D.A.R. 8521

John LOWE, Plaintiff and Appellant, v. CALIFORNIA LEAGUE OF PROFESSIONAL BASEBALL, et al., Defendants and Respondents.

No. E017721.

Court of Appeal, Fourth District, Division 2, California.

July 1, 1997.

Review Denied Sept. 17, 1997.

[56 Cal.App.4th 113] Marjorie A. Seapy, Claremont, for Plaintiff and Appellant.

Roberts and Morgan, and Arthur K. Cunningham, Riverside, for Defendants and Respondents.

OPINION

McDANIEL, Associate Justice. ^*

John Lowe (Plaintiff) was seriously injured when struck on the left side of his face by a foul ball while attending a professional baseball The Quakes, at their home games, feature a mascot who goes by the name of "Tremor." He is a caricature of a dinosaur, standing seven feet tall with a tail which protrudes out from the costume. Tremor was performing his antics in the stands just along the left field foul line. Tremor was behind plaintiff and had been touching him with his (Tremor's) tail. Plaintiff was thereby distracted and turned toward Tremor. In the next moment, just as plaintiff returned his attention to the playing field, he was struck by a foul ball before he could react to it.

game. The game was being played at "The Epicenter," home field of the Rancho Cucamonga Quakes, Class "A," minor league baseball team.

Very serious injuries resulted from the impact. As a result, the underlying action was commenced against the California League of Professional Baseball and Valley Baseball Club, Inc., which does business as the Quakes (defendants). The case was resolved in the trial court by summary judgment entered in favor of defendants.

Defendants were able to persuade the trial court, under the doctrine of primary assumption of the risk (Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696), that defendants owed no duty to plaintiff, as a spectator, to protect him from foul balls. Such rationalization was faulty. Under Knight, defendants had a duty not to increase the inherent risks to which spectators at professional baseball games are regularly exposed and which they assume. As a result, a triable issue of fact remained, namely whether the Quakes' mascot cavorting in the stands and distracting plaintiff's attention, while the game was in progress, constituted a breach of that duty, i.e., constituted negligence in the form of increasing the inherent risk to plaintiff of being struck by a foul ball.

Thus, the trial court improperly granted the motion for summary judgment and it must be reversed accordingly.

SYNOPSIS OF TRIAL COURT PROCEEDINGS

In the action, filed after his injury, plaintiff's complaint was styled in a single count, a refreshing example of clear and concise pleading. The key charging allegations were contained in two paragraphs: "5. On said date and some time after the stated time and after the seventh inning, 'Tremor' the Quake's mascot, came up into the stadium in the area where plaintiff and his group were seated. Tremor was accompanied by an usher as he performed antics and entertained the crowd. Tremor is a person who wears a dinosaur costume with a long protruding tail. As John Lowe sat in his assigned seat, he was facing forward and looking toward the playing field when suddenly, and without warning or his consent, his right shoulder was touched by the tail of Tremor's costume. As he turned to his right to see who, or what, was touching him, baseball play had resumed and a batted ball, believed to be a foul ball, hit the plaintiff on the left side of his face breaking multiple facial bones. [p] 6. The Left Terrace Section, where the plaintiff was seated with his group, is located northwesterly of the left field foul ball territory, and in the direct line of foul balls passing west of the third base line. Tremor's antics and interference, while the baseball game was in play, prevented the plaintiff from being able to protect himself from any batted ball and foreseeably increased the risks to John Lowe over and above those inherent in the sport."

After an unsuccessful demurrer, defendants noticed a motion for summary judgment. ¹

The notice contained no recitation of the grounds for the motion. However, as required by statute, defendants filed a separate statement of undisputed facts. Without the accompanying tabulation here of evidence for such statement of facts, they included: "1. On July 26, 1994, at approximately 7:05 p.m., plaintiff was in attendance at a baseball game between the Rancho Cucamonga Quakes and the San Bernardino Spirit at the Epicenter baseball facility and was seated in an area of As evidentiary support for their motion, defendants filed the declaration of Joseph M. Gagliardi, president of the California League of Professional Baseball. Such declaration pointed out that seven of the ten teams in the California League have mascots. Among other things, the Gagliardi declaration stated, "[m]ost of the mascots have taken on a specific caricature such as Disney/Warner Brothers animations for each team. They are personable in their duties and responsibilities and try to make as much contact with the public to keep fan interest active. Fans have become accustomed to having the mascots entertain them. The mascots perform their routines nightly on the playing field and in the public seating area. [p] While the clubs encourage the mascots' interaction, especially with the young children so that they are comfortable at a ballpark game situation, the mascots' activities include keeping the fans informed, generating fan participation in promotions/advertisements, and helping with crowd control. Greeting the customer is an essential part of the ball club's public relations efforts." Defendants also filed extended excerpts of plaintiff's deposition, supported by the authenticating declaration of James L. Price, counsel for plaintiff. These deposition excerpts provide an insight into how plaintiff was injured:

the left terrace. [p] 2. Plaintiff was struck by a foul ball by the Quakes mascot, Tremor [sic ], who was entertaining in the area where plaintiff was seated. [p] 3. The plaintiff had been to the Epicenter on at least two previous occasions. [p] ... [p] 7. Plaintiff Lowe had witnessed foul balls being hit into the stands on many occasions. [p] 8. Plaintiff Lowe had personally witnessed at least one fan being struck by a foul ball. [p] 9. Plaintiff Lowe did not request a protected seat. [p] 10. The Epicenter did have protected seats.... [p] 11. Many of the teams in the California League of Professional Baseball have mascots. [p] 12. The mascots have become an intrical [sic ] part of the game.... [p] 14. The Epicenter stadium has approximately 2500 seats which are protected by screens."

"Q ... Where was the mascot at the time that the foul ball was hit?

"A Directly behind me.

. . . . .

"Q How long had the mascot been directly behind you at the time you were hit?

"A I would say probably two minutes.

"Q Was the mascot standing in the same place for that long?

"A He was moving around back and forth. But whatever he was doing, he was doing it directly behind my seat.

"Q So he was at the row or in the row behind your row?

"A Our row of seats backed up to an aisle. He was standing in the aisle directly behind my seat.

. . . . .

"Q And at the time that you were hit, the mascot was standing behind your row of seats in the aisle?

"A Yes.

"Q Did any part of the mascot's costume or person touch you before you were hit?

"A Yes.

"Q And what or how were you touched by this mascot?

"A With his tail.

"Q When did that occur in relationship to when you were hit by the ball?

"A Well, during that approximate two-minute span he was doing his act. And I felt this bam, bam, bam, on the back of my head and shoulders, and I turned around to see what he was doing....

"Q You felt something on your shoulders?

"A Right.

"Q How do you know it was the tail that tapped you on the shoulder?

"A I turned around and looked.

. . . . .

"Q And when you turned around and looked, what did you see?

"A Well, I noticed that he was doing his antics to the crowd that was in the immediate area. And I saw that as he was turning his body, his tail was hitting me.

"Q Is that something that you actually saw or is that something that you assumed that the tail was hitting you?

"A No, I saw the tail.

. . . . .

[p] "I could see the stump of the tail hitting me....

. . . . .

"Q All right. Were you annoyed by the mascot's tail tapping you on the shoulder?

"A Initially, no, but as it continued, it was a little bothersome.

. . . . .

"Q Where were you looking at the moment the ball was hit?

"A I had just turned my head towards the field as the ball arrived.

"Q And in terms of timing, was it almost instantaneous that you turned your head to the field and got hit?

"A Yes.

. . . . .

"Q Where were you looking immediately before you turned your head toward the field?

"A Up at Tremor.

. . . . .

"Q And at that time you were looking at Tremor immediately before turning your head back to the field and getting hit, was the reason that you were looking at Tremor that his tail had just tapped you on the shoulder again and you turned around and looked?

"A Yes.

. . . . .

"Q Were you eating or drinking anything at that time?

"A I was not eating anything, there was no drink in my hand...."

Plaintiff filed opposition to the motion for summary judgment. Such opposition included a response to defendants' undisputed statement of facts. As to defendants' statement No. 2, namely that "plaintiff was struck by a foul ball by the Quakes mascot, Tremor, who was entertaining in the area where plaintiff was seated," plaintiff disputed it. In direct response, plaintiff declared, "[p]laintiff's complaint is mis-stated [sic ]. Plaintiff was touched by the mascot, Tremor, without warning or consent, after baseball play resumed. Plaintiff was hit in...