Wattenbarger v. Cincinnati Reds, Inc., C016042

• Decision Date: 23 September 1994
• Docket Number: No. C016042,C016042
• Citation: 28 Cal.App.4th 746,33 Cal.Rptr.2d 732
• Court: California Court of Appeals Court of Appeals
• Parties: Jeffrey WATTENBARGER, et al., Plaintiffs and Appellants, v. CINCINNATI REDS, INC., et al., Defendants and Respondents.

Page 732

33 Cal.Rptr.2d 732

28 Cal.App.4th 746

Jeffrey WATTENBARGER, et al., Plaintiffs and Appellants, v. CINCINNATI REDS, INC., et al., Defendants and Respondents.

No. C016042.

Court of Appeal, Third District, California.

Sept. 23, 1994.

Roddick, Mulligan & Hernandez, Mulligan & Hernandez, Michael M. Hernandez and Darcel M. Mulligan, Larkspur, for plaintiffs and appellants.

Glahn & Hirschfield, Darrell Glahn, Stockton, for defendants and respondents.

PUGLIA, Presiding Justice.

Plaintiffs appeal from a judgment of dismissal following an order granting defendants' motion for summary judgment. Plaintiffs seek damages for an arm injury suffered by plaintiff Wattenbarger during a major league baseball tryout conducted by defendants. The trial court concluded plaintiffs' claim is barred by the doctrine of assumption of risk. We shall reverse.

I

Defendant Cincinnati Reds, Inc. (Reds) owns and operates a major league baseball team. Defendant Jeffrey Zimmerman is the Reds' Central and Northern California Supervisor of Scouting.

On June 28, 1990, Zimmerman supervised a "tryout" for the Reds in Lodi, California, in which players aged 16 to 21 were invited to participate. Plaintiff Jeffery Wattenbarger, who at the time was 17 years old, read a notice of the tryout in a local newspaper and attended. ¹ Having pitched for his high school baseball team the last two seasons, plaintiff wanted was to become a pitcher for the Reds.

Upon his arrival at the tryout, plaintiff signed a waiver of liability form which included a space for the signature of a parent or guardian. Plaintiff's mother was not present and did not sign the form. Plaintiff was nevertheless permitted to participate.

After the participants signed in, they were given an orientation talk explaining the procedures for the day. During this talk, the participants were asked if they had any injuries and pitchers were asked when they had last thrown. Injured players were not permitted to participate fully in the tryout.

After the orientation, participants were timed in a 60-yard dash. Balls were then hit to infielders and outfielders at their respective positions and they fielded them and made throws. All of this was observed by the Reds' representatives in attendance who would, on occasion, provide advice to individual players on proper techniques.

The last part of the tryout was conducted under conditions simulating an actual game. The pitchers, including plaintiff, each took a turn throwing to several batters. Before his turn, plaintiff threw a number of warmup pitches to get his arm ready. On his third pitch to a batter, plaintiff felt his arm "pop" but experienced no particular pain. He stepped off the pitcher's mound and informed the Reds' personnel, including Zimmerman, that his arm had popped. Receiving no response, plaintiff returned to the mound and threw another pitch. ² He immediately experienced severe pain in his arm and quit pitching.

A subsequent medical examination revealed a portion of the bone and tendons in plaintiff's arm had been pulled away due to the force of contraction of his tricep muscle during pitching.

Plaintiffs initiated this action against the Reds and Zimmerman claiming negligence in permitting plaintiff to throw a fourth pitch after they knew or should have known this would cause severe injury. Defendants moved for summary judgment claiming, inter alia, plaintiff's injury is one inherent in the sport of baseball and hence they owed him no duty of care. The trial court granted the motion and entered a judgment of dismissal.

II

"A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. To succeed, the defendant must conclusively negate a necessary element of the plaintiff's case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46, citations omitted.)

The pleadings identify the issues to be considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055, 229 Cal.Rptr. 374.) The defendant must present facts to negate each claim as framed by the complaint or to establish a defense. Only then must the plaintiff demonstrate the existence of a triable, material issue of fact. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065, 225 Cal.Rptr. 203.)

The complaint states a cause of action for negligence. Plaintiffs allege defendants "negligently allowed [plaintiff] to continue to pitch when they knew or ought to have knowwn [sic ] that to continue would cause irreparable harm." According to the complaint, such conduct "was the proximate cause of the injuries and damages alleged." ³

The essential elements of a cause of action in negligence are: "(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as a proximate or legal cause of the resulting injury." (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 732, pp. 60-61 and cases cited therein, italics in original.) As a practical matter, these elements are interrelated, as the question whether an act or omission will be considered a breach of duty or a proximate cause of injury necessarily depends upon the scope of the duty imposed. (See generally, Hart and Honore, Causation in the Law (2d ed. 1985) p. 94.)

In their motion for summary judgment, defendants argued the type of injury suffered by plaintiff is a risk inherent in the game of baseball and plaintiff assumed such a risk when he voluntarily participated in the tryout.

In two companion cases, Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight ) and Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724 (Ford ), the Supreme Court explained assumption of risk is of two types, primary and secondary. Secondary assumption of risk is the traditional variety where a defendant breaches a duty of care owed to the plaintiff but the plaintiff nevertheless knowingly encounters the risk created by the breach. Secondary assumption of risk is not a bar to recovery, but requires the application of comparative fault principles. (Knight, 3 Cal.4th at pp. 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports. (Knight, at p. 316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Primary assumption of risk is a complete bar to recovery. (Id. at pp. 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity. The overriding consideration in the application of this principle is to avoid imposing a duty which might chill vigorous participation in the sport and thereby alter its fundamental nature. (Knight, at pp. 318-319, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

For example, in Knight the defendant, a participant in a touch football game, knocked over the plaintiff, another participant, and then stepped on her hand and injured it. (Id. at p. 300, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The court held the defendant owed no duty to the plaintiff under these circumstances: "[I]n the heat of an active sporting event like baseball or football, a participant's normal energetic conduct often includes accidentally careless behavior.... [E]ven when a participant's conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule." (Knight, at pp. 318-319, 11 Cal.Rptr.2d 2, 834 P.2d 696, italics in original.)

In Ford, the court held the driver of a boat towing a water-skier owed no duty to the skier who was injured when his head struck a limb extending over the water. In rejecting the plaintiff's argument that the rule announced in Knight should not apply to a noncompetitive, cooperative sport such as waterskiing, the court explained: "Even when a water-skier is not involved in a 'competitive' event, the skier has undertaken vigorous athletic activity, and the ski boat driver operates the boat in a manner that is consistent with, and enhances, the excitement and challenge of the active conduct of the sport. Imposition of legal liability on a ski boat driver for ordinary negligence in making too sharp a turn, for example, or in pulling the skier too rapidly or too slowly, likely would have the same kind of undesirable chilling effect on the driver's conduct that the courts in other cases feared would inhibit ordinary conduct in various sports." (Ford v. Gouin, supra, 3 Cal.4th at p. 345, 11 Cal.Rptr.2d 30, 834 P.2d 724.)

In both Knight and Ford, the court held negligent conduct of a participant in an active sport is an inherent part of the game. Certain sports have inherent risks which do not involve the want of ordinary care by other participants. Skydiving is an obvious example. In snow skiing, the risk of falling on steep slopes or uneven terrain is an inherent part of the sport. " 'Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees and other forms of natural growth or debris; collisions with ski lift towers and their components, with...