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Friday, August 07, 2009
Comment on Crespin v. Albuquerque Baseball Club and the Sentencing of Minor League Pitcher Julio Castillo

I think that the Crespin court is correct in its assertion in paragraph 13 that “the question before us concerns the concept of breach of duty.” New Mexico is one of the many states to adopt a form of comparative negligence, yet courts still draw on assumption of risk in baseball foul ball (or in this case a fair ball hit into a picnic area during batting practice) cases. The court looked at “the baseball rule” that basically immunizes a defendant if a screened area behind home plate is properly maintained and fans are provided access to such seating. In my class I ask students what they think about requesting that they be allowed to purchase a ticket for a protected screen area. Most of them laugh at the idea that these choice seats must be provided by the team if a fan says that it is the team’s responsibility in discharging this duty to allow the fan to purchase a ticket for an area often allocated to season ticket holders.

The majority concluded that “[w]hile the baseball rule may have made sense during the era of the all-or-nothing contributory negligence doctrine, it no longer does. Under our present tort system, we discern no public policy reason to justify bestowing immunity on the business of baseball.” (Paragraph 24). The court rejected summary judgment for the Albuquerque Isotopes and the City of Albuquerque, but they did grant summary judgment for the Houston Astros and Dave Matranga, the New Orleans Zephyrs’ player who hit the ball into the picnic area. The Zephyrs are the Astros’ AAA farm team. In holding that summary judgment is appropriate for Matranga, the court did write that an intentional act toward a spectator might change the outcome.

Judge Roderick Kennedy in his dissent argued that “the issue of whether a party owes a duty of care to another is a matter of law, not fact, and such conclusions are clearly left in the hands of New Mexico’s courts.” (Paragraph 44) Kennedy marshals a substantial list of sources to support his position that “the baseball rule” should remain the law of New Mexico.

Newspaper articles covering the decision noted an appeal by the Isotopes and the City of Albuquerque to the New Mexico Supreme Court.

Prior to reading the opinion, I was inclined toward the dissent’s position. Now I want to think through the idea of a complete bar to recovery in all cases where fans are injured outside of the screened area behind home plate. The majority opinion covers a good deal of precedent so this case might be quite useful in a class covering tort issues. I applaud the court for properly, in my opinion, looking at the case as one focused on duty and breach of duty. This is the appropriate analysis under a comparative negligence scheme that should not keep some type of assumption of risk doctrine alive. The real issue in this factual scenario seems to be the level of duty owed toward fans sitting in a picnic area in left field prior to the beginning of the game.

Last year in a game between the Dayton Dragons and the Peoria Chiefs, Chiefs pitcher Julio Castillo tried to fire a ball into the dugout during an on-field fight. The throw went high and hit 45-year-old Chris McCarthy in the head causing a concussion. Castillo was arrested and charged with felonious assault. Earlier this week, Castillo was found guilty of the assault and sentenced to 30 days in jail by Montgomery County Common Pleas Court Judge Connie Price. Castillo, from the Dominican Republic, could face an immigration problem with his work visa. Castillo is pitching for Boise this year.


I have no problem conceptually with the ALB decision because of the specifics: picnic area is open pre-game and no warning given that BP was starting.

Result is that people stay in the area without being made aware of the change of situation, and therefore increased risk of not paying attention to actions 100+ yards away.

Same with Castillo: I have a reasonable risk of being hit by a foul line drive and therefore bring a glove or pay extra attention: part of the normal course of events, and therefore a known risk. I don't have a reasonable expectation that a pitcher will hurl a ball toward the stands/dugout (or, indeed, that a pitcher lacks the control that much that he will miss his target) without it being a matter of regular play.

(If you're sitting behind first base when Steve Sax is playing second, you should know the risk--as Jay Johnstone snarkily pointed out.)

The exemption for normal course of activities seems intact; it's the specific change of circumstances without notice that seems applicable.

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Blogger london -- 8/09/2009 9:47 AM  

Ed, thanks for the comments. This foul ball subject is like a bad penny: never goes away. Anyway, a few of my own observations: 1) Did anyone else get the feeling that really this was a victory for plaintiff's lawyers in New Mexico and that the 4 year old's current condition was almost irrelevant? 2) Did anyone else find the court's opinion, while well written, seemed to focus (subliminally) more on who was in a better position to pay than whether there was a duty? 3) I hope that the state of New Mexico legislature takes this out of the hands of these judicially activist judges and creates an immunity statute similar to Colorado, Illinois, etc. Why keep sending this kind of stuff to a jury if you don't have to? Why keep having judges in these foul ball cases prolong the litigation and continue to promote juries and comparative negligence when they (i.e., "we") don't have to give them that authority? 4) While I had a lot more to say, it is sad that the dissent's references seemed better than the majority's in terms of depth on the subject. Sadly, one of the more recent cases the majority actually mentioned (Loughran) focused on the dissent in Loughran rather than the majority holding and dicta in that Pennsylvania case.

Anonymous Anonymous -- 8/10/2009 11:13 AM  

As to the point raised by anonymous in number one, I actually wonder how much sympathy that plaintiffs received in this case because of the severe nature of the injury to a four-year-old boy.

Blogger Ed Edmonds -- 8/11/2009 4:48 PM  

Ed: please tell us how the boy (now 10?) is doing if you know. Thanks.

Anonymous Anonymous -- 8/11/2009 6:40 PM  

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