Woman sues little leaguer for getting hit with baseball..

[jtgain]

http://news.yahoo.com/nj-woman-hit-b...nlwYWdl;_ylv=3

Short summary: 11 year old kid warming up in the bullpen uncorks a wild pitch that hits this woman in the face. She sues him for $150k

As most of you know I'm in law school. Isn't this Torts 101 no duty, assumption of risk. Dismissed. Plus sanctions against the attorney who filed it?

[The Great Sun Jester]

Not a lawyer.

Proper defendant, or at least a more appropriate co-defendant would be the coach/park official.

Assumption of risk would depend on where she was. In the bleachers vs. wandering aimlessly near warming-up players.

Sanctions against plaintiff attorney? Unlikely, but it would depend on just how frivilous and groundless the suit was--and F&G has a pretty tough standard.

[Tom Tildrum]

What lawsuits are out there are generally against stadium owners, not players. Typically, stadium owners have been shielded from liability as long as they put up some screens in the areas most likely to be hit by a foul ball. A recent decision in New Mexico applied a more general negligence standard, however, i a case involving a plaintiff sitting in a picnic area adjoining the ballpark. The fact that the picnic area was set up with seats facing away from the diamond was arguably significant. Had this plaintiff sued the ballpark owner, ther might be a case, although the NM decision is an outlier.

A case against a player seems even tougher. Even exercising due care, wild pitches are going to happen, and the law will be even more forgiving when the pitcher is a child. If the plaintiff has some evidence of intentional horseplay among the pitchers, then maybe there's a case, but if this was just an accident that occurred during a normal warmup, I think it would be hard to win.

[cmosdes]

The lawsuit alleges the kid purposely hit her with the wild pitch. If that can be proven, I don't see why the plaintiff wouldn't have a case even if they were at a ball park.

I realize the plaintiffs aren't suing the league because the league doesn't have any insurance to cover this, but it would seem to me that if the league had setup stands right behind the bullpen in such a way that a wild pitch had a decent chance of hitting someone, then I can see where there would be a case against the league.

After learning about the infamous McDonald's coffee case, I have since learned that no case is as obvious as they appear.

[jtgain]

Originally Posted by cmosdes

The lawsuit alleges the kid purposely hit her with the wild pitch. If that can be proven, I don't see why the plaintiff wouldn't have a case even if they were at a ball park.

But she has to plead facts with particularity. In other words, she can't simply make a conclusory statement that he hit her with a baseball intentionally. She has to allege some fact to show his intent. (Admittedly this wouldn't take much and could even be an outright lie).

IOW, I can't sue you claiming that your right hand touched my shoulder and therefore I accuse you of battery. Battery requires that I give some type of showing or inference that you intentionally touched my right shoulder and it was in a harmful or offensive manner.

[jtgain]

Originally Posted by Tom Tildrum

What lawsuits are out there are generally against stadium owners, not players. Typically, stadium owners have been shielded from liability as long as they put up some screens in the areas most likely to be hit by a foul ball. A recent decision in New Mexico applied a more general negligence standard, however, i a case involving a plaintiff sitting in a picnic area adjoining the ballpark. The fact that the picnic area was set up with seats facing away from the diamond was arguably significant. Had this plaintiff sued the ballpark owner, ther might be a case, although the NM decision is an outlier.

I think there was a decision in Pittsburgh from old Three Rivers Stadium when a patron was hit in the concourse area at the concession stand (I guess it was a freak foul ball that hit a seat and careened under the overhang and rattled into the walkway). The judge ruled that a fan assumes a risk of getting hit with a ball in the stands, but not in the concourse.

But this is contrary to both of those cases. This woman was in the stands at a Little League game. Even if the kids were goofing off, I would contend that a reasonable fan should know that little kids do that and she still assumed the risk.

[BottledBlondJeanie]

You have much to learn, grasshopper.

Sanctions?

[kayaker]

The lawsuit filed April 24 alleges Migliaccio's errant throw was intentional and reckless, "assaulted and battered" Lloyd. . .A second count alleges Migliaccio's actions were negligent and careless through "engaging in inappropriate physical and/or sporting activity" near Lloyd.

The kid is eleven years old. FFS.

[oreally]

Originally Posted by jtgain

This woman was in the stands at a Little League game. Even if the kids were goofing off, I would contend that a reasonable fan should know that little kids do that and she still assumed the risk.

Key words. Dude, I'm all like so get with the 21st century. Frivolous lawsuits and non-accountability are all the rage. Go for the free money! The courts are such a joke you stand a good chance. I'm disappointed she didn't go for a cool mil. Amateur.

[jtgain]

Originally Posted by BottledBlondJeanie

You have much to learn, grasshopper.

Sanctions?

Fair enough. So educate me. Why aren't sanctions appropriate for filing a lawsuit in bad faith? Against an 11 year old?

I only say this because this type of case was the first one in the Torts Hornbook regarding Assumption of Risk and No Duty.

[Dewey Finn]

IANAL, but I assume that she expects that the pitcher's parents and ultimately their homeowners' insurance company will be on the hook for the claim.

[kayaker]

Originally Posted by Dewey Finn

IANAL, but I assume that she expects that the pitcher's parents and ultimately their homeowners' insurance company will be on the hook for the claim.

Why the pitcher? The catcher's errant throw hit the woman.

Catcher Matthew Migliaccio was 11 years old at the time and was warming up a pitcher.

[jtgain]

Originally Posted by Dewey Finn

IANAL, but I assume that she expects that the pitcher's parents and ultimately their homeowners' insurance company will be on the hook for the claim.

Under which theory? If it is intentional conduct, insurance won't pay. If it's negligence they shouldn't pay because of the assumption of risk argument.

[Dewey Finn]

Originally Posted by kayaker

Why the pitcher? The catcher's errant throw hit the woman.

Sorry for misidentifying the kid as a pitcher.

Originally Posted by jtgain

Under which theory? If it is intentional conduct, insurance won't pay. If it's negligence they shouldn't pay because of the assumption of risk argument.

Again, IANAL, but if the kid's actions were intentional and the insurance won't pay, I assume that she expects the parents to do so.

[aruvqan]

Originally Posted by cmosdes

The lawsuit alleges the kid purposely hit her with the wild pitch..

If he hit her deliberately then it wasn't a wild pitch ... just sayin.

[BottledBlondJeanie]

Originally Posted by jtgain

Fair enough. So educate me. Why aren't sanctions appropriate for filing a lawsuit in bad faith? Against an 11 year old?

I only say this because this type of case was the first one in the Torts Hornbook regarding Assumption of Risk and No Duty.

Next post. Editing issues.

[AK84]

Its a newspaper report and newspaper reports generally are not reliable. In this case it seems iffy as per the facts stated that liability exists wrt to the player, possibly for the league and or stadium owner/occupier.

I would not be surprised if the suit itself has several defendants and the kid has been added simply as a pro forma party. That would be not uncommon.

Originally Posted by jtgain

As most of you know I'm in law school. Isn't this Torts 101 no duty, assumption of risk. Dismissed. Plus sanctions against the attorney who filed it?

Clearly there is a duty of care and certainly several persons had it. Assumption of risk is a factual issue here rather than a legal one.

I am a lawyer. Not an NJ qualified one.

[BottledBlondJeanie]

That wasn't really your original question. But, one, was she in the stands? It says she was at a picnic table. Is there a colorable claim that assumption of risk shouldn't apply in this instance given facts? Probably. Enough to get by sanctions or even a summary judgment.

Two, as a practical matter, we don't really file many motions for sanctions. That's a good way to piss off the judge and have other lawyers gun for you. There, but for the grace of Og, go you.

Finally, I assume New Jersey allows a claimant to plead contradicting/alternative theories of recovery. The intentional claim is probably included to avoid dealing with the assumption of risk in an initial pleading. As you directly pointed out, the negligence claim is to get the insurance carrier involved. So, the carrier hires an attorney to defend the case. But, as you know, the attorney's client calls the shots. The family doesn't want to deal with the intentional conduct case alone without the insurance company footing the bill. So, it creates a divisive relationship. The attorney does not want to plead the client out of coverage. Therefore, no motion for sanctions or even, possibly a summary judgment is every pleaded.

Cost of defense settlement, maybe more if there's a unique factual distinction to argue. This assumes there's not some wacky twist to NJ liability or coverage law.

[BottledBlondJeanie]

Sorry for editing issues. First paragraph should read, 'or possibly even a motion for summary judgment.'

[johnpost]

Originally Posted by jtgain

I think there was a decision in Pittsburgh from old Three Rivers Stadium when a patron was hit in the concourse area at the concession stand (I guess it was a freak foul ball that hit a seat and careened under the overhang and rattled into the walkway). The judge ruled that a fan assumes a risk of getting hit with a ball in the stands, but not in the concourse.

no that was at the concussion stand and that possibility should have been expected.

[jtgain]

Originally Posted by BottledBlondJeanie

That wasn't really your original question. But, one, was she in the stands? It says she was at a picnic table. Is there a colorable claim that assumption of risk shouldn't apply in this instance given facts? Probably. Enough to get by sanctions or even a summary judgment.

Two, as a practical matter, we don't really file many motions for sanctions. That's a good way to piss off the judge and have other lawyers gun for you. There, but for the grace of Og, go you.

Finally, I assume New Jersey allows a claimant to plead contradicting/alternative theories of recovery. The intentional claim is probably included to avoid dealing with the assumption of risk in an initial pleading. As you directly pointed out, the negligence claim is to get the insurance carrier involved. So, the carrier hires an attorney to defend the case. But, as you know, the attorney's client calls the shots. The family doesn't want to deal with the intentional conduct case alone without the insurance company footing the bill. So, it creates a divisive relationship. The attorney does not want to plead the client out of coverage. Therefore, no motion for sanctions or even, possibly a summary judgment is every pleaded.

Cost of defense settlement, maybe more if there's a unique factual distinction to argue. This assumes there's not some wacky twist to NJ liability or coverage law.

Sadly, because of clerking this summer and last summer, I understand that this is how it works in real life. But of course I'm going to change the world (not really) and when I do, lawyers will be sanctioned for this kind of conduct.

The picnic table was another case posted by another poster. This lady was in the freaking stands.

Originally Posted by AK84

Clearly there is a duty of care and certainly several persons had it. Assumption of risk is a factual issue here rather than a legal one.

I don't have the torts book in front of me, but spectator at a sporting event getting hit by a wayward ball/puck was case #1 for assumption of risk and judgment as a matter of law. And it further stated that in modern times assumption of risk is under "no duty" instead of contributory negligence since states don't like the latter anymore. In other words, a stadium owner, a player, a coach, etc. has "no duty" to protect a spectator from an errant ball.

Originally Posted by Dewey Finn

Again, IANAL, but if the kid's actions were intentional and the insurance won't pay, I assume that she expects the parents to do so.

At common law, parents are not responsible for their children's torts. Usually negligent supervision is plead, but I can't see how that would work in this case. I don't know about NJ, but WV has a statutory provision that says parents are responsible up to $5k for their kids' intentional torts.

[Bricker]

Originally Posted by BottledBlondJeanie

That wasn't really your original question. But, one, was she in the stands? It says she was at a picnic table. Is there a colorable claim that assumption of risk shouldn't apply in this instance given facts? Probably. Enough to get by sanctions or even a summary judgment.

Two, as a practical matter, we don't really file many motions for sanctions. That's a good way to piss off the judge and have other lawyers gun for you. There, but for the grace of Og, go you.

Finally, I assume New Jersey allows a claimant to plead contradicting/alternative theories of recovery. The intentional claim is probably included to avoid dealing with the assumption of risk in an initial pleading. As you directly pointed out, the negligence claim is to get the insurance carrier involved. So, the carrier hires an attorney to defend the case. But, as you know, the attorney's client calls the shots. The family doesn't want to deal with the intentional conduct case alone without the insurance company footing the bill. So, it creates a divisive relationship. The attorney does not want to plead the client out of coverage. Therefore, no motion for sanctions or even, possibly a summary judgment is every pleaded.

Cost of defense settlement, maybe more if there's a unique factual distinction to argue. This assumes there's not some wacky twist to NJ liability or coverage law.

Pardon me for sticking my nose where I have zero experience, but couldn't the family just file a boilerplate answer to avoid a default judgement and let the plaintiff hang herself trying the intentional conduct?

[BottledBlondJeanie]

Jtgain, from your linked article " Lloyd was sitting at a picnic table near a fenced-in bullpen when she was hit with the ball."

Bricker, not sure I'm following, but it's my problem due to dos, solamente dos margaritas. If both the intentional and negligence claims were brought, I'd expect a general denial, if allowed in NJ, but the insurance company would expect a summary judgment. The actual client would not likely want one due to coverage reasons, but the case will take 5,000 to 10,000 just to get to trial on a straightforward issue, and that's conservative

[Really Not All That Bright]

Originally Posted by jtgain

At common law, parents are not responsible for their children's torts. Usually negligent supervision is plead, but I can't see how that would work in this case. I don't know about NJ, but WV has a statutory provision that says parents are responsible up to $5k for their kids' intentional torts.

New Jersey has also repealed the common law rule, but only for property damage: N.J. Stat. § 2A:53A. Interestingly, NJ has also created a specific statutory assumption-of-risk doctrine for professional baseball games, but not for other sporting events (including amateur baseball games): N.J. Stat. § 2A:53A-46.

[jtgain]

Originally Posted by Bricker

Pardon me for sticking my nose where I have zero experience, but couldn't the family just file a boilerplate answer to avoid a default judgement and let the plaintiff hang herself trying the intentional conduct?

From my (very) limited experience, they simply don't do that. If I understand your question, you are wondering why the insurance company doesn't file for summary judgment for the negligence claim and let the family fend for themselves on the intentional claim.

That would make sense, but it's just not done. They have a duty to defend until intentional conduct is shown (by a verdict) and they take that duty seriously and don't try to screw the client in that manner. I say "screw" but agree with you that it would be a legitimate move from a business perspective. They may want to insulate themselves from a bad faith tort claim.

[Farmer Jane]

I'd like to throw a baseball at her face.

[carnivorousplant]

Originally Posted by Farmer Jane

I'd like to throw a baseball at her face.

I suspect she could make more money having balls chucked at her in a carnival than from the lawsuit.

[Farmer Jane]

(:

I feel sorry for that boy's family. It costs money to defend a lawsuit.

[Really Not All That Bright]

Originally Posted by jtgain

From my (very) limited experience, they simply don't do that. If I understand your question, you are wondering why the insurance company doesn't file for summary judgment for the negligence claim and let the family fend for themselves on the intentional claim.

That would make sense, but it's just not done. They have a duty to defend until intentional conduct is shown (by a verdict) and they take that duty seriously and don't try to screw the client in that manner. I say "screw" but agree with you that it would be a legitimate move from a business perspective. They may want to insulate themselves from a bad faith tort claim.

There is no duty to defend here. The kid and parents are unlikely to have any sort of insurance coverage for this sort of occurrence. Dewey's post suggests that the parents' homeowners' policy will cover it, but homeowners' policies are generally limited to coverage of things which occur on the covered property.

The ballpark's liability policy will not include a duty to defend anyone other than the ballpark itself and its employees. Probably the little league team or league will have coverage, including a duty to defend provision, but its terms may limit coverage and duty to defend to the league/team and their volunteers.

[jtgain]

Originally Posted by Really Not All That Bright

Dewey's post suggests that the parents' homeowners' policy will cover it, but homeowners' policies are generally limited to coverage of things which occur on the covered property.

Whaaa? Homeowners/renters insurance typically covers negligent acts committed anywhere in the world, except in an automobile or on other property owned by the insured.

[Justin_Bailey]

The husband is also suing the kid because he feels his wife can no longer provide her bedroom duties. Let that sink in for a minute.

Unless this woman has this kid on tape saying "Watch me hit that stupid woman in the face!," they should be laughed out of court. Preferably to a "Blow me!" chorus from onlookers.

[Really Not All That Bright]

The husband is also suing the kid because he feels his wife can no longer provide her bedroom duties. Let that sink in for a minute.

Consortium claims are fairly typical where the lead plaintiff is a married person. It's just a way to build up exposure and add settlement value.

Originally Posted by jtgain

Whaaa? Homeowners/renters insurance typically covers negligent acts committed anywhere in the world, except in an automobile or on other property owned by the insured.

Sorry, I should have been more clear. Yes, the personal liability portion of the policy covers negligent acts off property, but not intentional torts.