The Counsellor's Corner


            The long standing legal doctrine known as "assumption of the risk" is exactly what it sounds like.  If you go ice skating and fall down while skating at the rink, you will not prevail if you bring a law suit against the rink owner for you have assumed the risk of falling and the attendant risk of injury.

            One might think this is pretty clear and straightforward; however, in what is an early candidate for a spot on my top 10 list of the most ludicrous cases of 1998, a four-foot seven-inch, 60 pound little leaguer sued the Saddleback Little League in Orange County because he got hit by a pitch.  Try to picture this:  You have a pitcher and his eight fielders, you have a batter standing at the plate, the pitch hits the batter in the face and breaks the batter's nose.  In the old days, there might be a bit of a melee as the batter's teammates might rush from the dugout and go after the pitcher, however, that would be the worst case scenario.  Unfortunately, that is no longer the case as 11 year old Ryan Balthazor, most likely prodded by his parents, hired an attorney.  Young Ryan claimed that since the pitcher had displayed some wildness, the manager of the opposing team was negligent in not removing him from the game.  I'm not making this up!  Ryan further claimed that the Little League should be forced to provide helmets with face guards for the Little Leaguers and as this incident took place during dusk, Ryan further argued that all Little League games must be played during sunlight.

            This is pathetic.  I can't imagine this was the boy's idea, I'm just thinking about the father and/or mother who must have thought, "Let's sue."  Why does this seem to be the answer to everything these days?  This is Little League, this is baseball, this is kids enjoying their youth, getting together and as all of you who have every played in or watched a baseball game know, if you don the uniform and the cap and bring the piece of lumber up to the plate with you waiting for the pitcher to pitch, his control is not always going to be right on the mark and you may get plunked.  This is baseball! 

            I love seeing baseball dissected in legal verbiage, as the court did in this case, stating that "accuracy in pitching, especially from a teen-ager, has never been a prerequisite to pitch."  With this ruling, the Appellate Court followed a previous ruling by the State Supreme Court in 1992 in which the Court held that someone playing in a touch football game could not sue for injuries sustained in the game. 

            I can't help but wonder what values Ryan's parents are trying to teach him.  It's tough enough being a kid when anything that causes you to stand out in a crowd will often place you as the butt of jokes for the foreseeable future, but now poor Ryan has to walk around being known as the kid who got hit by a pitch, an event that has probably occurred over a million times in all of the baseball games played all over the world; however, he is the one who didn't take it like a man, or woman, or person; he is the one who sued the Little League.

            Contrast this to another recent assumption of the risk case stemming out of an incident at a Family Fitness Center in San Diego County.  In this instance, Carlos Leon was minding his own business lounging on a bench in the sauna room when suddenly the bench collapsed and Mr. Leon, a medical student hoping for a career as a doctor, found his head making contact with the floor.  In this instance despite the fact that Mr. Leon had signed a membership contract which included an assumption of the risk clause, the Appellate Court quite appropriately decided that Mr. Leon could not have been contemplating giving up his right to sue for brain damage due to a negligently maintained sauna room.  The Court distinguished between injuries caused due to over exertion as compared to this case.  As the Court put it, "No Family Fitness patron can be charged with realistically appreciating the risk of injury from simply reclining on a sauna bench."  Compare this type of injury to something someone brings on oneself, such as lifting weights without a spotter (or if you happened to catch that Beavis and Butthead episode, having Beavis, or was it Butthead?, as your spotter).  The Court was satisfied that the bench had been "properly used" by Mr. Leon, whatever that means, and analogized the collapsing bench to be akin to the Fitness Center's ceiling falling on Mr. Leon's head.

            In both of these cases, justice was done.  Mr. Leon has every right to recover while young Ryan and/or his parents are doing their best to take baseball out of the same sentence as apple pie and if there are many more instances such as this, we might well start looking for a new national past time.

                                                                       * * * * *

            Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger.  Mr.Unger has obtained his doctorate in psychology and writes a bi-monthly column on legal and psychological issues.



902 words including bio infor