Lead Opinion
This appeal arises from an action by a participant in a softball practice against a coparticipant for head injuries suffered from a flying bat when the defendant released his bat while hitting a pitched ball. We primarily consider the application of the contact-sports exception and the sufficiency of evidence to support a finding of recklessness. The district court granted summary judgment for the defendant. We transferred the case to the court of appeals, who affirmed the decision of the district court. We granted further review.
I. Background Facts and Prior Proceedings.
Benjamin • Feld and Luke Borkowski were teammates on an intramural slow-pitch sixtéen-inch softball team, composed of male high school students, during the summer of 2005. Feld and Borkowski were experienced players, having played various levels of the game throughout their childhoods. The team assembled to play games against other teams and to practice among themselves. Practice primarily consisted of batting practice, which allowed each player the opportunity to swing at approximately twenty pitches before the next player rotated into the batter’s position. The team members who were not batting or pitching played various field positions, except catcher, and attempted to catch or retrieve the balls.
During a batting practice on June 2, 2005, Feld was playing first base while Borkowski batted. Home plate and first base were sixty feet apart, the customary arrangement in slow-piteh softball. Bor-kowski, a right-handed hitter, swung at pitch after pitch using an aluminum bat. He was known as a strong hitter. After about a dozen pitches, Borkowski hit a high fly ball into foul territory on the third base side of the field. A split second after the bat made contact with the ball, it left Borkowski’s hands. Most of the team watched the fly ball sail over the head of the third baseman as the bat, almost simultaneously, flew directly down the first baseline, in a horizontal helicopter motion, toward Feld. Borkowski yelled Feld’s nickname in an effort to warn him of the flying bat. The warning was ineffective, and the bat struck Feld in the forehead. Feld suffered a severe injury to his left eye.
Feld and his parents filed a negligence action against Borkowski. The lawsuit sought damages for medical expenses and other associated damages. Borkowski denied the claims of negligence in his answer to the petition and asserted assumption of the risk as an affirmative defense. He also claimed softball was a contact sport, and no liability could be imposed because his conduct was not reckless. Following discovery, Borkowski moved for summary judgment on the grounds liability was limited under the contact-sports exception and the facts of the incident failed to generate a jury question that his conduct was reckless.-
In resistance to the motion for summary judgment, the Felds first argued that softball is not a contact sport, as a matter of law, and therefore did not qualify for the exception to the rule of negligence. In the alternative, the Felds claimed Borkowski’s actions in releasing the bat constituted reckless conduct. In support of this argument, the Felds presented expert testimony from Ed Serváis, head baseball coach at Creighton University. Serváis is an experienced college coach and a former baseball player. He testified he had never seen a right-handed batter hit a ball left of third base and lose control of a bat by releasing it in the direction of first base. Further, Serváis testified the only way a right-handed batter could hit a first baseman with a bat in such a manner is if the batter “followed through and rotated around after striking the foul ball and deliberately threw the bat or let go of the bat in such a way that it was flung with considerable force through the air towards the first base position.” Thus, the Felds claimed, even if the contact-sports exception to negligence applied, an issue of material fact existed as to whether Borkowski
The parties disputed the manner in which the bat left Borkowski’s hands after he hit the pitch. Borkowski maintained the bat slipped from his sweaty hands on the hot June day, he did not rotate his body completely around before releasing the bat, and he did not intentionally throw the bat towards first base. Members of the team, including Borkowski, referred to the incident as “a freak accident.”
Following a hearing, the district court granted Borkowski’s motion for summary judgment. The court found softball qualified as a contact sport because it is an “athletic activity] which involve[s] the general risk of physical injury to the participants,” and liability could only be based on reckless or intentional conduct. The court concluded Borkowski’s actions were not outside the normal course of playing softball because any misconduct would have occurred while swinging at a pitch during softball practice. Although the court recognized Feld may not have accepted the risk of being struck by a bat at first base, it concluded the risks were not specific to the type of injury he received, but instead included all inherent dangers in the normal course of playing softball. The district court also found the contact-sports exception barred the claim against Borkowski because the Felds failed to allege in their petition that Borkowski’s conduct was reckless or deliberate.
The Felds filed an appeal from the district court’s order granting summary judgment. They claimed the district court erred in finding softball to be a contact sport. Additionally, they claimed the summary judgment facts generated a jury question on whether the conduct of Bor-kowski was reckless. Finally, they claimed the contact-sports exception was inapplicable to the particular circumstances of this case because those circumstances showed Feld did not accept the risk of the particular injury he sustained. In the end, the Felds believed the case should be tried under a negligence standard, yet based solely on the argument that softball was not a contact sport.
We transferred the case to the court of appeals. The court of appeals affirmed the district court, concluding physical contact is generally inherent in the game of softball and there was no conclusive evidence of recklessness sufficient to present an issue of material fact for a fact finder. The Felds sought, and we granted, further review.
II. Standard of Review.
We review a district court’s ruling on a motion for summary judgment for correction of errors at law. Sweeney v. City of Bettendorf,
III. Analysis.
A. Contact-Sports Exception. As a general rule, our law recognizes that every person owes a duty to exercise reasonable care to avoid causing injuries to others. Thompson v. Kaczinski,
While the duty to exercise reasonable care accompanies each individual in most all activities of life, some activities or circumstances have been excepted from the reasonable-care duty in favor of the imposition of a less stringent duty of care for participants in the activity to protect others from injury. See id. (recognizing occasions when countervailing principles and policies justify displacement or modification of the general duty to exercise reasonable care). One such activity that has been identified as an exception is contact sports. Prior to our decision in Thompson to follow the analytical framework of the Restatement (Third) of Torts for claims of negligence involving physical harm, we followed other states in excepting participants in contact sports from constraining their actions under the conventional duty to act as a reasonable person. See Leonard ex rel. Meyer v. Behrens,
In examining the extent or scope of the contact-sports exception, we recognize a sport involving contact between participants or contact with instruments or objects used by participants provides knowledge and understanding to the participants of the inherent risks of harm that can be created. This applies not only by the conduct that occurs within the rules and objectives of the sport, but also by conduct from participants who fail to properly execute an activity contemplated by the sport. See Leonard,
In contrast, conduct by participants done with reckless disregard for the safety of others or with an intent to harm others beyond the rules and objectives of the sport creates risks that are not inherent in the sport. See id. at 79-80. Such risks do not inhere in the sport because conduct involving recklessness or intent to harm presents risks substantially greater than risks of negligent conduct. See Restatement (Second) of Torts § 500, at 587 (1965) [hereinafter Restatement (Second) ] (risk involved in reckless conduct is “substantially greater” than risk involved in negligent conduct).
The parties to this ease do not challenge the viability of the contact-sports exception in Iowa, but only challenge its application to the sport of softball. Our obligation on appeal is to decide the case within the framework of the issues raised by the parties. Worthington v. Kenkel,
The threshold inquiry is whether the activity or sport engaged in by the parties was an activity or game covered by the contact-sports exception. This analysis does not focus on whether the participants were engaged in a formally organized or coached sport, but instead centers on whether the activity inherently involves the risk of injurious contact to participants. See Leonard,
Nevertheless, the Felds argue that liability should not be limited to recklessness or intentional conduct by generally labeling a sport as a contact sport. Instead, they argue the particular contact involved in causing the injury in each case must be analyzed to determine if the specific incident involved contact that should have been anticipated. The Felds assert this analysis is consistent with the underlying assumption-of-the-risk premise of the contact-sports exception. Thus, they argue softball may be a contact sport for a player like a catcher, but not for an individual playing first base when a right-handed hitter hits a ball left of the third baseline. More specifically, the Felds argue no first baseman could have anticipated harm from a bat under the circumstances of the case.
In Leonard, we examined the nature, objectives, rules, and traditions of the particular sport or game to determine if paintball was a contact sport so as to exempt participants from liability for injury to co-participants predicated on negligence.
Thus, we conclude softball for purposes of tort liability is a contact sport, and this conclusion is sufficient to transform liability for an injury sustained by a participant while engaged in the sport from a standard of negligence to a standard of recklessness. Clearly, batting is normal activity in the sport of softball and creates a risk of harm to participants in a number of ways, including a risk that the bat will be released during the swing in some way and will become an instrument of harm to participants in some way. Other jurisdictions that have examined liability in the context of softball have similarly concluded that softball presents inherent risks that qualify the sport for the recklessness standard. See, e.g., Landrum v. Gonzalez,
C. Reckless Conduct. The district court concluded the Felds failed to claim in their petition that Borkowski was reckless, and the undisputed facts presented in the course of the summary judgment proceedings did not support a finding of
We commence our review of this portion of the district court decision by recognizing that our inquiry is to determine whether the Felds presented facts sufficient to support a jury question on the issue of whether Borkowski’s actions in releasing the bat during the swing were reckless. We begin by noting it is not fatal to the Felds’ lawsuit that he only asserted a claim for negligence in his petition rather than asserting a claim for both negligence and recklessness. Borkowski raised the contact-sports exception as a defense. The contact-sports exception was also the basis for Borkowski’s motion for summary judgment, and the Felds resisted the summary judgment by arguing Bor-kowski’s conduct amounted to recklessness. The Felds’ resistance to the motion for summary judgment placed the issue of recklessness squarely in play, predicated on the understanding that it supported an actionable claim for liability based on recklessness.
We find the affidavit from Ed Serváis, the long-time baseball coach, supported a jury question on recklessness. The facts are undisputed that Borkowski swung at a pitch and struck the bottom portion of the softball with the bat. The contact between the bat and ball resulted in a high foul ball outside the third baseline. The path of the ball after it was hit revealed Borkowski swung too early to hit the pitch into the playing field. Up to the point of the bat’s contact with the pitch, nothing occurred out of the ordinary to support a claim of recklessness. However, Borkowski’s actions that followed during the split second after he struck the ball were far from normal. In his experience as a player and coach, Serváis had never seen or even heard of a first baseman being hit by a bat released from the hands of a right-handed hitter who had hit the pitched ball to the left side of the third baseline. Moreover, Serváis attempted to duplicate such an occurrence without success, which led him to the conclusion that Borkowski must have deliberately released the bat in a very abnormal, contorted act of recklessness.
Importantly, the affidavit of Serváis supports a reasonable conclusion that Borkow-ski did not continue to swing the bat in a normal manner after he hit the ball. The rare abnormality of the bat’s flight pattern
A party resisting summary judgment is entitled to “every legitimate inference that can reasonably be deduced from the evidence.” Cent. Nat’l Ins. Co. v. Ins. Co. of N. Am., 522 N.W.2d 39, 42 (Iowa 1994). Here, the Serváis affidavit gives rise to a reasonable inference of recklessness. Considering all the facts presented in the summary judgment proceedings, a jury could conclude BorkowsM, knowing he had swung ahead of the pitch and that his body was out of position to make solid contact with the ball, continued his swing in a very unorthodox manner and released the bat in momentary frustration and anger. This inference is sufficient to support a jury question on recklessness. See Leonard,
IV. Conclusion.
We conclude the district court erred in granting summary judgment. We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for further proceedings.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED FOR TRIAL.
A1 justices concur except Wiggins, J., who concurs specially, and Appel, J., who concurs specially with Wiggins, J., joining divisions I and 111(A) and Hecht, J., joining in its entirety.
Notes
. The Restatement (Third) provides the general duty to exercise reasonable care may be modified or displaced “when an articulated countervailing principle or policy” justifies a special rule of liability. Restatement (Third) § 7, at 77. Although we adopted the contact-sports exception prior to Thompson, our decision in Leonard fits within a special rule for liability in the sports context found in the Restatement (Third) of Torts. See Leonard,
. The assumption-o£-the-risk underpinning of the contact-sports exception does not mean that a participant in a contact sport is barred from recovery due to his own contributory negligence. The assumption-of-the-risk doctrine, in that respect, has been abolished in Iowa. See Coker v. Abell-Howe Co.,
. The American Law Institute published a revised definition of “recklessness" in its most current Restatement. Restatement (Third) § 2, at 16-17. The drafters acknowledge that the current standard of recklessness is "somewhat more restrictive" than the Restatement (Second) standard. Id. cmt. c, at 19. Primarily, the standard provided in the Restatement (Third) differs from the Restatement (Second) by focusing on the obviousness of
. We recognize our obligation to construe the law in resolving legal issues presented on appeal independent of any construction advocated by the parties. The arguments of the parties do not constrain us in our obligation to search for and apply controlling law to resolve legal issues. See Rants v. Vilsack,
. The contact-sports exception is not an affirmative defense to a claim for negligence so as to require the defendant to plead and prove the defense. It is a doctrine that limits liability by modifying the standard of care. Leonard,
Concurrence Opinion
(concurring specially).
I concur in the result by joining in divisions I and 111(A) of Justice Appel’s special concurrence. The majority opinion clings to the contact-sports exception on the grounds neither party urges its abandonment. As Justice Appel rightly points out in division I of his special concurrence, the question of the continued viability of the contact-sports exception is clearly before us. Moreover, we cannot let the parties’ narrow framing of an issue preclude us from applying the proper analysis to an issue. In past cases where the parties did not raise the applicability of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, we have applied the Restatement (Third) when necessary to properly analyze the issues before the court. Brokaw v. Winfield-Mt. Union Cmty. Sch. Disk,
The procedural posture of this case makes it even more important for us to address the issue under the Restatement (Third). The majority opinion reverses the district court’s order granting Borkow-ski’s motion for summary judgment and remands the case for a trial on the merits. We have recently adopted section seven of the Restatement (Third) as the proper duty analysis in a negligence case. Thompson,
By not reaching this issue, the majority leaves the district court and the parties with a terrible dilemma. The court has an obligation to cover all the legal principles involved in a case when it instructs the jury. Greninger v. City of Des Moines,
In writing this concurrence, I feel compelled to ask the majority a couple of questions. Why should we leave the question unanswered when the district court will be confronted with it on remand? Why are we creating a potential appeal on this issue under the Restatement (Third) when we can answer the question now? It seems to me, for us not to address the issue creates extra expense for the parties and the court. Accordingly, I would address the issue head on and give the contact-sports exception a proper burial.
Concurrence Opinion
(concurring in part and dissenting in part).
This case raises two substantive issues. The first substantive issue is whether there is a special limited-duty rule for contact sports under Iowa law that applies to the game of softball. If so, a second question arises, namely, whether the contact-sports exception should prevent liability based on negligence under the facts and circumstances of this case.
For the reasons stated below, I would reject application of the contact-sports exception to softball. In the alternative, I would hold that there is a factual question regarding whether the conduct in this case was outside the scope of the ordinary risks of softball and, therefore, subject to liability based on negligence.
I. Matters Properly Before the Court.
In the proceedings below, the plaintiff framed the argument narrowly as to whether the game of softball falls within the contact-sports exception. In making this argument, the plaintiff clearly and indisputably has maintained the case should be tried as an ordinary negligence claim. The plaintiff, however, did not argue that the contact-sports exception should be eliminated altogether. The question thus arises whether it is proper for the court to address the larger question in this appeal.
The question of when an issue not argued by the parties should be decided by the court involves a number of consider
On the one hand, the judicial process is normally driven by the parties. They bring their cases to the court and ask the court to decide the issues they present. Judges are not advocates who reach out to decide questions the parties themselves either deem unimportant or, for whatever reasons, fail to raise. The job of the court is to decide concrete cases the parties bring to it.
On the other hand, judges should not allow the parties’ framing of the issues to usurp the judicial function. The courts, and not the parties, are responsible for the coherent development of law. This is particularly true when courts are performing their common law function. A judicially-driven decision may produce a more accurate statement of law. Amanda Frost, The Limits of Advocacy, 59 Duke L.J. 447, 452 (2009) [hereinafter Frost]. The courts are not some kind of private arbitration service working for the parties and no one else. Id. at 474.
It is the tension between these two roles of deciding cases and developing the law that must be resolved in this case when we consider whether to address the ongoing validity of the contact-sports exception when the parties have declined to expressly address it in their briefs. See generally Chad M. Oldfather, Defining Judicial In-activism: Models of Adjudication and the Duty to Decide, 94 Geo. L.J. 121, 164-75 (2005) (discussing the scope of a court’s adjudicative duty).
The United States Supreme Court has addressed this kind of question by distinguishing between a claim and an argument. As noted by Sarah Cravens, the Supreme Court has made it clear that once a claim is properly presented, a party is not limited to arguments presented below. Sarah M.R. Cravens, Involved Appellate Judging, 88 Marq. L.Rev. 251, 259 (2004) [hereinafter Cravens]; see also Lebron v. Nat’l R.R. Passenger Corp.,
The Supreme Court has been willing to employ this flexible, discretionary approach to determining whether it should decide an issue not argued by the parties in several important cases. For example, in Erie Railroad Co. v. Tompkins,
The leading commentator on Supreme Court practice has stated that the decision
High courts in other states have, from time to time, been willing to consider arguments not raised by the parties. Every law student studies the famous case of MacPherson v. Buick Motor Co.,
Justice Cardozo did not address the narrow argument made by the plaintiff. Instead, after canvassing the applicable law, Cardozo held that the larger doctrine which required privity of contract for a purchaser to bring a claim against a manufacturer was no longer good law. Id. at 1053. According to Cardozo, “We have put aside the notion that the duty to safeguard life and limb, when the consequence of negligence may be foreseen, grows out of contract and nothing else.” Id.
Although Iowa courts are not governed by the “case or controversy” restrictions in Article III of the United States Constitution, we have held that a plaintiff may not raise a new theory of liability after trial. See, e.g., Field v. Palmer,
Indeed, we have been willing to relax ordinary rules of issue preservation based on notions of judicial economy and efficiency. For example, we may decide eviden-tiary questions not presented to the district court where we reverse a decision of the district court but the record reveals an alternate ground for admission of the evidence. DeVoss v. State,
We have also stated that we will address issues that are “incident” to a determination of other issues properly presented. Presbytery of Se. Iowa v. Harris,
On the other hand, there are some good reasons to consider the larger question. This case is a classic example of intertwined issues. It is one thing to decline to address an issue not raised where orderly development of the law is not affected, but it is quite another thing to refuse to consider the policy underpinnings of a doctrine while at the same time extending it into new and uncharted territory.
Because the parties chose to present only the narrow argument that the contact-sports exception should not be extended to softball, the majority sees itself as locked into the contact-sports doctrine and has no choice but to extend it outside the context previously established by Iowa case law even though there is a substantial question regarding its ongoing validity. I regard this approach as ceding the court’s fundamental authority to develop the law to the parties. See Frost,
Further, because public policy is at the heart of the contact-sports exception, this case presents the kind of dispute that even Professor Eisenberg, who generally endorses the adversary or participatory model of adjudication, believes justifies the relaxation of the ordinary rules. See generally Melvin Aron Eisenberg, Participation, Responsiveness, and the Consultative Process: An Essay for Lon Fuller, 92 Harv. L.Rev. 410 (1978). Indeed, under the Restatement (Third) of Torts, the contact-sports exception, as a special rule to ordinary negligence, can only be adopted if there are compelling public policies in support of the special rule. Further, in common law cases, courts must make decisions on grounds of policy because of their implications for future cases. Craven, 88 Marq. L.Rev. at 255.
In any event, if there is a reluctance to address the broader question because of the failure of the parties to make this argument, we should order the parties to file supplemental briefs to address the issue rather than render an opinion based on what may prove to be a fatally flawed premise. There is no reason not to order supplemental briefs in order to ensure that this court “gets it right” now rather than wait for an additional case to come along. Supplemental briefing would also promote fairness to the parties by ensuring that they have an opportunity to weigh in on the larger issue. See Adam A. Milani & Michael R. Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 Tenn. L.Rev. 245, 287 (2002) (advocating that when courts use discretion to decide issues not raised by parties, supplemental briefing should be requested to avoid abuse of discretion).
I would have ordered the parties to present supplemental briefing on the larger issues presented in this case. Since such briefing has not been ordered, the
Before discussing my views on the merits, it is important to note what this ease means. The continued validity of the contact-sports exception and its viability and scope under the Restatement (Third) of Torts are no.t addressed by a majority of the members of the court and therefore remain open questions. The court may have reached a result on this appeal, but it has left the law in this area murky and uncertain.
II. The Contact-Sports Exception.
A. Development of the Contact-Sports Exception. Prior to 1975, plaintiffs were generally allowed to recover in sports injury cases based on a showing of ordinary negligence. See Crawn v. Campo, 266 N. J.Super. 599,
Since Nabozny, the question of whether to alter the application of traditional negligence in sports-injury cases has not been decided in many jurisdictions. See generally Matthew G. Cole, No Blood No Foul: The Standard of Care in Texas Owed by Participants to One Another in Athletic Contests, 59 Baylor L.Rev. 435, 443-57 (2007) (cataloguing status of the contact-sports exception in all fifty states). In those that have, a majority of courts have departed from traditional precedents and developed a common law innovation that has been labeled as the “contact-sports exception” to ordinary rules of tort liability. See, e.g., Knight v. Jewett,
The courts adopting the contact-sports exception have often cited the policy concerns of Nabozny, namely, that immunity for negligent conduct is essential to ensure vigorous competition and to impede the filing of lawsuits over sports injuries. Knight,
The doctrine employed to avoid these untoward consequences is usually assumption of risk. It is claimed the normal expectations of participants in contact sports include the potential for injuries, participants assume the risk of injuries, and therefore there should be no negligence liability for such injuries. See Jaworski,
The very fact that an injury is sustained during the course of a game in which the participants voluntarily engaged and in which the likelihood of bodily contact and injury could reasonably be foreseen materially affects the manner in which each player’s conduct is to be evaluated under the negligence standard.
Id. As a result, the Lestina court found that the negligence doctrine was sufficiently flexible to permit “vigorous competition” and to give adequate1 consideration to other factors cited in support of the contact-sports exception. Id.
The New Hampshire Supreme Court in Allen v. Dover Co-Recreational Softball League,
Another case that rejects the contact-sports exception is Auckenthaler v. Grund-meyer,
B. Application of the Contact-Sports Exception to Softball. There are several cases that consider whether softball should be considered a contact sport for the purposes of any exception to ordinary negligence law. In the majority of cases, courts have held that softball was a contact
C. Scope of the Contact-Sports Exception. Some of the cases dealing with the contact-sports exception contain broad, unqualified statements that recovery for injuries suffered in the course of contact sports requires a showing of recklessness. However, in a number of cases that have adopted the contact-sports exception, there have been some clearly drawn limitations on the doctrine.
Limitations to the contact-sports exception finds support in a relatively early case regarding assumption of risk. As stated by Chief Justice Cardozo, a party who engages in a sporting activity “accepts the dangers that inhere in it so far as they are obvious and necessary. ” Murphy v. Steeplechase Amusement Co.,
D. Developments in Tort Law Following Adoption of the Contact-Sports Exception. Since the advent of the contact-sports exception, there have been significant developments in tort law. One such development is the adoption of the Restatement (Third) of Torts. The Restatement (Third) of Torts provides that “[a]n actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 7(a), at 77 (2010). The Restatement (Third) of Torts, moreover, has an overarching philosophy, namely, that the duty of care owed by one to another in matters involving personal safety is ordinarily the generally-applicable negligence standard and that the question of whether that generally-applicable standard has been breached is a factual question for the jury. See id. at § 6 cmt. f, at 69, § 7 cmt. q, at 77-78. The Restatement (Third) of Torts eschews special judge-made rules that apply in narrow situations as incoherent and inconsistent with the overarching architecture of our modern tort law. See also Yount v. Johnson,
That said, section 7 of the Restatement (Third) of Torts does reserve special duty
E. Iowa Case Law Regarding the Contact-Sports Exception. This court in a per curiam opinion in Leonard ex rel. Meyer v. Behrens,
The court cited Dudley v. William Penn College,
Next, the Behrens court briefly cited but did not analyze sports cases. Behrens,
III. Application of Principles.
A. Analysis of the Underpinnings of the Contact-Sports Exception. This court adopted the Restatement (Third) of Torts in Thompson. Thompson v. Kaczinski
First, the contact-sports cases generally do not adequately take into consideration
As a result, sports injuries that occur in the ordinary course of a contact sport would not give rise to negligence claims. As noted in Allen, it would be part of the ordinary course of reasonable play for a player to throw a ball in an errant direction in a softball game. Allen,
Second, the contact-sports exception does not adequately take into consideration our comparative-fault framework. In Iowa, comparative fault has abolished assumption of risk, one of the main underpinnings of the contact-sports exception. Iowa Code § 668.1(1) (2005). The legislature has not crafted an exception for contact sports. In many cases, assumption of risk provides the analytical framework for special rules for sports participants. In Iowa, a special duty rule cannot be fashioned based on this type of assumption of risk. The majority seems to anticipate what the legislature should have done, or perhaps will do, namely, craft an exception to comparative fault, rather than rely upon what the current law provides.
Third, I question whether “the sky is falling” approach of the contact-sports cases bears any reasonable relationship to reality. For example, in Jaworski, the Connecticut Supreme Court declared:
If simple negligence were adopted as the standard of care, every punter with whom contact is made, every midfielder high sticked, every basketball player fouled, every batter struck by a pitch, and every hockey player tripped would have the ingredients for a lawsuit if injury resulted.
Jaworski,
After over four decades of experimentation with the special rule in some states, no special rule in other states, and uncertainty in many states, one would think the states as laboratories of democracy would have produced some evidence to support the speculation of courts regarding “vigorous competition.” The lack of evidence over this prolonged period of time is a powerful indicator that the vigorous competition policy rationale of the contact-sports exception has no basis in fact.
In any event, one might wonder, in today’s world, whether vigorous competition needs the “breathing room” provided by a recklessness standard. As noted in one leading sports law text, “the evidence is accumulating that, on every level of competition, participants need to be restrained and not emboldened.” See Ray Yasser et al., Sports Law: Cases and Materials 720 (4th ed.2000). To the extent tort rules would affect behavior in the context of athletics, the elimination of the contact-sports exception would promote a sense of restraint, a sense that the game has to be played within the rules, a sense of respect for the bodily integrity and person of the opposing player. There is a word that encompasses these traits — sportsmanship. I am old-fashioned enough to want our tort system to give this traditional value contemporary life.
Fourth, the bogeyman of an “avalanche of lawsuits,” that reliable and hoary chestnut that is relied upon whenever there is potential liability, has no more validity in the sports context than in most contexts in which it is applied. The majority of cases upon which it relies cite no evidence of an avalanche of lawsuits in states that have rejected or have not yet embraced the contact-sports exception. Indeed, in Iowa, there was no reported case involving co-participants in sports until the court considered the exotic sport of paintball in Behrens in 1999. In short, not one case involving coparticipants in football, basketball, baseball, softball, or soccer came to this court for resolution prior to 1999. There was no threatened “avalanche of litigation” in Iowa, then or since.
Indeed, the leading case with the inflated rhetoric about the potential “avalanche of litigation” comes from the Connecticut Supreme Court in Jaworski. Mark M. Rembish, Liability for Personal Injuries Sustained in Sporting Events After Jaworski v. Kiernan, 18 Quinnipiac L.Rev. 307, 337-38 (1998). Yet in the fifty-five-year period from 1941, when the Connecti
In any event, even if there were a semblance of reality to the myth of a litigation avalanche, adoption of the contact-sports exception is just as likely to increase litigation as it is to diminish it. Here is the argument: advocates of the contact-sports exception believe that it will encourage robust and vigorous play; the more robust and vigorous the play, the more injuries are likely to occur; and the more injuries that occur, the more litigation results. See Thomas F. Miller, Torts and Sports: Has Michigan Joined the Wrong Team with Ritchie-Gamester, 48 Wayne L.Rev. 113, 131 (2002). I do not claim to have empirical evidence to support this line of reasoning, but it is just as likely to be correct as any opposite conclusion.
I further question the underlying premise of the “avalanche of litigation” theory. First, it reaches too far. If the “avalanche of litigation” theory were a driving principle of tort law, it would have more application in the world of airplanes and automobiles than competitive sports. Second, it is just wrong. The tort system exists to compensate persons who are injured by the unreasonable conduct of others.
It may be, I suppose, that there is an unarticulated reason behind the “avalanche of litigation” theory, namely, a mistrust of juries to do the right thing. Yet, we trust juries to do the fact finding in complicated matters ranging from medical malpractice to business tort cases. If juries can handle these types of cases, they can surely be trusted with cases arising from competitive sports injuries.
Fifth, assuming that the application of ordinary negligence would have some mild deterrent effect on play and produce a few additional lawsuits, this would not be an untoward development. The cases that embrace the contact-sports exception generally note that there must be a balance between the interests of promoting vigorous participation in sports and the safety of participants. See Ross v. Clouser,
The increase in injuries in contact sports has had a number of adverse effects. For those injured due to unreasonable conduct, the adverse effects are self-evident. Further, however, the increasingly dangerous nature of competitive sports has tendencies to deter participation by those who might be willing to play but who do not wish to be exposed to the risk of injuries from unreasonable conduct. For those who wish to promote broadly the values of athletics across the culture, the contact-sports exception may be self-defeating. If it is true that application of the negligence doctrine would modestly deter unreasonable conduct, the time has come to tip the balance in the direction of safety and potentially broader participation.
For the above reasons, I question whether the contact-sports exception has a
B. Softball as a Contact Sport. Because of my concerns regarding the validity of the contact-sports exception generally, I have no interest in seeing it expanded outside the limited context of Behrens, which emphasizes that the very purpose of the sport is to strike an opposing player. Behrens,
Aside from my policy concerns, I also have technical concerns with developing some kind of imprecise and irrelevant category of “contact” vs. “noncontact” sport. It is a meaningless exercise. This is the kind of pointless labeling that we recently rejected in Koenig. See generally Koenig v. Koenig,
It makes no sense at all to adopt the blunt and imprecise categorization approach that has the potential of being both overbroad and underinclusive. I, of course, doubt that the court would be willing to extend the contact-sports exception to sports like golf, table tennis, and the racing of toads, but this is an argument against the rule in the first place.
Further, not all “softball” is the same. An informal game of softball involving children and adults may operate by one set of rules and generate gentle expectations, while a highly competitive game involving adults played for high stakes may involve more risk of physical contact. In this case, there is no elaboration in the record other than the game was a slow-pitch softball game involving seventeen year olds playing in an organized league. These facts alone, in my view, are not sufficient to declare that this softball game was a “contact sport.”
In any event, if forced to make a choice in a bipolar world, I would conclude that softball is not a contact sport. Unlike football or paintball, for example, the very purpose of the game does not involve the collision of bodies or projectiles. I do not believe the nature of the game of softball will be dramatically changed by a rule imposing liability for negligence under all the facts and circumstances. I would, therefore, not apply any special immunity to the game.
In my view, under the better-reasoned contact-sports cases, a person who commits acts or omissions that create risks that are outside the ordinary risks inherent in a game are subject to liability sounding in negligence. Such acts or omissions “increase the risk of harm beyond what is inherent in the sport.” Kahn,
Here, the plaintiff is entitled to assert that the throwing of the bat by this right-handed hitter behind his back all the way down to the first baseman with its resultant injuries was not an inherent and inevitable part of the game but was outside the risks associated with the activity. An expert testified that in thirty years of coaching softball, he had never seen this kind of incident. As a result, there is a factual question regarding whether the acts of the defendant fell outside the scope of the contact-sports exception and therefore triable as an ordinary negligence action.
IV. Conclusion.
In light of the underlying weakness in the contact-sports rationale, I would not permit it to drift outside its moorings. As a result, I would not extend the contact-sports exception to an amateur game of softball. At a minimum, whether the contact-sports exception applies involves a careful consideration of the facts and circumstances.
Even assuming the contact-sports exception applies to the game involved in this case, the rule does not immunize negligent conduct that is outside the inherent risk of the activity. In this case, at a minimum, the plaintiff is entitled to argue that the conduct involved — the throwing of a bat by a right-handed batter who twirls around and throws the bat with sufficient force to strike the first baseman, what was indisputably an extraordinary and unheard of event — presents a danger that was outside the inherent risk of the game and, as a result, subjects the actor to liability based on ordinary negligence.