*1 Higgins Pfeiffer v PFEIFFER HIGGINS 18, 1995, July at Detroit. Decided Docket No. 169855. Submitted 9, 1996, appeal sought. February a.m. Leave to at 9:15 brought Wayne Higgins in the Circuit Court an action Jesse Pfeiffer, McCullough, against and Robert McCul- Brian David Higgins’ lough, teammates on an amateur all of whom were team, damages personal injury seeking for a sustained baseball warm-up. Higgins, dugout, during pregame in was while a Pfeiffer, pitcher, pitch eye by to David thrown hit ballpark pitchers’ McCullough, The did not have a a catcher. dugout, bullpen, threw the errant ball Pfeiffer protec- spot Higgins in the where chose to sit at Gillis, court, height. H. The John tive was at its lowest fence Jr., J., disposition granted summary for the defendants. appealed. Appeals held: The Court of Higgins’ injury to the within the of his consent' injury attendant circum- inherent in the risk of stances, including peculiarities playing of the facilities. dismissing summarily the action. trial court did not err Affirmed. P.J., dissenting, summary. stated that granted erroneously. disposition whether accepted dangers Higgins’ injury is within the understood and including sport, from carelessness warm-up, question for the trier of fact. is a Injury. Negligence Sports— — Risk of sporting activity Participants to be aware of the are assumed and to have inherent hazards contest, other to the risk of inherent consented safety designed protect the rules than breaches contest opposed integrity players of the contest. as Larry (by Victor, A. Lakin, P.C. Worsham & Smith), for Jesse Higgins._ References 2d, Negligence
Am 835. § Jur Negligence. See ALR Index under Opinion op the Court Landry, (by Still, Nemier, Tolari & P.C. Mark R. Johnson), for Brian Pfeiffer. Finley (by Gregory
Morrison, Morrison & W. Finley), McCullough. for David and Robert *2 Sawyer P.J.,
Before: and D. R. JJ. Freeman,* personal injury plain- action, J. In this
Sawyer, Higgins tiff Jesse and defendants Brian Pfeiffer McCullough and David and Robert were members participating of an amateur baseball organized league. team in an plaintiff, along After with other up playing fielders, had field, warmed on the he dugout game went to the to await the start of the opposing through while the team went its warm- up routine. pitcher, Pfeiffer,
Defendant the continued to up, yielded pitcher’s warm but mound to the opposing apparently team, which was the "home up team.” Pfeiffer continued to warm on the side- throwing dugout line, area where his sitting. teammates were bullpen warming The field in has no for up pitchers. protected a fence high that is at least four feet toward the outfield higher plate. but toward home Plaintiff chose to sit dugout. the outfield end of the Plaintiff also paying seems to have been insufficient attention to the activities on the field. it time,
As came closer to Pfeiffer, to test pitching began throwing arm, his the fastballs, and McCullough, eventually sig-
catcher, David rising naled for a one, fastball. Pfeiffer threw "got away him,” went over the catcher’s although yelled, head, and Pfeiffer or someone * judge, sitting Appeals by assignment. Circuit on the Court of v Pfeiffer Opinion op the Court up!” plaintiffs "Heads aged and two of teammates man- eye duck, was struck injuries. McCullough suffered severe Robert acting charged negligence the for throwing coach and is
allowing starting up pitcher his to warm dugout.
toward granted Wayne Circuit Court defendants’ summary disposition. appeals motion for Plaintiff and we affirm. noting erred,
Plaintiff contends the circuit court sports- that of risk doctrine injuries related was abolished with decision Toles, 195; 151 7 Mich NW2d 396 every mean, however, That does not goes jury. Participants sporting case activity are assumed to be aware of the hazards inherent and to have consented to the risk of inherent contest, other than breaches of contest rules de- signed opposed protect safety players as *3 integrity of the contest. Overall v App Kadella, 351, 138 ff; Mich 357 361 352 NW2d surprisingly sports There are few cases country involving Carey from around the was a baseball baseball. involving unorganized
case, an plaintiff, minor, contest in which the a was struck by player bat, in the face with a thrown who had, under the "house rules” under which the being played, "out,” was made an and who running should not therefore have been toward accordingly all, first base at and who had no occasion to throw his bat. is thus within the general more rule of Overall. directly is, however,
One case from a sister state
point.
Daniels,
1076;
In O’Neill v
135 AD2d
523
plaintiff
injured
NYS2d
he was
the
was
"when
eye by
by
struck
the
a softball thrown
op
Opinion
the Court
during 'warm-up’
defendant,
teammate,
the
tivities
holding
applied
ac-
prior
game.” Up-
an
to
amateur softball
disposition,
appellate
summary
the
court
legal
indistinguisha-
standard that seems
Michigan jurisprudence:
ble from
"Traditionally,
participant’s
conduct was
conveniently analyzed in terms of the defensive
doctrine of
ment of the
of risk. With the enact-
comparative
statute,
negligence
how-
ever, assumption
longer
of risk is no
an absolute
1975).
(see,
1411,
1,
Sept.
Thus,
defense
CPLR
eff
necessary,
quite proper,
has become
measuring
consider the
and
when
duty
plaintiff
a defendant’s
to a
to
plaintiff
risks assumed
[cita-
(Turcotte Fell,
432,
tions
438
duty
v
68 NY2d
437-
omitted]”
(1986)]).
NYS2d
tivities,
accordingly plaintiff’s
complaint was
propérly dismissed.
AD2d
[135
1077.]
That is consistent with Hunt v Thomasville Base-
*4
Co,
ball
80 Ga
Here, chose a pay less-protected attention end and failed to plaintiff been the activities on the field. Had to dugout position seated, closer to home or taken plate, not have been it would seem he would exposed injury, either would because the ball trajectory have had to strike the fence or its would plaintiffs have carried it over head. The plaintiffs was within the con- sustained sent stances, implicit circum- and attendant
including peculiarities disposition correctly Summary facilities. granted.
Affirmed. J.,
D. R. Freeman, concurred. (dissenting). respect- P.J., I
fully dissent. disposition pur- summary Defendants moved for 2.116(C)(8) suant to MCR Neither specifies majority court nor the the subsec- lower tion on relies, I think it erred regard to both. simply
Plaintiffs cause of action is not barred alleged per- because defendants were not have negligent petrated grossly wilful, reckless, or acts. legitimate cause of action based on Plaintiff has a his opts allegations negligence. *5 423 428 Mich App by P.J. Dissent a new rule that defendants cannot be liable unless their acts can be characterized as intentional or Although grant- reckless. ing the trial court erred in that defendants’ motion on the basis an ath- participating lete and contest, in a assumes all obvious
foreseeable risks that are incident finds that the trial court right wrong reached the result for the reasons. Assumption sports-related injuries of the risk for Carey Toles, was abolished in 7 with decision v (1967), App relying 195; 151 NW2d 396 Felgner Anderson, 23; 136 375 Mich 133 NW2d Carey, Note that there was no discussion gross negligénce wilful, wanton, of or or inten applicable tional misconduct. The law was as negligence. ordinary sumed to be Kadella, In Overall v 138 Mich 361 apparently stated, NW2d stacking this Court sleight by equitable principle, of hand the injuria, or, "volenti non fit he who consents cannot injury,” supra Overall, 357, receive an p Torts, 2d, § 50, 86, b, Restatement comment that physical bodily sports consent to contacts con- prohibits recovery tests unless there is "an inten- causing injury, goes beyond tional act what ordinarily permissible, battery is an assault and recovery citing may for which had.” be Without clearly ruling liability and without out negligence, the Court Overall seems to have rein- questiona- troduced of the risk under However, ble rationale. that rationale is dicta because the Court affirmed a verdict hockey- from an that occurred game fight. The Court seems to have affirmed on intentionally the basis that the defendant struck plaintiif against fight- the ing” in violation of "the rule hockey testimony contests. There was of cases, the existence of such a rule. These two cited majority, plaintiif would seem to entitle v Pfeiffer Kelly, Michael J. Dissent P.J. testimony offer permit about the rules of questions
a trier of fact to decide these of fact: pitcher capable throwing
1. Defendant velocity. fastballs with extreme per "Almost miles plaintiff’s injury hour.” Does make fore- duty seeable and a breach of a care? due 2. All three defendants were aware that defen- pitcher throwing Taylor dant dugout team beginning
and that the bench was to fill players returning warm-up. Would a *6 catcher) battery (pitcher reasonable desist? pitch- All 3. three defendants were aware of the customary practice er’s up pitches to "turn his last few warm- meaning
loose,” to throw them as fast capable and as hard as he was The team of. manager, Head Coach Leonard Makowski testified they warming up that the location where were manager unsafe. Should assistant have inter- vened? just
4. Plaintiff had returned to the practice the conclusion of outfield and taken a seat some ten to fifteen seconds before he was hit. entry Should defendants have been aware of his activity accordingly? into their zone of and reacted plaintiff’s conclusion, In whether accepted dangers within the understood and sport, including from carelessness during warm-up activities, is a of fact imported the trier of fact. has a rule precedent of law for which there is no in this state except Georgia majority’s ruling itself, relies predicate
and New York authorities. The ruling game” for this is not based on "rules properly , because none were introduced into evi- assump- dence and the lower court’s reliance on clearly tion of risk is erroneous.
I would reverse.