Does it count as a tort when a baseball pitcher deliberately throws a fastball at your head and seriously injures you? Apparently not, at least after this opinion by Justice Werdegar, which holds that such a claim would be barred by the primary assumption of risk doctrine.
There's a fair amount of this opinion that I agree with. But I don't think that I can climb on board for its assumption of the risk analysis. Justice Werdegar talks a lot (and writes well) about how a little chin music is a longstanding part of the game, and waxes poetic about the dangers of getting the judiciary involved in the regulation of sports.
But here's the thing. Deliberately beaning a guy is unambiguously against the rules; indeed, if you read the rule book, it's a cardinal sin. And, although Justice Werdegar doesn't mention it, it's equally true that beaning a guy in the head is even more against the rules -- both the formal rules as well as against more informal norms. Everyone recognizes that such an event is both an incredibly serious matter as well as inexcusable. Which leads me to two points. First, I don't see how Justice Werdegar can hold, ex cathedra and without evidentiary submissions, that throwing at someone's head is an inherent risk in the sport. Don't you at least have to remand for findings on this? I sincerely doubt that every single reasonable person would agree that having a fastball deliberately thrown at your head is something that's inherently part of the game. Second, even if it is a longstanding tradition, I don't see how that necessarily lets the judiciary off the hook and obviates their responsibility to generate applicable tort law. Both because (1) even longstanding norms change over time, so (again) we'd at least need a hearing, and -- more importantly -- (2) just because something has a long tradition doesn't necessarily make it right. What if baseball had (and, in some circles, I'm not sure it doesn't!) a longstanding tradition of sexually harassing rookies? Assumption of the risk there too? What if -- and this isn't far from the present case -- baseball allegedly had a longstanding tradition that if you're deliberately plunked with a pitch, you go after the pitcher and beat him senseless. No tort there either? What if the pitcher dies when you punch him in the face after he plunks you? Still tort or crime? After all, it's a long and glorious tradition. Primary assumption of the risk, right?
Which is all just a fancy way of saying that the judiciary doesn't allow private participants full range to determine their own conduct, especially when that conduct involves, as here, both a deliberate attempt to injure someone as well as a serious risk of injury. Maybe there's a (new) longstanding tradition of boxers biting off people's ears, for example. But that don't necessarily make it right. The judiciary -- or a jury -- still determines the legitimate range of conduct in a sport that society is willing to accept.
So I think that Justice Werdegar's analysis is a bit of a cop-out. Maybe the result here is right, and that there shouldn't be tort liability. But I don't think we can say so simply on the basis of an allegedly "longstanding" tradition of ignoring the sport's own rules. Nor do I think that this is the role of the California Supreme Court, particularly absent any evidentiary submissions.
That's my take. But pretty much everyone who's actually in power disagrees. So, in California at least, beanballs away. Watch your heads, ladies and gentlemen. America's National Pastime just got permissibly a fair piece more ugly.
