Aluminum Baseball Bat Wrongful Death Verdict Upheld

The Missoulian reported Saturday on the decision of District Judge Katherine Seely to upohold a verdict in the wrongful death of an 18 year old American Legion pitcher, Brandon Patch.  Mr. Patch was struck in the temple and died 4 hours after the particularly viscious line drive to the head. The report summarizes the facts as follows:

"A district judge on Friday denied a motion by attorneys for Louisville Slugger to throw out a verdict that found the baseball bat company liable for the 2003 death of a baseball player during a game in Helena.  The company argued that the attorneys for the parents of former Miles City American Legion baseball pitcher Brandon Patch failed to produce evidence that, had a warning been given, Patch would have altered his actions to avoid injury. Patch died after he was struck by a ball that was hit by an aluminum bat.

His parents sued the company in 2006, alleging that an "unreasonably dangerous" metal bat caused his death and Louisville Slugger failed to warn of the dangers. In October, a jury sided with the Patches and awarded them $850,000. The jury said the bat was not defective in design, but the ordinary user was not properly warned of its dangers.

In November, attorneys for the bat company filed a motion for judgment [notwithstanding the verdict.] But District Judge Kathy Seeley denied the [motion] Friday.

'The Court finds that in this case the jury may properly have inferred from the evidence that a warning would have been heeded and the failure to warn caused the injury,' she said."

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Wow!  While my natural inclinations are to sympathize with personal injury plaintiffs the decision of Judge Seeley is certainly going to be appealed and do not be surprised if it is ultimately vacated. 

There are several issues that leap out of the report; and, always remember we are reading a news report written (in most cases) in these situations by non-lawyers not able to parse for us the legal issues inherent in a tort action let alone a "wrongful death, products liability" lawsuit.  Special rules apply, and some normal defenses may not be available because of the circumstances that are not fleshed out in this digest of the facts.  Still, the reaction in Bad Lawyer-land is how did this claim get to a jury?

As I discussed at some length last week while all states have their own common law and statutory law, most states follow to some degree or another the law of every other state as codified in the ALI, Restatements (in this case) Law of Torts. 

The scenario described in the Missoulian report would not get to a verdict in OurState or most of the states I've practiced, because of a law called "recreational use statutes" that provides immunity for injuries arising out of the intended use of recreational property, facilities, and equipment.  The recreational use statutes are intended to encourage the use of property, facilities and equipment by protecting owners, facilities, leagues, and manufacturers from liability.  To some extent there is also an echo of the older (and largely abandoned) doctrine of "voluntary assumption of a a known risk."  You see, Brandon and his American Legion teammates were using baseball bats to play baseball, "the intended use" of the equipment--that fact alone would usually immunize Louisville Slugger. 

But the verdict apparently turned on the failure of warnings and specialized qualities of Aluminum bats versus bats made of ash or otheer wood.  Attorneys for Louisville Slugger argued in their motion for Judgment Notwithstanding the Verdict (JNOV) that there was no evidence that Brandon or his teammates would have done anything different in response to a warning or disclaimer pasted on the bat that said baseballs hit by metal bats had a greater velocity or were more dangerous to persons struck by a ball. 

The Missoulian news report is reminiscent of the biography of former major league pitching sensation, Herb Score, who was an upcoming pitcher on the same staff as future hall of famers, Bob Feller and Bob Lemon.  Struck by a linedrive in 1957, Score spent his career in the Cleveland Indian's broadcasting booth instead of the pitcher's mound.