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Attorney's Advice:
Appeals Court
Plays Hardball

Alexander Padis
10/21/10
In a decision released Sept. 24 on Judge v. Carrai, the Appeals Court decided to play hardball over a backyard softball game.

Coming on the heels of this summer’s ruling by the Supreme Judicial Court regarding the duty of homeowners to remove natural accumulations of snow or ice, this decision appears to reflect a further broadening of the potential for liability beyond what most of us would have considered possible. If this decision stands, all of us must consider limiting our outdoor activities at the next family gathering, because even a little softball may lead to liability.

In Judge, the plaintiff, Maria, was a guest of the homeowners, Dennis and Virginia. Maria was sitting on her hosts’ back porch, with her back to the yard, about 20 feet from where the play was taking place.

Virginia encouraged several of the children in attendance, including her own son, to play softball in the backyard. Although the game was very informal, a real softball and an aluminum bat were used.

Because of the close quarters, Virginia encouraged the participants to bunt, swing down, or take half swings so that the ball would not travel far when hit. Nevertheless, a batted ball traveled to the roof of the porch. The play continued until a batter hit a line drive that struck Maria in the back of her head causing her to suffer serious injury.

Maria sued her hosts, alleging that they were negligent in allowing guests to play softball under such circumstances and that, as the result of their negligence, she had suffered injury. Dennis and Virginia moved for summary judgment on the basis that they did not owe Maria a duty to protect her from harm under the circumstances. The judge granted the motion.

On appeal, however, the Appeals Court reversed, finding that Maria had stated a claim upon which relief can be granted. The court embraced the general principal that a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks that make the conduct unreasonably dangerous.

In analyzing the facts, the court concluded that, given the close quarters, there could be little question that a jury could determine that there was a foreseeable risk that a batted ball could strike and injure someone sitting on the porch. The hosts were aware of this risk, as demonstrated by their request that the participants bunt, swing down or take half-swings. That the risk should have been obvious to Maria did not excuse the hosts, because the open and obvious nature of a danger does not negate a duty of care.

Even though the hosts did not swing the bat, the court determined that they could nevertheless be liable for the action of the batter. They could have controlled his conduct to prevent him “from so conducting himself as to create an unreasonable risk of bodily harm” to Maria, they knew or had reason to know of their ability to control the conduct, and they knew or should have known of the necessity and the opportunity to exercise such control.

The court was particularly comfortable in its ruling because the hosts not only owned the property but also the softball equipment involved in the accident. As a result, the court determined they could have stopped play by removing the equipment: “The hosts were present and aware that their equipment was being used, and ... aware that its use posed a risk of injury to guests seated on the porch. They accordingly held a duty of care toward Maria, and it was error to enter summary judgment in their favor.”

The court was careful to state that, having found that the hosts had a duty under the circumstances, it was not expressing any view regarding the actual liability of the hosts or whether Maria was entitled to recover. Unless appealed further by the hosts to the SJC, the case will now return to the Trial Court for trial.

Justice Janis M. Berry dissented “because the majority opinion does not accord with Massachusetts tort law and is adrift from common real-life happenings including, in particular, the playing of baseball, day upon day, at parties, barbecues and other social gatherings in homeowner backyards across the commonwealth, indeed across the nation.” She wrote that “a backyard game of baseball is not so unreasonably risky as to impose a duty on a homeowner to immediately end the game to protect guests from possible harm.”

She added that “the law is not right when it flies in the face of common sense. The reality is that baseball, the quintessential American game, is in constant play at countless gatherings and backyards across the commonwealth. If the majority’s theory of homeowner liability in these situations is the law of the commonwealth, these home-based games could be played only on large-acreage house lots, with such expanse that there is a mini baseball field, with sufficient outfield and infield buffer for stray hit balls. But big-lot baseball is not the reality of everyday life for most folks; rather, backyard and pickup baseball games are played every day in smaller lots within our cities and within densely populated suburbs.” She inquired where the court’s decision could lead with regard to other potentially dangerous games, such as horseshoes, volleyball and bocce.

This decision, when considered in light of the SJC’s decision in Papadopoulos v. Talbot Corp., in which it imposed liability upon a property owner for failing to remove a natural accumulation of snow or ice, demonstrates a disturbing trend to impose liability in situations in which it was not found before. We can only wonder what everyday activity will next be found by our courts to be actionable and to support a claim for damages.

Until we do, we should all be very, very careful. And that’s your attorney’s advice.

(Mr. Padis is with McDermott & Padis,
500 Granite Ave.)