No Plunks Barred

It seems the California Supreme Court has upheld legalized plunking. Reader David Ettinger sent me this today:

The California Supreme Court issued an opinion today that may be of interest to you. The court rejected a college baseball player's lawsuit alleging that he was injured by an intentional bean ball. The case is Avila v. Citrus Community College District:
http://www.courtinfo.ca.gov/opinions/documents/S119575.PDF

What makes the opinion notable is its holding that intentionally throwing at batters is an accepted part of the game.

Here are parts of the court's opinion:

The second alleged breach, the failure to supervise and control the Citrus College pitcher, is barred by primary assumption of the risk. Being hit by a pitch is an inherent risk of baseball. (Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 51-52; see also Mann v. Nutrilite, Inc. (1955) 136 Cal.App.2d 729, 734 [same re being hit by thrown ball].) The dangers of being hit by a pitch, often thrown at speeds approaching 100 miles per hour, are apparent and well known: being hit can result in serious injury or, on rare tragic occasions, death.9 Being intentionally hit is likewise an inherent risk of the sport, so accepted by custom that a pitch intentionally thrown at a batter has its own terminology: “brushback,” “beanball,” “chin music.” In turn, those pitchers notorious for throwing at hitters are “headhunters.” Pitchers intentionally throw at batters to disrupt a batter’s timing or back him away from home plate, to retaliate after a teammate has been hit, or to punish a batter for having hit a home run. (See, e.g.,Kahn, The Head Game (2000) pp. 205-239.) Some of the most respected baseball managers and pitchers have openly discussed the fundamental place throwing at batters has in their sport. In George Will’s study of the game, Men at Work, onetime Oakland Athletics and current St. Louis Cardinals manager Tony La Russa details the strategic importance of ordering selective intentional throwing at opposing batters, principally to retaliate for one’s own players being hit. (Will, Men at Work (1990) pp. 61-64.) As Los Angeles Dodgers Hall of Fame pitcher Don Drysdale and New York Giants All Star pitcher Sal “The Barber” Maglie have explained, intentionally throwing at batters can also be an integral part of pitching tactics, a tool to help get batters out by upsetting their frame of mind.10 Drysdale and Maglie are not alone; past and future Hall of Famers, from Early Wynn and Bob Gibson to Pedro Martinez and Roger Clemens, have relied on the actual or threatened willingness to throw at batters to aid their pitching. (See, e.g.,Kahn, The Head Game, at pp. 223-224; Yankees Aced by Red Sox, L.A. Times
(May 31, 2001) p. D7 [relating Martinez’s assertion that he would even throw at
Babe Ruth].)


Later, the court said:

It is true that intentionally throwing at a batter is forbidden by the rules of baseball. (See, e.g., Off. Rules of Major League Baseball, rule 8.02(d); National Collegiate Athletic Assn., 2006 NCAA Baseball Rules (Dec. 2005) rule 5, § 16(d), p. 62.) But “even when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.” (Knight,supra, 3 Cal.4th at pp. 318-319.) It is one thing for an umpire to punish a pitcher who hits a batter by ejecting him from the game, or for a league to suspend the pitcher; it is quite another for tort law to chill any pitcher from throwing inside, i.e., close to the batter’s body—a permissible and essential part of the sport—for fear of a suit over an errant pitch. For better or worse, being intentionally thrown at is a fundamental part and inherent risk of the sport of baseball.11 It is not the function of tort law to police such conduct.

footnote 11 says: The conclusion that being intentionally hit by a pitch is an inherent risk of baseball extends only to situations such as that alleged here, where the hit batter is at the plate. Allegations that a pitcher intentionally hit a batter who was still in the on-deck circle, or elsewhere, would present an entirely different scenario. (See Note, Dollar Signs on the Muscle . . . and the Ligament, Tendon, and Ulnar Nerve: Institutional Liability Arising from Injuries to Student-Athletes (2001) 3 Va. J. Sports & L. 80, 80, 111-112 [recounting the notorious 1999 incident in which Wichita State University pitcher Ben Christensen hit University of Evansville second baseman Anthony Molina with a pitch while Molina was still in the on-deck circle].)

footnote 12 says: The dissent takes issue with our deciding this question. (Conc. & dis. opn. post, at pp. ___ [pp. 5-7].) Notwithstanding the official condemnation we and the dissent cite, pitchers have been throwing at batters for the better part of baseball’s century-plus history. The taking of judicial notice of such matters is not reserved to trial courts, but lies within the power of every court. (Evid. Code, § 459.) To ignore this history in favor of reversal and remand would do nothing to enhance respect for the trial and appellate courts’ respective roles. Similarly, a declaration of the scope of a defendant’s duty is a statement of law. (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1004.) Where, as here, the pleadings and matters subject to judicial notice establish the defendant owed the plaintiff no duty, a case may properly be disposed of on demurrer, without further waste of judicial resources.


another part of the opinion:

Thus, the boxer who steps into the ring consents to his opponent’s jabs; the football player who steps onto the gridiron consents to his opponent’s hard tackle; the hockey goalie who takes the ice consents to face his opponent’s slapshots; and, here, the baseball player who steps to the plate consents to the possibility the opposing pitcher may throw near or at him. The complaint establishes Avila voluntarily participated in the baseball game; as such, his consent would bar any battery claim as a matter of law.


conclusion of the opinion:

In the possibly apocryphal words of New York Yankees catcher Yogi Berra, “It ain’t over till it’s over,” but this means that for Avila’s complaint against Citrus College, it’s over.


From a fan (of baseball and your website, not of this opinion),
David Ettinger

So I guess the lesson is get out of the way, or take your base and quit crying about it. But, Craig Biggio taught us that already.