Taylor v. baseball club of seattle

| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2017 LexisNexis

Jodi Hammond

User Name: Jodi Hammond

Date and Time: Thursday, October 26, 2017 11:28:00 AM EDT

Job Number: 55700932

Document (1)

1. Taylor v. Baseball Club of Seattle, 132 Wn. App. 32 Client/Matter: -None-

Search Terms: 132 Wash.App 32

Search Type: Natural Language

Narrowed by:

Content Type Narrowed by Cases -None-

http://www.lexisnexis.com/about-us/
http://www.lexisnexis.com/en-us/terms/privacy-policy.page
http://www.lexisnexis.com/terms/general.aspx
http://www.lexisnexis.com/terms/copyright.aspx
api/document?id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&idtype=PID&context=1000516
Jodi Hammond

Positive As of: October 26, 2017 3:28 PM Z

Taylor v. Baseball Club of Seattle

Court of Appeals of Washington, Division One

February 27, 2006, Filed

No. 55803-0-I

Reporter 132 Wn. App. 32 *; 130 P.3d 835 **; 2006 Wash. App. LEXIS 261 ***

DELINDA MIDDLETON TAYLOR, Appellant, v. THE BASEBALL CLUB OF SEATTLE, L.P., Respondent.

Subsequent History: [***1] Order Granting Respondent's Motion to Publish March 22, 2006.

Reported at Taylor v. Baseball Club of Seattle, L.P., 131 Wn. App. 1049, 2006 Wash. App. LEXIS 676 (2006)

Core Terms

ball, baseball, warm-up, assumption of risk, stands, throw, seats, spectators, sport, players, errant, struck, primary assumption of risk, games, warm, reasonable person, summary judgment, trial court, pitchers, stadium, played

Case Summary

Procedural Posture Appellant spectator challenged the judgment of the Superior Court of King County, Washington, granting summary judgment in favor of respondent baseball team, dismissing the spectator's negligence claim under the doctrine of implied primary assumption of risk.

Overview The spectator went to a baseball game. The spectator arrived more than an hour before the game began to see the players warm up and to get their autographs. Two players were throwing a ball back and forth. As the spectator stood in front of her seat, she looked away from the field and a ball got past one of the players and struck the spectator in the face, causing serious injuries. The spectator claimed she did not know how players warmed up and never thought about the possibility of a ball entering the stands and hurting someone during a warm- up. The appellate court ruled that a reasonable person in the spectator's position would realize that, if she was standing behind players who were throwing a ball back and forth, there was a possibility a ball might not be caught, and that an

uncaught ball might injure her if she did not pay attention. The spectator failed to articulate any cognizable reason for the appellate court to find that the warm-up portion of the event was not encompassed within the spectator's implied primary assumption of risk. The risk of injuries such as the spectator's were within the normal comprehension of a spectator who was familiar with the game.

Outcome The judgment was affirmed.

LexisNexis® Headnotes

Civil Procedure > Appeals > Summary Judgment Review > Standards of Review

HN1[ ] Summary Judgment Review, Standards of Review

In reviewing an order granting summary judgment, an appellate court engages in the same inquiry as the trial court.

Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Appropriateness

HN2[ ] Entitlement as Matter of Law, Appropriateness

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Wash. Super. Ct. Civ. R. 56(c). A court must make all inferences and resolve all ambiguities in favor of the nonmoving party. The motion should be granted only if, from all the evidence, a

https://advance.lexis.com/api/shepards?id=urn:contentItem:7XWW-GTB1-2NSD-N272-00000-00&category=initial&context=
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=LNHNREFclscc1
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=LNHNREFclscc2
https://advance.lexis.com/api/document?collection=statutes-legislation&id=urn:contentItem:5PKK-XWK0-004G-P45C-00000-00&context=
https://advance.lexis.com/api/document?collection=statutes-legislation&id=urn:contentItem:5PKK-XWK0-004G-P45C-00000-00&context=
Page 2 of 6

Jodi Hammond

reasonable person could reach but one conclusion.

Torts > ... > Defenses > Assumption of Risk > Athletic & Recreational Activities

HN3[ ] Assumption of Risk, Athletic & Recreational Activities

Throughout the United States, for many decades, courts have required baseball stadiums to screen some seats, generally those behind home plate, to provide protection to spectators who choose it. In Washington, the law has long been that baseball stadiums have a duty to screen some seats and, as a corollary, a spectator who takes a seat in the unscreened portion of a stadium assumes the risk of being struck by a baseball.

Torts > ... > Defenses > Assumption of Risk > Athletic & Recreational Activities

HN4[ ] Assumption of Risk, Athletic & Recreational Activities

A sport spectator's assumption of risk and a defendant sports team's duty of care are accordingly discerned under the doctrine of primary assumption of risk. The doctrine serves as a complete bar to recovery when an injury results from a risk inherent in the activity in which the plaintiff is engaged: Implied primary assumption of risk arises where a plaintiff has impliedly consented (often in advance of any negligence by defendant) to relieve defendant of a duty to plaintiff regarding specific known and appreciated risks.

Torts > ... > Defenses > Assumption of Risk > Athletic & Recreational Activities

HN5[ ] Assumption of Risk, Athletic & Recreational Activities

One who participates in sports "assumes the risks" which are inherent in the sport. To the extent a plaintiff is injured as a result of a risk inherent in the sport, the defendant has no duty and there is no negligence. Therefore, that type of assumption acts as a complete bar to recovery. The doctrine of primary implied assumption of the risk can perhaps more accurately be described as a way to define a defendant's duty.

Torts > ... > Assumption of Risk > Elements & Nature > Primary Assumption of Risk

HN6[ ] Elements & Nature, Primary Assumption of Risk

Under the implied primary assumption of risk, a defendant must show that plaintiff has full subjective understanding of the specific risk, both its nature and presence, and that he or she voluntarily chose to encounter the risk. Unlike contributory negligence, where the standard applied is that of a "reasonable person of ordinary prudence," implied primary assumption of risk applies a subjective standard, one specific to the plaintiff and his or her situation. The question is whether a plaintiff at the time of decision, actually and subjectively knew all facts that a reasonable person in the defendant's shoes would know and disclose.

Torts > ... > Defenses > Assumption of Risk > Athletic & Recreational Activities

HN7[ ] Assumption of Risk, Athletic & Recreational Activities

Warm-ups are integral to the game of baseball and a spectator assumes the risk of being struck by a baseball during warm- ups: Whether the ball is thrown or tossed during an inning of play or between innings lacks legal significance because, this throw occurred during a time which is necessary to the playing of the game, during which time the plaintiff has assumed the risk of injury from bats, balls, and other missiles.

Evidence > Admissibility > Expert Witnesses

HN8[ ] Admissibility, Expert Witnesses

See Wash. R. App. P. 702.

Headnotes/Syllabus

Summary

Nature of Action: A spectator who was injured by an errant throw during warm-up before a professional baseball game sought damages from the baseball team, the players involved in the errant throw, and the baseball stadium public facilities district.

Superior Court: After the plaintiff dismissed her claims

132 Wn. App. 32, *32; 130 P.3d 835, **835; 2006 Wash. App. LEXIS 261, ***1

https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=LNHNREFclscc3
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=LNHNREFclscc4
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=LNHNREFclscc5
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=LNHNREFclscc6
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=LNHNREFclscc7
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=LNHNREFclscc8
Page 3 of 6

Jodi Hammond

against the players and the public facilities district, the Superior Court for King County, No. 03-2-31297-5, Mary Yu, J., on January 28, 2005, entered a summary judgment in favor of the baseball team.

Court of Appeals: Holding that the plaintiff's claim is barred by the doctrine of implied primary assumption of the risk, the court affirms the judgment.

Headnotes

WASHINGTON OFFICIAL REPORTS HEADNOTES

WA[1][ ] [1]

Judgment > Summary Judgment > Determination > Interpretation of Facts

When ruling on a motion for summary judgment, a court must draw all inferences and resolve all ambiguities in favor of the nonmoving party. The motion should be granted if, from all the factual averments in the record, a reasonable person could reach but one conclusion.

WA[2][ ] [2]

Sports > Baseball Stadiums > Protection of Spectators > Duty of Care > In General

In general, baseball stadiums have a duty to screen some seats, and a spectator who takes a seat in the unscreened portion of a stadium assumes the risk of being struck by a baseball.

WA[3][ ] [3]

Negligence > Assumption of Risk > Implied Primary Assumption > What Constitutes > In General

Implied primary assumption of the risk arises where a plaintiff impliedly consents (often in advance of any negligence by a defendant) to relieve the defendant of a duty to the plaintiff regarding specific known and appreciated risks. The doctrine acts as a complete bar to recovery for an injury resulting from a risk inherent in the activity in which the plaintiff was engaged.

WA[4][ ] [4]

Negligence > Assumption of Risk > Implied Primary

Assumption > What Constitutes > Test

The doctrine of implied primary assumption of the risk bars a plaintiff from recovering for injuries resulting from a risk if the plaintiff (1) had full subjective understanding (2) of the presence and nature of the specific risk and (3) voluntarily chose to encounter the risk. Unlike contributory negligence, where the standard applied is that of a "reasonable person of ordinary prudence," the doctrine of implied primary assumption of the risk applies a subjective standard, one specific to the plaintiff and his or her situation. Under such standard, the question is whether the plaintiff, at the time of decision, actually and subjectively knew all facts that a reasonable person in the defendant's shoes would know and disclose.

WA[5][ ] [5]

Sports > Baseball Stadiums > Protection of Spectators > Pregame Warm-Up > Errant Throw Into Stands > Assumption of Risk

An errant throw of a baseball into the stands during pregame warm-up is an inherent risk of the game of baseball. A spectator in the stands who is familiar with the game of baseball and with the risks associated therewith who is injured by an errant throw is barred from recovering for the injury, pursuant to a claim for negligence, under the doctrine of implied primary assumption of the risk.

WA[6][ ] [6]

Evidence > Opinion Evidence > Expert Testimony > Qualifications > Professional Baseball Pitching Coach > Player Preparation for Games

A professional baseball pitching coach may qualify under ER 702 as an expert on why and how baseball players prepare for games.

Counsel: Bradford J. Fulton (of Carter & Fulton, P.S.), for appellant.

Thomas C. Stratton (of Eklund Rockey Stratton, P.S.), for respondent.

Judges: Authored by Stephen J. Dwyer. Concurring: Mary Kay Becker, Susan Agid.

Opinion by: Stephen J. DWYER

132 Wn. App. 32, *32; 130 P.3d 835, **835; 2006 Wash. App. LEXIS 261, ***1

https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=_1
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=_2
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=_3
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=_4
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=_5
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=_6
https://advance.lexis.com/api/document?collection=statutes-legislation&id=urn:contentItem:5PKK-XWG0-004G-P3C3-00000-00&context=
Page 4 of 6

Jodi Hammond

Opinion

[**836] [*34] P1 Dwyer, J. -- During warm-up before a Seattle Mariners game, a pitcher accidentally threw a ball past his teammate into the stands, injuring Delinda Middleton Taylor. The trial court properly dismissed Taylor's negligence claim against the Mariners under the doctrine of implied primary assumption of risk. The court also properly admitted expert testimony from the Mariners' pitching coach. We affirm.

FACTS

P2 On July 23, 2000, Delinda Middleton (now Delinda Middleton Taylor) went to a Mariners game at Safeco Field with her then-boyfriend, Glen Taylor, and her minor sons, Gavin and Jordan. Their seats were in section 114, along [*35] the right field [***2] foul line and four rows up from the field. They arrived more than an hour before the game began to see the players warm up and to get their autographs. As they walked to their seats, Taylor saw that players were practicing nearby. Mariners pitcher Freddy Garcia was standing in front of section 114 on or about the right field line facing center field. He was throwing a ball back and forth with Jose Mesa, who stood in right center field approximately 120 feet away. As Taylor stood in front of her seat, she looked away from the field and a ball thrown by Mesa got past Garcia and struck Taylor in the face, causing serious injuries.

P3 Taylor sued the Seattle Mariners, Jose Mesa, Mirla Mesa, and Freddy Garcia, asserting that they were liable for the allegedly negligent warm-up throw. 1

P4 The Mariners moved for summary judgment, claiming that (1) their duty to protect [***3] spectators from balls entering the [**837] stands was satisfied by providing a protective screen behind home plate, and (2) Taylor was familiar with baseball and the inherent risk of balls entering the stands and therefore assumed the risk of her injury.

P5 With respect to their assumption of risk defense, the Mariners relied on the following facts. Taylor was a Mariners fan; she had gone to one game at the Kingdome, and she watched their games on television. Taylor knew professional ballplayers do not always catch the ball and that the ball could leave the field during a game. Also, Taylor's son Gavin

1 Taylor voluntarily dismissed her claims against Jose Mesa, Mirla Mesa, Freddy Garcia, and the Washington Baseball Stadium Public Facilities District.

played baseball for approximately six years and her son Jordan played for seven years. She went to almost all of their games, during which she saw balls enter the stands.

P6 The Mariners' pitching coach Bryan Price testified that the pitchers warm up by playing "long toss," during which they throw the ball back and forth at increasing distances, with one standing on or near a foul line and the other in center field. Price stated that this method is [*36] followed to avoid other players who are warming up, including the visiting team, and minimize the possibility that a player could be hit by an errant [***4] throw. Price further claimed that this warm-up procedure, though unwritten, is customary to the sport and followed at every baseball level, from Little League to the Major Leagues.

P7 Taylor argued that summary judgment for the Mariners should not be granted because she was not aware that her circumstances posed any risk of injury. She claimed she did not know how players warmed up and never thought about the possibility of a ball entering the stands and hurting someone during a warm-up. Taylor further argued that the Mariners' warm-up method was negligent, contending that they should have a formal policy prohibiting pitchers from practicing near the stands.

P8 The trial court granted the Mariners' motion and dismissed Taylor's claims. Taylor appeals.

DISCUSSION

P9 Taylor contends that the trial court erred in dismissing her claims against the Mariners on summary judgment. Specifically, she argues that there are issues of material fact regarding whether the Mariners' warm-up method was negligent and whether she assumed the risk of being injured by an errant throw.

I. Standard of Review

WA[1][ ] [1] P10 HN1[ ] In reviewing an order granting summary judgment, an appellate court engages in the same [***5] inquiry as the trial court. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996); Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994). HN2[ ] Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c); Nivens v. [*37] 7-11 Hoagy's Corner, 133 Wn.2d 192, 197-98, 943 P.2d 286 (1997). The

132 Wn. App. 32, *32; 130 P.3d 835, **835; 2006 Wash. App. LEXIS 261, ***1

https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=WA7
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=clscc1
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:3RWN-D4Y0-003F-W0B6-00000-00&context=
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:3RWN-D4Y0-003F-W0B6-00000-00&context=
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:3S3J-VW70-003F-W193-00000-00&context=
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:3S3J-VW70-003F-W193-00000-00&context=
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4JCK-67K0-0039-41HB-00000-00&context=&link=clscc2
https://advance.lexis.com/api/document?collection=statutes-legislation&id=urn:contentItem:5PKK-XWK0-004G-P45C-00000-00&context=
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:3RJN-4D40-0039-41Y9-00000-00&context=
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:3RJN-4D40-0039-41Y9-00000-00&context=
Page 5 of 6

Jodi Hammond

court must make all inferences and resolve all ambiguities in favor of the nonmoving party. Degel, 129 Wn.2d at 48. The motion should be granted only if, from all the evidence, a reasonable person could reach but one conclusion. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 350, 588 P.2d 1346 (1979).

II. Implied Primary Assumption of Risk

WA[2][ ] [2] P11 HN3[ ] Throughout the United States, for many decades, courts have required baseball stadiums to screen some seats--generally those behind home plate--to provide protection to spectators who choose it. See, e.g., [***6] Edling v. Kan. City Baseball & Exhibition Co., 181 Mo. App. 327, 168 S.W. 908 (1914); see also Crane v. Kan. City Baseball & Exhibition Co., 168 Mo. App. 301, 304, 153 S.W. 1076 (1913). In Washington, the law has long been that baseball stadiums have a duty to screen some seats and, as a corollary, a spectator who takes a seat in the unscreened portion of a stadium assumes the risk of being struck by a baseball. See Leek v. Tacoma Baseball Club, Inc., 38 Wn.2d 362, 229 P.2d 329 (1951).

[**838] WA[3][ ] [3] P12 HN4[ ] A sport spectator's assumption of risk and a defendant sports team's duty of care are accordingly discerned under the doctrine of primary assumption of risk. The doctrine serves as a complete bar to recovery when an injury results from a risk inherent in the activity in which the plaintiff was engaged: "Implied primary assumption of risk arises where a plaintiff has impliedly consented (often in advance of any negligence by defendant) to relieve defendant of a duty to plaintiff regarding specific known and appreciated risks." Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 497, 834 P.2d 6 (1992). The court in Scott [***7] further explained:

HN5[ ] One who participates in sports "assumes the risks" which are inherent in the sport. To the extent a plaintiff is injured as a result of a risk inherent in the sport, the defendant has no duty and there is no negligence. Therefore, that type of assumption [*38] acts as a complete bar to recovery. The doctrine of primary implied assumption of the risk can perhaps more accurately be described as a way to define a defendant's duty.