Every spring, our firm scrounges together a group of attorneys and staff members to play in a local Co-Ed Law Softball League. Despite our stationary profession, some of us have maintained the athletic prowess of our youth and resemble actual softball players. Others (including me), simply try our best to finish each game without suffering serious injury. The games are meant to develop camaraderie both within the firm and the local bar. However, when you bring a group of lawyers together, you should expect a certain level of competitiveness. Diving catches. Head-first slides. Home plate collisions. Whatever it takes to win. But what happens when a “winning play” results in injury to your competitor? With this many lawyers on the field, certainly someone can develop some theory of liability. But will it be successful in a court of law? Recently, our very own South Carolina Supreme Court handed us down some guidance on the issue.
In Cole v. Boy Scouts of America, No. 27072 (S.C. Dec. 5, 2011), the Court addressed a challenging recreational softball game. The plaintiff and his son participated in a pick-up softball game during a Boy Scout camping trip. Despite the fact that the score was not being kept officially, some of the fathers were playing “aggressively” and hitting the ball with “full swings.” Gasp. During one such play, the defendant, attempting to score from second base, collided with the plaintiff, who was blocking home plate. As a result of the collision, the plaintiff suffered a closed head injury and spent two days in the intensive care unit. Thereafter, the plaintiff and his wife, personally and as guardian ad litem for their son, sued the Boy Scouts of America, the local Pack, and the defendant for personal injury, loss of consortium, and negligent infliction of emotional distress. The defendant moved for summary judgment on the grounds that he owed no duty to the plaintiff because the plaintiff assumed the risks incident to the sport of softball. The circuit court agreed, and the Supreme Court affirmed the decision.
On appeal, the plaintiff argued that the defendant’s behavior was inconsistent with the ordinary risks of softball because the game was intended to be noncompetitive. While we wish the Court would have used the opportunity to discuss the interrelatedness of sport and competitiveness and the horrors of non-score keeping, the Court opted for a more tactful approach. The Court indicated that a risk inherent in sport can be found at any level of play possibly more so in a non-professional arena where the players are less skilled and athletic. Whether or not the plaintiff was keeping score, he was still playing softball, which the court deemed a “contact sport.” Accordingly, by playing softball, the plaintiff assumed the risks inherent to the sport, including home plate collisions.
So what should we take from this opinion? First, according to our Supreme Court, recreational softball, like professional football, is a contact sport. Second, keeping a softball game “non-competitive” will not affect the legal analysis. Third, catchers are open targets, so long as you keep your conduct within the “scope of the game.”
We doubt the average softball player is considering his legal duty as he barrels towards a catcher blocking the plate. But just in case he was wondering, he can take solace in the fact hat the Court respects the game. Unlike the NFL, the Court is not going to penalize a player for conduct natural to the game itself. Even if home plate collisions violated some over-protective rec league softball rule, the Court noted that rule violations themselves are inherent to the sport.