Feld v. Borkowski - 790 N.W.2d 72 (Iowa 2010)

Rule:

Softball for purposes of tort liability is a contact sport, and this conclusion is sufficient to transform liability for an injury sustained by a participant while engaged in the sport from a standard of negligence to a standard of recklessness.

Facts:

During a batting practice on June 2, 2005, Feld was playing first base while Borkowski batted. Home plate and first base were sixty feet apart, the customary arrangement in slow-pitch softball. Borkowski, a right-handed hitter, swung at the pitch using an aluminum bat. He was known as a strong hitter. After about a dozen pitches, Borkowski hit a high fly ball into foul territory on the third base side of the field. A split second after the bat made contact with the ball, it left Borkowski's hands. Most of the team watched the fly ball sail over the head of the third baseman as the bat, almost simultaneously, flew directly down the first baseline, in a horizontal helicopter motion, toward Feld. Borkowski yelled Feld's nickname in an effort to warn him of the flying bat. The warning was ineffective, and the bat struck Feld in the forehead. Feld suffered a severe injury to his left eye.

Feld and his parents filed a negligence action against Borkowski. The lawsuit sought damages for medical expenses and other associated damages. Borkowski denied the claims of negligence in his answer to the petition and asserted assumption of the risk as an affirmative defense. He also claimed softball was a contact sport, and no liability could be imposed because his conduct was not reckless. Following discovery, Borkowski moved for summary judgment on the grounds liability was limited under the contact-sports exception and the facts of the incident failed to generate a jury question that his conduct was reckless. The district court granted summary judgment for Borkowski. The court of appeals affirmed.

Issue:

Did the district court err in granting summary judgment?

Answer:

Yes

Conclusion:

The Court concluded that softball, for purposes of tort liability, was a contact sport, transforming liability for an injury sustained by a participant while engaged in the sport from a standard of negligence to a standard of recklessness. Nevertheless, even under the heightened standard, the district court erred in granting summary judgment where there was a question of fact as to whether Borkowski acted recklessly. The expert's affidavit supported a reasonable conclusion that Borkowski did not continue to swing the bat in a normal manner after he hit the ball. The rare abnormality of the bat's flight pattern after the ball was struck at least supported an inference of recklessness. A jury could have concluded that Borkowski, knowing he had swung ahead of the pitch and that his body was out of position to make solid contact with the ball, continued his swing in a very unorthodox manner and released the bat in momentary frustration and anger. This inference was sufficient to support a jury question on recklessness.