Pitchers in California Can Intentionally Throw at a Batter's Head

Last month the California Supreme Court decided that all pitches intentionally thrown at a batter's head are "a fundamental and inherent risk of the sport of baseball" (Calif. Supreme Court: Ballplayer Can't Sue for Bean Ball). The plaintiff, Jose Avila, was a junior college baseball player who was struck in the head with a pitch thrown by a pitcher on the opposing team. The plaintiff alleged that the pitcher had intentionally thrown at his head to retaliate for a player on the pitcher's team being hit by a pitch in the previous inning. According to the complaint, his batting helmet cracked and he suffered "unspecified serious personal injuries."

The plaintiff sued the school district, alleging negligent supervision over its pitcher. Regarding this claim, the Court held that the plaintiff assumed the risk of injury. Justice Kathryn Mickle Werdegar wrote for a 6-1 court:

"Being hit by a pitch is an inherent risk of baseball. 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. Even if the Citrus College pitcher intentionally threw at Avila, his conduct did not fall outside the range of ordinary activity involved in the sport."

While the plaintiff did not allege a battery claim, the dissent argued that the plaintiff should have been permitted to amend his complaint. However, Justice Werdegar said it wouldn't have mattered because anyone who plays a sport has consented to physical contact and understands the rules of the game:

"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 slap shots; and, here, the baseball player who steps to the plate consents to the possibility the opposing pitcher may throw near or at him."

In terms of whether the beanball in baseball meets the age-old "part of the game" definition for determining tort liability, I think Justice Werdegar is half right. There are some situations when it is part of the game, for example, in order to "protect your teammates" (Justice Werdegar referred to it as retaliating after a teammate has been hit), or when a batter walks off a home run when his team is up by a dozen runs, or maybe when a batter "pops off" in the press about the opposing team or opposing pitcher. However, I think the justice is incorrect that beanballs are part of the game in order "to disrupt the batter's timing" or in order "to punish a batter for having hit a home run". And it is NEVER part of the game, under any circumstance, to intentionally throw at a batter's head (such as was alleged in this case). Throwing a brushback pitch is not the same as intentionally throwing at the head.

But maybe the case was correctly decided after all. At first glance, one has to seriously question whether it is the proper function of tort law to even police beanballs. Assuming that I am correct about the circumstances under which the beanball is and is not part of the game (and assuming the plaintiff can actually prove intent which is always very difficult), should courts be drawing such fine distinctions between permissible and impermissible beanballs? As a policy matter, should the California Supreme Court instead have held that it is acceptable for a pitcher to intentionally hit a batter below the neck, but only if it involves situation A, B or C?

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