Academic journal article
By Burch, Lauren; Young, Sarah J.
JOPERD--The Journal of Physical Education, Recreation & Dance , Vol. 82, No. 7
Benjamin Feld, Larry Feld, and Judith Feld v. Luke Borkowski 790 N.W.2d 72 (2010)
On June 2, 2005, Benjamin Feid was playing first base on a slow-pitch softball team when right-handed batter Luke Borkows-ki swung and hit a foul down the third-base line. Although the ball went into foul territory, the bat flew out of Borkowski's hands toward first base and hit Feld in the left eye. Both Feld and Borkowski were classified as experienced softball players. Borkowski was a strong hitter and had previously connected with approximately 12 pitches with no issues before the incident.
Feld and his parents filed a negligence suit against Borkowski, who denied negligence, claiming the injury was an inherent risk of participation and that softball is a contact sport.The Felds countered that softball was not a contact sport, and that the way Borkowski released the bat constituted reckless action. This claim was supported by testimony from Ed Servais, a baseball coach at Creighton University and former player. Servais stated that he had never witnessed a right-handed batter hit a ball toward third base and throw the bat toward first base. He further testified that this would be possible only if the batter turned 360 degrees after making contact and intentionally released the bat toward first base.
The district court granted Borkowski's request for summary judgment, concluding that softball is a contact sport that includes a risk of injury, such as a thrown bat. Additionally, the court felt the contact sport exception prevented any liability against Borkowski, as the Felds did not initially claim reckless conduct in their petition.The plaintiffs appealed, claiming an error in determining that softball is a contact sport.The case was reviewed by the Iowa Court of Appeals, which affirmed the decision of the district court, citing the inherent risk of contact in softball and a lack of evidence for the reckless conduct claim to constitute a material fact. The plaintiffs appealed to the Supreme Court of Iowa.
Iowa Supreme Court Findings
The Supreme Court of Iowa first examined the contact sport exception.The law does acknowledge that individuals owe a duty to act in a reasonable manner to reduce risk to others. However, exceptions exist where the duty is lower due to the nature of the activity. Participation in contact sports is referenced in precedents such as Leonard ex rel. Meyer v. Behrens (1999) and Nabozny v. Barnhill (1975), both of which emphasized that a participant has a duty to abstain from reckless or willful and wanton conduct during sport participation.The rules of a particular sport serve as notification of the inherent risks associated with participation, which cover actions both within and outside the rules of the sport (Leonard, 1999). As such, participants accept the inherent risks of the sport resulting from standard play and rules violations.
Secondly, the court had to determine whether softball was a contact sport. Typically the nature and rules of a sport are examined to determine whether contact resulting in injuries to others is a necessary component of the sport. Applying this standard to softball, the court felt that actions inherent to the game (i.e., swinging a bat), facilitated the risk of injury due to contact. In this case injury from contact with a thrown bat may be inherent to some fielders, but not inherent to all. In reviewing this, the court cited Leonard (1999), in which the various aspects of paintball were not examined to determine whether it was a contact sport; rather paintball was examined as a single activity. Using Leonard as precedent, the court felt it could not examine individual aspects of a sport to determine whether it was a contact sport, as this would allow for "multiple standards of care" (p. 79) within a particular sport. As such, softball was deemed to be a contact sport.
Separate from the inherent risks associated with participation in contact sports, actions deemed reckless or done with the intent to cause injury cannot be inherent to participation. …