Pitre v. Employers Liability Assurance Corp.

234 So. 2d 847 (1970)

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Nature of the Case

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Facts

A terrible accident occurred at the baseball concession stand operated at the annual Fireman's Fair conducted upon public school grounds in the City of Thibodaux by the Fire Department. The funds raised are used exclusively to purchase equipment for the companies concerned. The fair is designed to attract people of all ages. It nets the Fire Department approximately $40,000 -- $45,000 yearly. Beyond the counter were the patrons throw the balls; there were no barriers, ropes or other devices to restrain the thrower or isolate or separate him from spectators or other patrons attending the fair. Two members of the Fire Department operated the concession. It is conceded that LeBouef, who was seventeen years of age at the time, in the act of 'winding up' to pitch a baseball at the concession, struck young Anthony Pitre in the left temple region. Anthony died. Ps, Anthony's parents, sued for damages. D, the insurers were sued directly and they both third partied David LeBouef, the patron who struck Anthony. LeBouef's testified that he did not see Anthony prior to the accident. He acknowledged inadvertently striking the child on the side of the head as he drew his hand behind him to pitch a ball. He recalled that the area near the baseball concession was not particularly crowded. He also observed that there was no expressly designed 'pitcher's box' marked off outside the counter to restrict the area from which the participant was required to throw. An expert on conducting fairs testified he has had twenty years experience in the business. He has operated approximately 48 similar baseball concessions or stands. He noted that safety is not considered as large a problem with concessions of this type as in the case of mechanical rides and amusement devices. His visits to hundreds of similar concessions at other fairs showed the only significant hazard was that incident to ricocheting baseballs. He has never seen or used restraining ropes or barriers to isolate participants from spectators. He conceded that professional fairs draw a line on the ground six feet from the counter and require participants to stand within this line when throwing. He explained that since the thrower must cast down at the targets, the closer the participant is to the target, the less accurate he is because of the trajectory involved at a short distance. The farther away the thrower stands, the more level his trajectory and the greater the accuracy. He noted that the six-foot restraining line used by professionals has no relation to safety. He further noted that insurance company safety engineers have always approved the operation of his baseball stands without barriers and even though his employees remain inside the concession area as did defendant's operators in the instant case. He also stated that, as a matter of policy, he did not permit very young persons to patronize such a game because they lacked physical strength to knock over the dolls. The trial court dismissed the third party demands as to LeBouef, rendered judgment in favor of P in the sum of $14,779.26 and $12,500.00, respectively. Ds appealed.