Sanchez v. Hillerich & Bradsby Co.

104 Cal.App.4th 703 (2002)


P, a pitcher, was seriously injured when struck by a line drive hit by an aluminum bat. Dominic Correa. P suffered serious head injuries from the incident. Correa, the batter, was using an aluminum bat, the Air Attack 2, designed and manufactured by D. The NCAA establishes rules for equipment used in athletic events, including baseball bats. The bat used by Correa was a newly designed hollow aluminum alloy bat with a pressurized air bladder which, according to its designer, substantially increases the speed at which the ball leaves the surface of the bat. Correa was supplied with the bat pursuant to an agreement between USC and D, which provided that USC would receive compensation for using D's Louisville Slugger equipment exclusively. At the time of the accident, the NCAA rules allowed the use of metal bats, and the bat was made in compliance with NCAA standards. However, prior to the start of the 1999 season, the NCAA notified athletic conferences under its umbrella, including the Pac-10, of the dangerous nature of the newer metal bats and of its decision to implement new rules to decrease the speed of the batted balls effective August 1, 1999. The Pac-10 implemented some of the proposed standards prior to the 1999 baseball season. P had signed a disclaimer form acknowledging that his participation on the team carried a risk of injury, specifically including brain damage, and consenting to assume the risk of such injury. P filed suit against Ds alleging that the design and use of this particular bat significantly increased the inherent risk in the sport of baseball that a pitcher would be hit by a line drive. D moved for summary judgment in part claiming that P could not establish causation as a matter of law. Jack Mackay, the designer of the Air Attack 2, declared that he had been a designer and tester of bats for nine years and was a paid consultant for D's Louisville Slugger division. Mackay was present when time studies were performed on the bat at a Louisville Slugger testing center. He stated that the invention allowed a batter to hit a ball at speeds in excess of that which would have given a pitcher time to avoid being hit. He opined that the Air Attack 2 substantially increased the risk of a pitcher being hit by what he termed a 'come backer.' Mackay complained to his employers at the Louisville Slugger division of D about the increased risks of injuries, but the complaints were ignored and Marty Archer, president of the division, warned Mackay that he should not publicly discuss issues of safety. William Thurston, a college baseball coach and editor of the NCAA Baseball Rules Committee from February 1985 to July 2000, had initiated an NCAA study tracking pitcher injuries from high-performance aluminum bats. He concluded that the Air Attack 2 substantially increased the risk of a pitcher being hit by a line drive over the risk associated with wood bats or earlier generations of nonwood bats. He also compiled an analysis of statistics of college hitters and batters for the years 1997-2001, comparing their performance when using wooden bats versus aluminum bats and concluded there was a tremendous increase in hits and runs when aluminum bats were used.  Rhonda Hyatt testified that Justin Kiersby, the student athletic trainer for P's team, was in the dugout when the ball was hit and wrote down his observation that the ball was sent back at P at over 100 miles per hour. James G. Kent, who had a Ph.D. in kinesiology. Based on his training and review of the evidence, he opined that the ball which struck P's head was traveling between 101 and 107.8 miles an hour, probably closer to the latter speed than the former. This would have left appellant a reaction time of .32 to .37 seconds to avoid the ball. This was below the minimum reaction time accepted by the NCAA and other organizations of .39 seconds. As a result, he concluded that P's head injury resulted from the increased danger posed by this particular bat. The court granted D's motion on the ground that P would not be able to prove causation. P appealed.