It’s important to note that I am not an attorney and none of what follows should be construed as legal advice

All good lawsuits begin with a story.

A little over a month ago, the Cardinals and Reds squared off in a heated NL Central series (at the time, the Cardinals were “still in it”). Tensions boiled over in game two when Yadier Molina and Brandon Phillips got into a heated first-inning exchange that erupted into a full out brawl.

While managers Tony LaRussa and Dusty Baker shouted it out on the field, various Cardinals and Reds argued with their fists, and in the case of Johnny Cueto, his feet. Scott Rolen went after former teammate Chris Carpenter, while “Cueto . . . ended up against the (backstop) screen, furiously kicking players away.”

Some of Cueto’s kicks hit catcher Jason LaRue in the face, causing a severe concussion. As a result, LaRue is retiring, though not because he particularly wants to. Said LaRue:

“I was going to retire on my own terms …. Does it suck that my career is over because Johnny Cueto started kicking me in the head? Yes, it sucks.”

For this article, I want to focus on something collaterally mentioned by Joe Strauss of the St. Louis Post-Dispatch:

Friends say that LaRue contemplated taking legal action against Cueto for the on-field assault that led to his condition but has since discarded the idea. La Rue says that he has no interest in pursuing the matter. However, he remains peeved over the actions of a player Carpenter described as ‘some idiot.

The idea raises an interesting question: Can a baseball player sue for the torts he sustains in a baseball game?

A tort is a wrongful act. It can be intentional or accidental. Though torts give rise to civil liability (that is to say that a person or business, rather than just the state, can sue the offender), some torts can also give rise to criminal liability (you know, Law & Order stuff). Intentional torts that give rise to civil liability include assault ((an act which is made with the intent of causing a harmful or offensive contact (or an imminent apprehension thereof) which places an another in an imminent apprehension (a cognizant, reasonable fear of harm which is ready to occur without significant delay)) and battery (an act which the actor intends to be harmful or offensive (or put another in an imminent apprehension thereof) which directly or indirectly results in a harmful or offensive contact to another). For our purposes, these simplified definitions will do. It is worth noting, however, that though an act often is both an assault and a battery, such is not always the case (e.g., someone hits you from behind—battery only).

Generally, one who commits a tort is liable to those he harms. Of course, there are a plethora of exceptions and defense to the general rule, one of which is called “implied assumption of the risk” (technically the issue here, as this is an intentional tort, is “consent,” but the rubric for analysis here would be the same as assumption of the risk, which applied to negligence claims). That defense can exist when a plaintiff, knowing of the risks present and appreciating their quality, voluntarily chooses to encounter them. The theory is that when a person decides to undertake an activity (especially one which is not necessary) that carries known risks of harm, those organizing and operating within the scope of that activity should not be held liable.

A few years ago, the California Supreme Court addressed the issue of assumption of the risk as it applies to baseball in Avila v. Citrus Community College District. A state court decision is generally non-binding on a court in any other state or in a federal court. However, the court’s decision is well reasoned and would provide persuasive authority in another jurisdiction.

Avila involved a student who was playing college baseball for the Rio Hondo Roadrunners. In a preseason road game against the Citrus Community College Owls, a Roadrunners pitcher hit an Owls batter with a pitch. In the next inning, when Avila came to bat, the Owls pitcher hit Avila in the head with a pitch, cracking his batting helmet. The first base coach told Avila to stay in the game, but Avila was removed later in the inning due to continuous pain, numbness and dizziness.

As a result, Avila suffered what the court termed “unspecified serious personal injuries.” Claiming that the pitch thrown at him was intentional and in retaliation (a “beanball”), Avila sued both schools, his manager, the helmet manufacturer, and various other entities and organizations for his injuries. Only his claims against the Citrus Community College District reached the California Supreme Court.

The court held:

Being hit by a pitch is an inherent risk of baseball. . . . The dangers of being hit by a pitch, often thrown at speeds approaching 100 miles per hour, are apparent and well known: being hit can result in serious injury or, on rare tragic occasions, death. Being intentionally hit is likewise an inherent risk of the sport, so accepted by custom that a pitch intentionally thrown at a batter has its own terminology: “brushback,” “beanball,” “chin music.” In turn, those pitchers notorious for throwing at hitters are “headhunters.” 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. . . . Some of the most respected baseball managers and pitchers have openly discussed the fundamental place throwing at batters has in their sport. In George Will’s study of the game, Men at Work, one-time Oakland Athletics and current St. Louis Cardinals manager Tony LaRussa details the strategic importance of ordering selective intentional throwing at opposing batters, principally to retaliate for one’s own players being hit. . . . As Los Angeles Dodgers Hall of Fame pitcher Don Drysdale and New York Giants All-Star pitcher Sal “The Barber” Maglie have explained, intentionally throwing at batters can also be an integral part of pitching tactics, a tool to help get batters out by upsetting their frame of mind. Drysdale and Maglie are not alone; past and future Hall of Famers, from Early Wynn and Bob Gibson to Pedro Martinez and Roger Clemens have relied on the actual or threatened willingness to throw at batters to aid their pitching. (See, e.g., Kahn, The Head Game, at pp. 223–224; Yankees Aced by Red Sox, L.A. Times (May 31, 2001) p. D7 (relating Martinez’s assertion that he would even throw at Babe Ruth)). While these examples relate principally to professional baseball, “[t]here is nothing legally significant … about the level of play” in this case. . . . The laws of physics that make a thrown baseball dangerous and the strategic benefits that arise from disrupting a batter’s timing are only minimally dependent on the skill level of the participants, and we see no reason to distinguish between collegiate and professional baseball in applying primary assumption of the risk. It is true that intentionally throwing at a batter is forbidden by the rules of baseball. (See, e.g., Off. Rules of Major League Baseball, rule 8.02(d); Nat. Collegiate Athletic Assn., 2006 NCAA Baseball Rules (Dec. 2005) rule 5, § 16(d), p. 62.) But “even when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.” . . . It is one thing for an umpire to punish a pitcher who hits a batter by ejecting him from the game, or for a league to suspend the pitcher; it is quite another for tort law to chill any pitcher from throwing inside, i.e., close to the batter’s body—a permissible and essential part of the sport—for fear of a suit over an errant pitch. For better or worse, being intentionally thrown at is a fundamental part and inherent risk of the sport of baseball. It is not the function of tort law to police such conduct.

As the Avila decision makes clear, baseball players cannot sue the league or umpires or other players for certain acts, even intentionally hitting a player, that occur on the field of play. If Carpenter, for example, intentionally hits Rolen in the next Cardinals-Reds match-up in retaliation for the events of Aug. 10, Rolen would not be able to successfully sue Carpenter for assault/battery.

However, assumption of the risk is a function of foreseeability. The law calls this the “scope of risk.” Implied assumption assumes that the injured party knows something of the risk. That level of knowledge is set by expectations, disclosure, foreseeability and extent. Assumption of the risk, therefore, is a limited concept. Remote risks and degrees of harms that exceed what’s reasonable or expected are generally not “assumed” by those undertaking a given activity and can give rise to liability.

For example, if I enroll in an ATV training course and the ATV I’m given explodes, or the course features quicksand, the operators of that course may be liable for my injuries unless, more or less, they disclosed to me and made me aware of the the possibility of exploding engines and quicksand hazards.

To this end, are baseball brawls an “inherent risk” assumed by the players? On one hand, they happen quite a bit and, given the high level of adrenaline pumping in any competitive sporting match, are arguably foreseeable. However, on the hand, Footnote 11 to the Avila decision seems to indicate otherwise:

The conclusion that being intentionally hit by a pitch is an inherent risk of baseball extends only to situations such as that alleged here, where the hit batter is at the plate. Allegations that a pitcher intentionally hit a batter who was still in the on deck circle, or elsewhere, would present an entirely different scenario. . . .

Though it may be foreseeable that benches will clear over the course of a baseball season (and maybe even punches thrown), it is unlikely that a court will rule that assault and battery is an inherent risk of the sport which is assumed. While the court recognized that hit batsmen are a consequence and strategy of the sport, assault and battery serve no such function. Rather, they only give the sport (and often players) a black eye. Such conduct seems to cross the line of internal rules policing and into the realm of civil liability. So there might be liability from a brawl such as the one on Aug. 10 if a player brought legal action. The question of liability would likely come down to an interpretation of intent.

It is important to note that intent and motive are separate and independent concepts. One’s motives may be pure but they may still intend to do an act (and thus be held liable in the eye of the law).

Readers may ask “What if Johnny Cueto did not intend to hurt Jason LaRue?” In the eye of the law, intent is not limited to the intended. For example, If A intends to harm B or persons in general and A in fact harms C with his actions, A is liable to C under the doctrine of transferred intent. Thus, if Cueto intended (irrespective of motive) to kick about generally with players on the ground or intended to kick a specific player, he might be held liable for the injuries he caused.

Of course, if LaRue were to sue, Cueto might claim a lack of intent or perhaps self-defense. Those are questions for the jury to decide.