Fylse Essay 1 June 2010

Adam accepted an invitation from a friend Dot to attend a baseball game. The seats
Dot purchased were very good, a few rows up from the field past first base. Adam had
recently immigrated to the US and knew nothing about baseball.

During the game, a player BRAD, hit a ground ball toward third base and the third
baseman threw the ball to the first base man. Brad though he was safe, but the first
base umpire called him out. Brad began to argue with the umpire. In frustration , Brad
threw his helmet to the ground. The helmet was made of hard plastic material and
bounced on the ground and flew into the stands, striking Adam in the side of the head
causing serious injury.
Adam never saw it coming toward him because he was looking around the stadium at
the time rather than on the play on the field. As he was unfamiliar with the game of
baseball, he was unaware that objects occasionally fly into the stands.

What arguments could Adam make in support of a claim of negligence, what defenses
can be reasonably asserted and who is likely to prevail in a lawsuit filed by:

1. Adam v Brad? Discuss

2. Adam v Dot? discuss

Answer

Adam v Brad

Was Brad negligent against Adam.

In order to support a lawsuit of negligence the following elements must be supported:

Duty ; The duty owed is that of a reasonable person to not cause harm or injury in the
same or similar circumstances. In the Maj view Cardozo states that the duty is owed
only to persons in the foreseeable zone of danger. Min view Andrews feels that the duty
is owed to all.
Here the information states that Adam is sitting the stands behind first base, a few rows
up. He would then be close enough to the field that if an object flew in the stands there
is a likelihood of injury and he would be in the foreseeable zone of danger.
Standard of Care - The standard is that of acting as a reasonable person standard.
Adam would argue that throwing the helmet to the ground so it could bounce into the
stand was not the action of a reasonable person. Brad would counter the argument in
that he threw the helmet to the ground and not into the stands.
Breech : the actions that would not be that of a reasonable person would then breech
the duty to act as a reasonable person in the same or similar situation. Here Brad’s
actions were not unreasonable and he will argue that the helmet bouncing into the stand
was not the intent or could have been seen as a result of throwing the helmet to the
ground in frustration. I believe that Brad didn’t breech his duty to act reasonably to
prevent the harm from occurring to Adam. It is likely that Brad will use an affirmative
defense that all of the elements of negligence is not met. Assuming however that Brad
did in fact breech his duty was he the actual or proximate cause of injury.
Causation
Actual cause is looked at in two ways: “but for” But for the actions of the D the P
would not have been injured. But for the fact that Brad threw his helmet down on the
grown then adam would not have been injured. This case shows that there is actual
causation. The second test for actual damage, is substantial certainty; Brad;s act of
throwing the helmet down in the first place would have prevented Adam from being hit in
the head or having injury. There is a relationship to the helmet thrown on the ground
that it was hard plastic and he should have known it could bounce to another location or
into the stand in which it dd. the actual and proximate causes of his injury was caused
by Brad. there for it is likely he would win on the causation point.
Damages: there have to be proven damages to person from the injury. in this case it
says that he was seriously injured when the helmet hit him.

Defenses
contributory negligence - did Adam act in an unreasonable matter to cause his injury. In
some jurisdictions recovery is barred if the P acted in such a way that caused or
contributed to his own injury. Here the concern is Adam didn’t duck when the helmet
was coming toward him to avoid the injury. Brad will argue that Adam had the last clear
chance to avoid injury. If the state considers contributory negligence as a way to bar all
recovery then Brad may win. Adam however, will argue that he was not negligent
because he was not from this country and didn’t know about the game. It is likely that
this fact will prevent a successful defense of contributory negligence.

Comparative fault - again in the majority of state if the P is negligent in their behavior
then the award may be reduced for damages as well. The argument for CF is similar in
this case (See Supra) and unlikely will prevail as a defense for Brad.

Assumption of the risk- if the activity is unusually dangerous and there is risk involve
that the person is aware of and still continues to participate then there may be a defense
for the P. Here Adam is unaware of the risks because is he unfamiliar with the game.
This is his first baseball game. Secondly, the chance of getting hit with the helmet of a
player is not the type of risk one would assume going to a baseball game. If he was hit
with the ball from a flyball then this is more likely the risk that one would assume going
to a game. This defense is unlikely to prevail.
In conclusion, Brad is likely to prevail on the negligence claim because Adam is unable
to prove all the elements of negligence and because Brad’s conduct was not a breech of
reasonable care it is unlikely that Adam will prevail.

Adam V Dot

Negligence
DUTY?
Action - Dot gave Adam tickets to a baseball game. She may or may not have been
aware of his recent migration to the united states. Nor does it say that she was aware
that he had never been to a game before. She didn’t act unreasonable by taking him to
the game.
DUTY TO WARN?
DId Dot have a duty to warn adam about the flying objects into the stands. There was
no special relationship other than friends. Therefore there was no duty to warn him
about flying objects into the stands.
BREECH - If their relationship was such-husband/wife, parent/child or teacher/student
then there might have been a consideration to warn Adam since it was his first game
and he was unaccustomed to the game. This would be a breech of duty to warn.
CAUSATION:
ACTUAL : (see Supra) Dot was not the actual cause of injury for adam. She
didn’t throw the helmet.
PROXIMATE: there is a consideration for her failure to warn as a proximate
cause. If she had warned him, then he might have had more vigilance during the game.
This failure to warn wouldn’t be a intervening cause of his injury therefore it is unlikely
that Dot will be held liable.
DAMAGES: See Supra
Defenses See supra.