Negligence – on the Base Path – Play Ball (Carefully) #315

By Gerry Neely
B.A. LL.B.

With so many licensees involved in recreational team sports, such as softball, hockey or basketball, the question of the liability of a person who injures another during the course of a game may be of some interest. This was discussed in a BC Court of Appeal decision of a softball game. A 220 lb. male batter, who had hit a fly ball into right centre field, collided with the first baseman who had her back to the runner, watching the out-of-play ball. Although athletic, she was small and sustained compound fractures of her leg which failed to heal, despite a number of surgical procedures.

It was unclear from the evidence whether she was on the base path or not. She sued for damages and lost in the Supreme Court. At both that level and the Court of Appeal, there was agreement that anyone who participates in a sport accepts a risk of injury by reasonable competitors acting as reasonable persons.

The trial judge concluded that the base runner could only be found liable if there was an intent to injure or a reckless disregard of the first baseman’s safety. While it was apparent that there was no deliberate attempt to injure, it was unclear whether there was a reckless disregard of the first baseman’s safety. As a result, the base runner succeeded.

The Court of Appeal rejected this test of liability, saying that it must be more flexible, depending on the facts of the incident. These include "the speed, the amount of body contact and the stresses in the sport, as well as the risks the players might reasonably be expected to take during the game, acting within the spirit of the game and according to standards of fair play. A breach of the rules may be one element in that issue but not necessarily definitive of the issue". The Court of Appeal would have decided whether the batter was liable but, since the evidence was unclear, referred the matter back for a new trial.¹

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