The Montana Supremes Give Louisville Slugger the Shaft in a Decision Proving that Hard Cases Make Bad Law
Longtime readers of this blog may recall a post from a few years ago in which I reported on a jury verdict in which the maker of Louisville Slugger bats was held liable for failing to warn that a baseball hit with an aluminum bat can travel faster and with more force than a ball hit with a wooden bat. The jury's verdict was puzzling, since the jurors held that the bat itself was not defectively designed. Rather, liability was premised solely on a failure to warn.
Well, hard cases make bad law. Winterbottom v. Wright (1842) M&W 109. A few weeks ago the Montana Supreme Court affirmed the judgment against the bat maker, writing some dubious principles into Montana's law books. See Patch v. Hillerich & Bradsby Co., 2011 MT 175 (July 21, 2011).
No one can deny that this was an extremely tragic case; a baseball struck an 18-year-old pitcher in the temple and killed him during a baseball game. The all-too-human desire to award compensation for such a devastating loss is strong. But the way in which the Montana Supreme Court allowed the jury's verdict to stand fundamentally undermines failure to warn law in Montana.
First, it's important to note that aluminum bats are not defectively designed products. The jury didn't think so. The American Legion didn't think so, as they authorized the bats for use in their league games. And the coaches clearly didn't think so. This was not a jury verdict that was premised on the notion that aluminum bats should not have been used in the first instance.
A failure to warn cause of action requires that there be: (1) an information deficit -- i.e., something that the user did not know; (2) a duty on the part of the seller to inform the user -- i.e., to eliminate that information deficit; (3) a failure to meet that duty; and (4) causation -- the breach of the duty must have been an actual cause of the injury.
Here, the problem with the jury's verdict -- and the Montana Supreme Court's twisted opinion affirming it -- is that there was no information deficit and no "causation," as there was nothing that the manufacturer could have said that would have changed the players' use of the bat. Arguing that the warnings should have resulted in the bat being banned from use in league games is tantamount to finding a design defect -- which is something that the jury did not do.
It is beyond cavil that there was no information deficit regarding the potential for serious injury. Although aluminum bats may allow players to hit balls faster, harder and further than wooden bats (without the additional safety risk of the bat breaking, like wooden bats can do), they are specifically designed to minimize the bat speed advantage of aluminum over wood. And certainly not all hits from aluminum bats are faster than wooden bats. Indeed, as my prior post had noted, the ball that struck Brandon Patch was measured at 99.8 miles per hour, while nearly every home run hit with a wooden bat exceeds 100 miles per hour. Even with wooden bats, a baseball that is hit hard travels at speeds that can cause serious bodily injury.
Baseball fans know this, as stadium signs and ticket stubs warn of injury from baseballs. Pitchers definitely know this. Accordingly, there was nothing to warn the players about. They knew the sport of baseball presents a risk of serious injury from being struck by a ball regardless of the bat used.
The Montana Supreme Court, in its opinion, hides behind the notion that the "workability" of a warning is a jury question, but it never squarely addresses the fact that there simply was no information deficit that a warning could correct. Indeed, it never even acknowledges what Justice Rice notes in his concurrence: the plaintiffs never articulated for the jury what facts or instructions an "adequate" warning would contain.
Again, the court discusses the red herring that a warning could have been provided in places other than a sticker on the bat -- such as by putting warnings in ads or media releases. And it opines that "[s]uch warnings . . . would have communicated to all players the potential risk of harm associated with H&B's bat's increased exit speed." Slip op. at 8. But the court misses the fundamental point that plaintiffs failed to meet their burden to articulate the substance of what an adequate warning should have said that wasn't already known by the players. They already knew that balls hit hard -- by aluminum bats, and even by wooden bats -- travel at speeds that can cause serious bodily harm.
The Montana Supreme Court also concocts an exception to the "causation" requirement, which requires a plaintiff to prove that the proposed warning would have altered the user's conduct in a way that would have avoided the injury. Here, the court posits that because Brandon Patch is deceased, it would be "unfair" and "unjust" to apply a "self-serving 'magic words' requirement here." Slip op. at 11. Thus, the court applies a heeding presumption, holding that the jury could presume that Brandon "would have heeded a warning had one been given." Id. In fact, it articulates a rule of law for all products liability failure to warn claims where the product user is deceased, that "'the jury may be permitted to infer that a warning would have been heeded and that the failure to warn was a proximate cause of the injury.'" Id. (citation omitted).
Of course, the problem is that there was no realistic way for Brandon to "heed" the plaintiffs' proposed unarticulated warning that fast balls hit by aluminum bats can cause serious injury. What was he to do, given that aluminum bats were used in the league? Urge the batter to hit the ball with less force? As the pitcher, he already faced the same risk of injury from balls hit by wooden bats. At best, plaintiffs might have suggested -- although it appears that they did not -- that "heeding" the warning would have meant not using the aluminum bat at all in league games. But that is tantamount to a finding that the risks of the design outweigh its benefits and, as such, that conclusion would be wholly irreconcilable with the jury's determination that the bat was not defectively designed.
By not requiring the plaintiffs to identify the information deficit and specify precisely what warning should have been conveyed, and then ignoring the causation requirement by using a presumption that an unspecified warning would have been "heeded," the Montana Supreme Court appears to have bent the law to achieve a desired result. But in doing so, it has created a problem that will recur in product liability cases in that state for years to come.
It also bears noting that the Patch case presented a question on the applicability of the assumption of risk defense. By statute, the legislature has declared that there is no liability where "'[t]he user or consumer of the product discovered the defect or the defect was open and obvious and the user or consumer unreasonably made use of the product and was injured by it.'" Slip op. at 12 (citation omitted). That statute was subsequently interpreted by the Montana Supreme Court as not applying without evidence that, using a subjective standard, the victim knew he would suffer serious injury or death and still voluntarily exposed himself to the danger. What does not appear to have been considered by the court prior to Patch was whether the assumption of risk defense would apply where the risk of harm was common knowledge. The court in Patch reflexively applied the subjective standard, arguing that there was no evidence in the record of what Brandon knew.
This stands in stark contrast to the general rule applicable to spectators at baseball games. See Walter T. Champion, Jr., Fundamentals of Sports Law, Section 6.3 (Nov. 2010) ("[T]he usual rule is that a spectator cannot recover for ordinary risks inherent to the sport."); Thurmond v. Prince William Professional Baseball Club, Inc., 265 Va. 59, 574 S.E.2d 246 (Va. 2003) (despite the subjective nature of the assumption of risk defense generally, surveying cases from across the nation to conclude with them that "as a matter of law, a spectator assumes the normal risks of watching a baseball game, which includes the danger of being hit by a ball batted into an unscreened spectator area"). If this is the rule for baseball spectators, one can imagine how obvious most courts would find the dangers to be to actual players.
