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  • John C. Heflebower vs. Guy Desrosiers23 Unlimited - Other PI/PD/WD document preview
  • John C. Heflebower vs. Guy Desrosiers23 Unlimited - Other PI/PD/WD document preview
  • John C. Heflebower vs. Guy Desrosiers23 Unlimited - Other PI/PD/WD document preview
  • John C. Heflebower vs. Guy Desrosiers23 Unlimited - Other PI/PD/WD document preview
						
                                

Preview

ARTHUR J. COLIN G. ROBINSON CASEY MCCARTHY & WOOD, [SBN. 123273] [SBN. INC. 191410] FDQCL E D 227 N lst Street San Jose, California 95113 ERESNO COUNTY SUPERIOR Telephone: (408) 298—7120 COURT Facsimile: (408) 298-0477 ' DEPT. 403 Attorneys for Defendant RYAN BEARD \OOOQGNUI-BMNH SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO hic: hihd JOHN C. HEFLEBOWER, individually, and Case No.14 CE CG 01418- as guardian ad litem for JOSHUA HEFLEBOWER, a minor child; TYLER TRIAL BRIEF 0F DEFENDANT RYAN INC. to hi HEFLEBOWER, . BEARD W001), be hi Plaintiffs, Date: December 14, 2015 & 4% hi ATTORNEYSATLAW Time: 9:00 am. vs. Dept.: 403 Ln hi ROBINSON RYAN BEARD; and DOES 1-20, inclusive, Ch hi Defendants. ~J hi 00 hi AND RELATED CROSS-ACTION. H9 hi be :3 Plaintiff John Heflebower ("Plaintiff") was injured when Defendant Ryan Beard ("Ryan"). be hi accidently letgo of a metal bat while swinging itduring a backyard game of home run derby. Plaintiffs sons claim bystander injuries. There are different versions of what happened — Plaintiff b0 to b0 no says he was not participating but Mr. Beard says he was. Under any version, primary assumption h) 4; of the risk bars Plaintiffs' claims because thrown bats are a risk inherent in baseball and as a be Ln participant Mr. Beard had no duty to Plaintiffs, who were all in the designated play area for the ha Ch game. Knight v. Jewett, 3 Cal. 4th 296, 314-15 (1992); Rudnick v. Golden W. Broadcasters, 156 to \J Cal. App. 3d 793, 802 (1984). Moreover, under any fact version, secondary assumption of the risk be 00 places the risk on Plaintiff, because he was well aware of the risks and accepted them anyways. 1041252 I TRIAL BRIEF OF DEFENDANT RYAN BEARD I. PLEADINGS, PARTIES AND ATTORNEYS Plaintiff has sued for negligence and his sons Josh and Tyler Heflebower ("Minor Plaintiffs") for negligently inflicted emotional distress.1 Plaintiffs' causes of action are all tethered to the allegation that Defendant Ryan Beard "inadvertently" released a baseball bat while swinging in the backyard. are represented by Jason Helsel of Folwer, Helsel, Vogt in Fresno. NDQQGNUI-RMNI—i it Plaintiffs Defendant Ryan Beard answered the complaint denying all allegations and asserting an affirrnative defense that Plaintiffs voluntarily assumed the risk of injury. Mr. Beard is represented by Arthur Casey of Robinson & Wood, Inc. in San Jose. Defendant Debby Desrosiers and her husband were represented by McCormick Barstow. They were the homeowners of the house at which the injury occurred. Plaintiffs and Ms. Desrosiers settled for $30,000 and an order of good faith settlement was obtained. INC. 11. LAC—TS On July 4, 2013 LAW WOOD, Plaintiff Heflebower ( age 53 at the time of the accident) was an AT & experienced baseball fan, player and coach. He played the game through junior college, coached ATTORNEYS his kids from little league to high school, and had been to hundreds of professional and ROBINSON recreational games. Plaintiff had twenty (20) times witnessed batters letgo of bats while swinging —sometimes hitting people. Plaintiff understood that thrown bats are part of the game. His sons NNNNNNNNNHHHHHHI—lt—lI—ll—l (Tyler, age 16 at the time of the accident, and Joshua, age 13 at the time of the accident) were both ooxlm-hMNcoelNUIAOJNr-tc experienced youth players. Prior to the accident, Plaintiff, Ryan Beard (age 16 at the time of the accident) and Plaintiffs sons played homerun derby in the Desrosiers backyard. Plaintiff explained that home run derby is a recreational baseball skillsgame in which there isa pitcher and a batter, and the pitcher throws strikes so that the batter can try to hit the ball as far as he can. Plaintiff knew the batters were using an aluminum bat with a wiffleball, because he took several turns as a batter and was a field player. (Plaintiff only admits to one turn batting). Plaintiff also knew the pool was in the field of play because he saw several homeruns land in the pool. Plaintiff admitted that itwas 1 Plaintiffsdo not allege that Mr. Beard was reckless or increased the risks inherent in their baseball activity. 1041252 2 TRIAL BRIEF OF DEFENDANT RYAN BEARD foreseeable that the bat might accidently slip out of the batter's hands that day as they played the game. At no time before he was injured did he object to the game being played. The game was interrupted for dinner. After dinner, Plaintiff says he did not resume the game and that instead he went swimming in the pool. Plaintiff says that when he was done swimming, he walked around the pool and patio area looking for a towel. He says he had no idea \O®\IO\UIADJN)—l anyone else was in the backyard with him, though he concedes he heard voices in the yard. By his own admission, he was "not paying attention" to what he was doing. Plaintiff claims he was 30 feet from Ryan in an area just in front of and to the left of the pool (the homerun area), if one was in the batter's box. (See Exhibit "A"). The bat hit Plaintiff in the face and this lawsuit followed. haC: Ryan tells a different story. The homerun derby resumed after dinner and was played for hihi awhile as before. As the formality of the game ended — each batter had two turns up — all the INC. be hi players remained in place and the game continued informally. They were stillpitching, hitting and WOOD, be ha fielding but they had stopped scoring. As Ryan was hitting, Plaintiff was fielding and all Plaintiffs & 4; ha ATTORNEYSATLAW were bantering with Ryan about who was better the Giants or the Dodgers. Ryan emulated the hi LII Giants and intentionally missed. He then emulated Dodgers star Yasiel Puig, swung hard, and ROBINSON Ch hi tried to hit the next pitch. The bat slipped from his hand and struck Plaintiff in the face. hi ~J III. LEGAL ARGUMENT 00 hi The Court will assist the parties in trial of the case by taking into account Mr. Beard's primary defenses, hi ‘<> primary and secondary assumption of the risk. The law would appear to require re CDthat the Court assess whether Mr. Beard had a duty, based on the proffered and received evidence. be hi The Court can decide duty. Itmay also be that the Court would obtain a factual determination by be tothe jury regarding the parties‘ activity and then rule as to whether that. activity constitutes the type h) 00in which the defendant owes no duty. Plaintiffs appear to object to the use of CACI 408 regarding h) 4; assumption of the risk, but this is the only instruction which applies to the facts and supports h) Lndefendant's legal theories. be Ch / / / ha \J / / / ha 00 / / / 1041252 TRIAL BRIEF OF DEFENDANT RYAN BEARD A. Primary Assumption of the Risk Bars Plaintiffs’ Claims Against Defendant Ryan Beard 1. Assumption of the Risk Relieves a Sports Participant of His Duty to Avoid Negligent Injury to Others \wQUl-RMNb—i At the time of Plaintiffs injuries, Mr. Beard was a participant in a recreational baseball activity and as such owed Plaintiffs no duty. All persons have the duty to use due care to avoid injury to others. Cal. Civ. Code §1714. But where "the injury occurs in a sports setting the court must decide whether the nature ’of the sport and the relationship of the defendant and the plaintiff to the sport . .. support the legal conclusion of duty." Mastro v.Petrick, 93 Cal. App. 4th 83, 88 (2001) (emphasis added). h‘c: Participants should not be subjected to negligence lawsuits because "participation in hiha amateur athletics is a socially desirable activity that improves the mental and physical well—being INC. ha hi of its participants. The freedom to enjoy such activity is preserved through application of the W001), 00 hi doctrine of primary assumption of the risk. " Stimson v. Carlson, 11 Cal. App. 4th 1201, 1206 & it hi ATTORNEYSATLAW (1992). "The overriding consideration in the application of primary assumption of risk is to avoid Ln hi imposing a duty which might chill vigorous participation in the implicated activity and thereby ROBINSON Ch hi alter itsfundamental nature." Ferrari v. Grand Canyon Dories, 32 Cal. App. 4th 248, 253 (1995) \4 ha 2. The Court Engages in a Two_Step Analysis: First to the INtature of the Activity and then To Plaintiff's Relationship to 00 ha H: hi Mr. Beard will prevail because the central tenet of primary assumption of the risk is that b) c: "those involved in a sporting activity do not have a duty to reduce the risk of harm that isinherent b3 -hd in the sport itself." Shin v. Ahn, 42 Cal. 4th 482, 486 (2007). The Court's "inquiry must first focus b3 b3on the objective nature of the subject sport activity, . ..,and [then to the] parties' general b0 00relationship to that activity." Distefano v.Forester, 85 Cal. App. 4th 1249, 1262 (2001). The be 3;nature of the sport activity here, and the parties' relationship to that activity shows that Mr. Beard ha Lndid not owe Plaintiffs a duty. ha Ch (a) Beard's Participation in Home Run Derby is a Protected Activity b) ~J Plaintiffs who sue persons playing baseball do not prevail because they assume the risks to 00 inherent in that activity, such as accidently letting go of a bat. The "defendant's liability must be 1041252 TRIAL BRIEF OF DEFENDANT RYAN BEARD based on the nature of the sport itself rather than the particular plaintiffs subjective knowledge and expectations." Record v. Reason, 73 Cal. App. 4th 472, 482 (1999) (citations and internal quotes omitted). The nature of the sport is such that it isblack letter law in California that "a baseball player does not have a duty to avoid throwing a bat carelessly." Bushnell v. Japanese-Am. Religious \DWQQUI-RUJNH & Cultural Ctr., 43 Cal. App. 4th 525, 530 (1996). While "a batter isnot supposed to carelessly throw the bat [],the primary assumption of risk doctrine recognizes that vigorous bat deployment is an integral part of the sport." Shin, 42 Cal. 4th at 489. Mr. Beard was not playing organized baseball, but homerun derby is stillprotected because California applies the doctrine to recreational and practice activities. The seminal assumption of hiC: risk case, Knight v. Jewett, involved recreational touch football. 3 Cal. 4th 296, 313 (1992). The hi hi doctrine applies to any "activity [which] is done for enjoyment or thrill, requires physical exertion INC. hibe as well as elements of skill, and involves a challenge containing a potential risk of injury." WOOD, hibe Record, 73 Cal. App. 4th at 482. "Participation in recreational team sports is a socially desirable & hiis ATTORNEYSATLAW activity offering benefits to the participants and society as a whole." Krol v.Sampson, 6 Cal. App. pd LA 4th 310, 324 (1991) (plaintiff softball player barred from recovery for injuries sustained when ROBINSON pa Ch playing softball). There can be no question that Mr. Beard's participation in home run derby, pd ~J whether or not the score was being kept is an activity was done for "enj oyment, .. requires ha00 physical exertion as well as elements of skill, and involves a potential risk of injury." haND (b) Plaintiff's Relationship to Defendant's Baseball Activity Means Assumption of the Risk Applies h) :3 5)hd Whether Plaintiffs were actually playing the game at the time of the accident — as they ha be apparently deny -—does not matter. Although assumption of the risk clearly bars participants from ha be suing other participants, the doctrine also bars spectators, coaches, and persons in the same b0 45 venue.2 "[T]here is nothing in Knight that leads to the conclusion that assumption of risk will b0 Ln only apply to coparticipants." Mastro, 93 Cal. App. 4th at 89. After establishing the activity in b3 Ch 2 If Plaintiff admitted to playing the backyard baseball game, as Beard says he was, as a matter of b0 \J law he assumed the risk of injury he sustained and the case would have been over at the pleading stage. "[T]he general rule recognized by the vast majority of jurisdictions is that a voluntary participant assumes b3 00 all risks incident to the contest which are obvious." Krol v. Sampson, 6 Cal. App. 4th 310, 318 (1991). 1041252 5 TRIAL BRIEF OF DEFENDANT RYAN BEARD which the defendant isparticipating, the Court's analysis focuses on "on the parties' general relationship to the activity.” Mastro, 93 Cal. App. 4th at 89, quoting Knight, at 313. Thus, "one who ispursuing his sport in an appropriate venue owes no duty of care to those who choose to occupy the same venue to engage in their (possibly different) activity simultaneously." Mastro, 93 Cal. App. \OOOQQUI-BUJNH 4th at 90. The doctrine applies in such situations because a sport participant "should not be restrained or inhibited from vigorously engaging in his sport []because of the presence of [others] was permitted" in the same venue. Mastro ,93 Cal. App. 4th at 91. Even if Plaintiffs implausible story is accepted, Ryan owed no duty because he was pursuing his sport in a permitted venue and Plaintiff chose "to occupy the same venue to engage in their (possibly different) activity simultaneously." Mastro, 93 Cal. App. 4th at 90. This case isthe same as Mann v. Nutrilite, Inc. 136 Cal.App.2d 729 (1955) . In that case, a team entered the field during warm ups and was injured by a ball INC. chaperon for a girl's softball LAW WOOD, thrown by one of the team she was chaperoning. The plaintiffs claim that she was a non- AT & participant and ignorant of the proximity in which balls would be thrown was rejected because she knew balls were thrown in warm up. The ATTORNEYS general rule regarding spectators assuming the risk of ROBINSON injury "should be much more applicable where the injured person [as here] goes on the field of play and is,in effect, in the position of a participant. The [plaintiff] here assumed such a position with full knowledge NNNNNNNNNHHHHHHHHHD—l of the natural and inherent risks involved." Mann, 136 Cal. App. 2d. at 734. B. Secondary Assumption of the Risk Means Plaintiff‘lama& Claims Fail ' OO\I6\UI-BU)NH¢\OOO\IG\UIJAMNHC Even if the Court were to assign Ryan a duty in the context of playing home run derby while Plaintiff occupied the field of play, and the jury was to go a step further and say that Ryan breached it by accidently letting go of the bat while swinging it,Plaintiffs damages will be reduced by his comparative fault. Whereas primary assumption of the risk focuses on duty, "the secondary assumption of risk doctrine relates to the allocation of damages, not to the question of duty." Shin, 42 Cal. 4th at 498. Thus, "the secondary assumption of risk principle []was merged into [the] comparative negligence approach." Skin, 42 Cal. 4th at 498. Plaintiff knew enough about baseball to know that a bat might have slipped out of any batter's hands that day. He knew 1041252 6 TRIAL BRIEF OF DEFENDANT RYAN BEARD he was in the field of play when he was hurt. As such he assumed the risk of damages that day. IV. EXPERTS Plaintiffs have a total of five experts from their initially disclosed nine (then ten) non- retained experts, and two (then three) retained experts. They withdrew two retained (an accident VOWQGUIADJNI-l reconstructionist and a past medical damages expert) leaving only Paul Lebby, Ph.D., neuropsycholo gist. They withdrew many non-retained so that all that remain in non-retained experts: 1. Brian Woo, DDS, MD, regarding possible jaw surgery and a desired rhinoplasty; 2. Aaron I. Noordmans, DDS, regarding past La Forte III repair; 3. Bruce Havens, DDS, regarding orthodontics and needed braces; and 4. Karen Wood, LCSW regarding future therapy visits INC. Defendant Ryan Beard will likely call only two experts. Dan Girvan has a masters in LAW WOOD, AT mechanical engineering from Stanford. He will provide opinions regarding bat speed, participant & placement, and distances to Mr. Beard during the incident. These will inform the conclusion that, ATTORNEYS contrary to his sworn testimony, Plaintiff had to be aware that the homerun derby was stillbeing ROBINSON played. William Lynch, Ph.D. is a neuropsychologist who will testify that Plaintiff has no brain injury and that his current depression has multiple causes. V. WITNESSES NNNNNNNNNI—IHHHHHl—ll—KHH AND EVIDENCE Mr. Beard's witnesses will consist of the parties OOQQUIAMNHOVOOOQGNUIAUJNHG and Mrs. DeRosier regarding the accident. Regarding Plaintiff‘s damages, Mr. Beard will likely call as lay witnesses plaintiffs sisters, who have knowledge of Plaintiffs pre-accident depression. CONCLUSION ' v1. "The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities" because "imposing such a legal duty would work a basic alteration—or cause abandonment” of the activity. Nalwa v. Cedar Fair, LB, 55 Cal. 4th 1148, 1156 (2012). While playing the homerun derby, Ryan — and indeed co—participants Minor Plaintiffs — "need not worry about playing the 1041252 7 TRIAL BRIEF OF DEFENDANT RYAN BEARD game in such a way as to avoid ever accidentally throwing a bat." Allan v. Snow Summit, Inc., 51 Cal. App. 4th 1358, 1367 (1996). The Court's rulings and the jury's verdict should reflect the California policy and law regarding accidents involving sports. "When an accidental injury such as plaintiffs occurs, it is unfortunate that the victim and family must bear the loss; tum recreational \OWQQUl-BMNI—l but the alternative is to sports into grist for the mills of litigation." Krol, 6 Cal. App. 4th at 324. Ryan had no duty to avoid throwing the bat carelessly. Dated: December &, 2015 Respectfully submitted, ROBINSON & WOOD, INC. INC. By: LAW W001), ARTHUR JT/CASEY COLIN G. MCCARTHY AT & Attorneys for Defendant RYAN BEARD ATTORNEYS ROBINSON NNNNNNNNNHHHHHHF‘HHI—l ooucxmamNHexaooqoxu-AbaNr—c 1041252 TRIAL BRIEF OF DEFENDANT RYAN BEARD