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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
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DEPT. 403
Attorneys for Defendant RYAN BEARD
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF FRESNO
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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
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HEFLEBOWER, .
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Plaintiffs, Date: December 14, 2015
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ATTORNEYSATLAW
Time: 9:00 am.
vs. Dept.: 403
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ROBINSON RYAN BEARD; and DOES 1-20, inclusive,
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Defendants.
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AND RELATED CROSS-ACTION.
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Plaintiff John Heflebower ("Plaintiff") was injured when Defendant Ryan Beard ("Ryan").
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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
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says he was not participating but Mr. Beard says he was. Under any version, primary assumption
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of the risk bars Plaintiffs' claims because thrown bats are a risk inherent in baseball and as a
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participant Mr. Beard had no duty to Plaintiffs, who were all in the designated play area for the
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game. Knight v. Jewett, 3 Cal. 4th 296, 314-15 (1992); Rudnick v. Golden W. Broadcasters, 156
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Cal. App. 3d 793, 802 (1984). Moreover, under any fact version, secondary assumption of the risk
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places the risk on Plaintiff, because he was well aware of the risks and accepted them anyways.
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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.
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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.
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11. LAC—TS
On July 4, 2013
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WOOD,
Plaintiff Heflebower ( age 53 at the time of the accident) was an
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& experienced baseball fan, player and coach. He played the game through junior college, coached
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his kids from little league to high school, and had been to hundreds of professional and
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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
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(Tyler, age 16 at the time of the accident, and Joshua, age 13 at the time of the accident) were both
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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
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Plaintiffsdo not allege that Mr. Beard was reckless or increased the risks inherent in their baseball activity.
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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
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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.
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Ryan tells a different story. The homerun derby resumed after dinner and was played for
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awhile as before. As the formality of the game ended — each batter had two turns up — all the
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players remained in place and the game continued informally. They were stillpitching, hitting and
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fielding but they had stopped scoring. As Ryan was hitting, Plaintiff was fielding and all Plaintiffs
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ATTORNEYSATLAW were bantering with Ryan about who was better the Giants or the Dodgers. Ryan emulated the
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Giants and intentionally missed. He then emulated Dodgers star Yasiel Puig, swung hard, and
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tried to hit the next pitch. The bat slipped from his hand and struck Plaintiff in the face.
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III. LEGAL ARGUMENT
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The Court will assist the parties in trial of the case by taking into account Mr. Beard's
primary defenses,
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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.
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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
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assumption of the risk, but this is the only instruction which applies to the facts and supports
h) Lndefendant's legal theories.
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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
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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
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amateur athletics is a socially desirable activity that improves the mental and physical well—being
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of its participants. The freedom to enjoy such activity is preserved through application of the
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doctrine of primary assumption of the risk. "
Stimson v. Carlson, 11 Cal. App. 4th 1201, 1206
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(1992). "The overriding consideration in the application of primary assumption of risk is to avoid
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imposing a duty which might chill vigorous participation in the implicated activity and thereby
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alter itsfundamental nature." Ferrari v. Grand Canyon Dories, 32 Cal. App. 4th 248, 253 (1995)
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2. The Court Engages in a Two_Step Analysis: First to the
INtature of the Activity and then To Plaintiff's Relationship to
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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
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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
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(a) Beard's Participation in Home Run Derby is a
Protected Activity
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Plaintiffs who sue persons playing baseball do not prevail because they assume the risks
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inherent in that activity, such as accidently letting go of a bat. The "defendant's liability must be
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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
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& 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
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doctrine applies to any "activity [which] is done for enjoyment or thrill, requires physical exertion
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hibe as well as elements of skill, and involves a challenge containing a potential risk of injury."
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Record, 73 Cal. App. 4th at 482. "Participation in recreational team sports is a socially desirable
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ATTORNEYSATLAW activity offering benefits to the participants and society as a whole." Krol v.Sampson, 6 Cal. App.
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LA 4th 310, 324 (1991) (plaintiff softball player barred from recovery for injuries sustained when
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Ch playing softball). There can be no question that Mr. Beard's participation in home run derby,
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(b) Plaintiff's Relationship to Defendant's Baseball
Activity Means Assumption of the Risk Applies
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Whether Plaintiffs were actually playing the game at the time of the accident — as they
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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
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only apply to coparticipants." Mastro, 93 Cal. App. 4th at 89. After establishing the activity in
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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).
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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.
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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
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chaperon for a girl's softball
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WOOD, thrown by one of the team she was chaperoning. The plaintiffs claim that she was a non-
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& participant and ignorant of the proximity in which balls would be thrown was rejected because she
knew balls were thrown in warm up. The
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general rule regarding spectators assuming the risk of
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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
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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
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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
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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
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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
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Defendant Ryan Beard will likely call only two experts. Dan Girvan has a masters in
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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,
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contrary to his sworn testimony, Plaintiff had to be aware that the homerun derby was stillbeing
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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
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AND EVIDENCE
Mr. Beard's witnesses will consist of the parties
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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
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"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
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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
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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:
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W001),
ARTHUR JT/CASEY
COLIN G. MCCARTHY
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& Attorneys for Defendant RYAN BEARD
ATTORNEYS
ROBINSON
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