May 24, 2018
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Iowa court allows lawsuit over softball injuries

The Associated Press

DES MOINES, Iowa (AP) — An Iowa law limiting lawsuits in contact sports doesn’t prevent a softball player from suing a batter for injuries suffered when a bat hit him in the head, the state Supreme Court ruled Friday.

The issue, the court said, is whether the batter’s action were intentional or reckless, and a jury must decide that.

In its opinion, the court referred to an article that said only two states, Vermont and Wyoming, completely bar lawsuits involving sports injuries.

Benjamin Feld was struck while playing first base during an informal batting practice for an intramural softball team in 2005. The batter, Luke Borkowski, hit a ball toward third base, and the bat went flying about 60 feet and hit Feld, injuring his right eye.

Both teens were about to enter their senior years at Keumper Catholic High School in Carroll. The game was not a school-sanctioned activity.

Feld and his parents sued Borkowski, seeking medical expenses and other damages.

They argued softball was not a contact sport and Borkowski didn’t qualify for protection under the state law. They also claimed Borkowski’s actions in releasing the bat constituted reckless conduct.

The Felds presented testimony from Ed Servais, the head baseball coach at Creighton University in Nebraska.

“He testified he had never seen a right-handed batter hit a ball left of third base and lose control of a bat by releasing it in the direction of first base,” according to court records.

Servais testified that the only way a right-handed batter could hit a first baseman with a bat in such a manner was if the batter “followed through and rotated around after striking the foul ball and deliberately threw the bat or let go of the bat in such a way that it was flung with considerable force through the air towards the first base position,” court records show.

Court records show Servais tried to unsuccessfully to duplicate the incident “which led him to the conclusion that Borkowski must have deliberately released the bat in a very abnormal, contorted act of recklessness.”

Borkowski maintained the bat “slipped from his sweaty hands on a hot June day,” and he didn’t intentionally throw the bat toward first base.

Other players also said it was a “freak accident,” according to court records.

Following a hearing, a district court found softball was a contact sport and liability could only be based on reckless or intentional conduct. The court concluded Borkowski’s actions were not outside the “normal course of playing softball.”

The Iowa Court of Appeals supported the district court’s decision, and the Felds’ appealed to the state Supreme Court. It said Servais’ testimony raised “a reasonable inference of recklessness” and was enough to justify sending the case to trial.

Feld’s attorney, Gregory Siemann, said he was pleased with the ruling.

“We’re happy the Feld boy will get his day in court,” he said. “Even if you call softball a contact sport, this conduct was not part of what people would normally believe the sport of softball would consist of.”

Borkowski’s attorney, Joel Greer, declined to comment, saying the case is still pending and will go to trial.

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