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A Personal Injury Trial under the Federal Tort Claims Act


This is the second blog in a series about a federal case under what is called the Federal Tort Claims Act. As you may recall from the last blog, a youngster, a thirteen-year-old boy, suffered a very significant injury while walking close to the field of play during a softball game. The game was a “pick up” game at a U.S. Army National Guard outing.

There are several reasons that I am fascinated by this case:

  • I am a huge baseball fan;
  • I’ve handled other baseball injury cases;
  • I have a deep interest in the law, in tort and negligence law specifically;
  • and the judge who decided this case is known to me. He was a Massachusetts Superior Court judge before becoming a federal judge. Moreover, I recently testified “before him” in the case I blogged about involving excess insurers suing an underlying insurer. The underlying facts of that lawsuit, where I testified, were also negligence issues.

Yes, I am very interested to see what this judge decided in this negligence case, that is the baseball case. (He has yet to decide the other case that I referred to, the one where I testified.)

You may recall the facts of the baseball case from the last blog: a young man was walking towards home plate on the third base line as a play was unfolding. The catcher was intending to make a throw to third and, regrettably, hit this boy in the head. The boy suffered significant head and brain injuries. As the judge found in his facts, the young man was moving toward the third base line but he was also walking past the supervisor of this event. Although not fully clear from the testimony, it seemed that the boy was bending down to pick up a bat.

Liability was found against the United States government and the United States National Guard. However, that finding was really made because of the negligence of the supervisor. The supervisor did not have to pay any judgment but the United States surely has or will have to pay as a result of this decision.

Now there were four allegations of negligence, only one of which caused the
judge to find liability against the United States. The judge discounted the others. He found that the supervisor and other soldiers were negligent in allowing the child onto the field during active play.

Keep in mind that this wasn’t a very young child; he was a thirteen-year-old. The judge, a federal judge and they are not typically involved in personal injury cases, reviewed the law of personal injury and torts. He noted that it requires each of the following elements to be proven by a preponderance of the evidence:

  • a finding of a duty of care;
  • a breach of that duty;
  • a causal relationship between the breach of duty and the resulting injury.

This game was actually a spontaneous softball game with a more formal game having taken place that morning. Because the game which led to the injury was a spontaneous game, there was no allegation in the judge’s mind that would work against some of the higher ups in the military. The judge found that liability could only be against one particular person, actually a Staff Sergeant who was there supervising the game.

Now personal injury cases that come about from an athletic event in Massachusetts (whether tried in state court or federal court) have to satisfy a recklessness standard. Interestingly, the recklessness standard was not met as against the catcher. There was a claim against the catcher for his gross negligence, but the judge said “no.”

Even though we were dealing with an athletic event and its law of gross negligence or recklessness, the lesser standard, that is a negligence standard, could be asserted against the person who was in charge of the game. Against that person, the judge found that the lesser standard of negligence was met. Again, this individual was not the catcher who was throwing to third, but rather was the sergeant who was serving in a supervisory way. In contrast to the catcher, the supervising sergeant’s potential liability is based not on his participation as a player (where the recklessness standard would have to be met), but rather on his overall responsibility as the senior officer on site at the family day event.

What is the expectation of the supervisor? Here, we hear the typical and traditional negligence arguments that come up in a personal injury case: the defendant, whomever that may be, must avoid exposing attendees to foreseeable and unreasonable risks of harm. In other words, the theory of liability asserted against that senior officer in charge is the familiar one we hear in premises liability cases. It is one that I have spoken about: A person in control of a premises has a duty to avoid exposing persons lawfully on those premises to an unreasonable risk of harm. (Interestingly, in quite a coincidence, I testified to that very standard in that very Courtroom in the case involving insurers who are suing over a lawsuit that I won.)

The judge found that this senior officer in charge, because of his supervisory responsibilities, had a duty to protect the young man as well as anyone present at the outing from foreseeable risks of harm. Thus, when the boy wandered close to the field and was hit by the thrown ball, the judge looked at the conduct of the supervising officer.

The judge felt felt that the supervising officer was more interested in the game than in the safety of bystanders and safety was his responsibility. The judge made note of the fact that the supervising officer was yelling to the catcher that “the play is to third, the play is to third,” instead of his being concerned with the young man who was walking toward the catcher and ultimately was hit. As a result, there was a finding of negligence for the family who was suing.

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