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National Guard Family Outing – Comparative Negligence


In recent blogs we have seen how the U.S. government can be liable in a U.S. Army National Guard family outing. A thirteen-year-old boy was hit while walking along the third base line at a softball game involving older people. As the boy was walking towards home plate, along the foul line, the catcher hit him on a throw to third to nail a runner.

It certainly seems that there would be some comparative negligence on this thirteen-year-old. Indeed, the judge, and this was a bench trial, found 20% comparative negligence on the boy. The judge used the standard that I have referred to in the past, including in the last blog, that the child “is to be judged by the standard of behavior expected from a child of like age, intelligence, and experience.”

But 20% is not 100%. Subtracting 20 from 100 is 80, “all day long,” as my grammar school math teacher often said. Thus 80% negligence was found on the federal government for the acts of the supervising officer. That gentleman, according to the findings of fact of the judge, was negligent in not preventing the child from wandering onto the field of play and thus exposing himself to an errant throw from the catcher to third base.

The exact details of the play were uncertain but the judge as factfinder tried to recreate the play as best he could. Here is what he found: the supervisor, who was only a few feet away, saw an emergent situation, a dangerous situation; the supervisor yelled, “The play is to third”; and therefore the judge concluded, or inferred, from the evidence, that the supervisor may have been more interested in the game than in the safety of bystanders.

In establishing liability on the government, the United States, it was essential to prove that the supervisor had the responsibility of overseeing the game. This was essential because the judge reasoned that the supervisor was the senior soldier on the field and therefore had the authority and a duty to act when was a dangerous risk occurred. By allowing the young man to walk by him, the supervisor focused on the play rather than on the safety of the young man. The supervising officer acted negligently. He exposed the young man to an unreasonable risk, according to the judge, the factfinder in this jury waived case.

The 20% comparative negligence finding on the child did not preclude or stop recovery. Rather, it reduced the recovery by 20%. This is constructive for us to remember because often there is comparative negligence when an injury occurs. The fact that it was a youngster as opposed to a mature adult allowed for a lesser finding of comparative negligence than would otherwise be.

Even though much pre-trial discovery occurred and even though many witnesses testified, certain details of the accident were not entirely clear on the record presented to the judge. Nevertheless, he felt comfortable in summarizing the evidence in the way that I related in this blog. A record that is not 100% clear is not unusual. Fortunately (I say that because I am a lawyer who represents injured people) there was enough evidence for a finding of negligence against the government and a finding of limited comparative negligence.

In the next blog I will talk about the parents and their loss of consortium. This is a claim that can be made in Massachusetts since the early 1980s by a statute passed by the state legislature. The legislature acted because the highest court of Massachusetts, the Supreme Judicial Court, refused to recognize this right of the parents. I will also talk about how the judge went through and “priced,” if you will, the various damages. We can learn from that as well.

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