Depending on your point of view, one of the more celebrated or ignominious parts of the game of baseball is the headhunter, perhaps most recently embodied in the person of Vicente Padilla. There have been others, though. Armando Benitez was, in his day, notorious for throwing chin music — and sometimes more than that.
Throwing a pitch at a batter intentionally is a violation of Major League Baseball Rule 6.02(c)(9) (Rule 8.02(d)). The comment to that Rule states that “[t]o pitch at a batter’s head is unsportsmanlike and highly dangerous. It should be — and is — condemned by everybody. Umpires should act without hesitation in enforcement of this rule.” Despite that strong language, headhunting is not a violation of baseball’s unwritten rules. Therefore, it keeps happening.
Whatever virtues one might find in the practice, it’s nevertheless obvious that headhunting can be really dangerous. Former Cleveland shortstop Ray Chapman notably died after being struck in the head. Tony Conigliaro’s career — and life — was altered dramatically by a beaning in his age-22 season. Even throwing at a batter unintentionally can have devastating consequences, as we saw with Giancarlo Stanton after he was hit by Mike Fiers.
But the presence of headhunting in the game raises an interesting question — namely, what legal recourse, if any, does a batter have against a pitcher who throws at him intentionally?
Let’s start with some basic definitions to help us out here. Today we’ll be talking about “assault” and “battery,” two terms that get thrown around a lot in popular culture but actually have pretty specific legal meanings.
Most people think assault and battery are the same thing, but they’re actually very different. (For our purposes, there’s not much difference between the criminal and civil versions of the two charges — either for assault or battery). Battery is a (1) harmful bodily contact, (2) with intent to cause that bodily contact, and (3) without consent. Assault is apprehension of that intentional harmful bodily contact. In other words, actual physical contact isn’t necessary for an assault charge, whereas it is necessary to qualify as battery. Some people just call assault “attempted battery,” but that’s not exactly right; it’s a little more complicated than that. Assault and battery vary a bit from state to state, and are creatures of state law like this one.
How does this apply to baseball? Let’s consider a hypothetical scenario, one in which Cole Hamels is on the mound and Bryce Harper at bat. Hamels decides to intentionally hit Harper. Maybe Hamels didn’t like Harper’s hair that day. Maybe his cologne annoyed him. Maybe Harper pimped a home-run trot earlier. It doesn’t really matter; the point is, we have Hamels and Harper facing off, and Hamels has decided to throw a fastball at him. As the fastball approaches Harper, Hamels is assaulting him — Harper is now in apprehension of an imminent harmful bodily contact. And then, when the ball makes contact with Harper, the battery is complete. Harper sues Hamels, wins money, end of story.
Well, not so much. Previously, in the context of netting and baseball, we discussed the doctrine of “assumption of the risk.” As a quick refresher, “assumption of the risk” is a doctrine in Chapter 17A of the Restatement (Second) of Torts that says that when an individual engages in an act with knowledge of a danger, they assume the risk of that danger. As it turns out, assumption of the risk shows up in lots of different baseball contexts, and not just protective netting. In this case, assumption of the risk means that, when a player steps into the batter’s box, that player assumes the risk that a pitcher might throw at him, even intentionally.
The Supreme Court of California is responsible for that rule, the result of a case called Avila v. Citrus Community College District. The Avila Court said that “[b]eing intentionally hit is likewise an inherent risk of the sport, . . . Pitchers intentionally throw at batters to disrupt a batter’s timing or back him away from home plate, to retaliate after a teammate has been hit, or to punish a batter for having hit a home run.” In other words, the Avila court provided as its list of reasons why intentionally throwing at a batter should be legal all of the unwritten rules of beanballs. So, from a legal perspective, throwing at someone’s head is “condemned by everybody” except the California Supreme Court.
*It’s therefore not correct anymore, I suppose, to say they are unwritten rules. They’re written in Avila, which means that they may not be in the Rulebook, but they are enshrined in case law. Make of that what you will.
Now, it seems odd at first glance that a court would say that there is an inherent risk in being intentionally hit by a baseball when it’s against the rules. But the Avila court acknowledged that: “It is true that intentionally throwing at a batter is forbidden by the rules of baseball.” However, the Avila court was concerned that imposing legal liability for hitting batters intentionally would change the game of baseball, including in its decision the following passage:
“Even when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.”
Ultimately, the result is that the Avila court has insulated headhunters from legal liability. And the Avila decision is now the majority rule in the United States.
Now, interestingly, that same Supreme Court of California ruled the very next year in a case called Shin v. Ahn that a person can be held liable for recklessly hitting somebody with a golf ball, even if it’s not intentional. So the current state of the law is that getting hit with a golf ball unintentionally (albeit recklessly) can give rise to liability, but being hit intentionally by a baseball can’t. And that’s why Bryce Harper can’t sue Cole Hamels in our hypothetical.
One last thing: these rules don’t necessarily apply to brawls. More on that in a later post.
Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.