While sports competitors owe a duty of care to other players, the fact of an accident or injury occurring during gameplay does not necessarily establish that the Defendant competitor was negligent. There must be a failure to take appropriate care, as a reasonable competitor would in the circumstances, to justify a finding of negligence.
Sack v Lange, 2019 CarswellAlta 475 (Alta. Q.B.),; aff’d 2020 ABCA 95
Facts + Issues
This decision relates to an injury arising from a slo-pitch baseball game. Plaintiff Stacie Sack was injured while playing back catcher during a slo-pitch game on June 12, 2010. Defendant Gordon Lange swung at a pitch and released his bat behind him. The bat struck Sack in the face, resulting in a serious injury.
Both parties were experienced slo-pitch players and were on “competing teams within the highest amateur level of competitive mixed Slo-Pitch in Grande Prairie.” This league was mixed gender, friendly and intended to be in a fun and social setting. While the wearing of protective gear was strongly encouraged by the National Slo-Pitch Association (the “NSA”) (the association which governed this particular league and game), Sack was not wearing protective gear at the time of the incident. No other players on Sack’s team or within the league itself wore protective equipment during games.
Lange testified that he used his regular bat and wore his batting gloves on both hands, as he always did, at the time of the incident. He indicated that he knew roughly where the umpire and catcher were behind him. He then said he swung at the pitch in the same manner that he always did. However, his left hand came “off the bat as he swung around, leaving his right hand to stop the momentum of the bat, which it did not do.”
Sack commenced a negligence claim against Lange. The parties had reached an agreement on quantum of damages before the trial, and Lange conceded that he owed a duty of care to Sack.
The issues the Court considered were:
- What is the standard of care owed in the circumstances?
- Was that standard of care met?
- If the standard of care was not met, was the Plaintiff negligent in a way that contributed to her injuries?
Sack appealed the trial decision on the bases that:
- The trial judge failed to consider whether the circumstances were such as to give rise to an inference of prima facie negligence which had to be rebutted by Lange;
- The trial judge erred in stating that the test for inherent risk was what was within the imagination rather than what might be reasonably expected;
- The trial judge erred in finding that Lange did nothing different on this occasion; and
- The decision is contrary to public policy.
TRIAL HELD: For the Defendant, action dismissed.
The Trial Judge held that the applicable standard of care test for sporting events is, “What would a reasonable competitor, in the place of Lange, do or not do?”
- (a) The Trial Judge noted that the Plaintiff was only required to show “that the Defendant failed to take the level of care that a reasonably prudent person, here a competitor, would take in the circumstances” and there was no requirement to prove that the Defendant intended to injure her or acted recklessly.
- The Trial Judge relied on the following test for determining the standard of care in this matter:
 . . . I adopt the statement now attributed to the Unruh case, but which was actually from the Plaintiff’s submissions in Herok: (as read)
The element of risk, to the extent it is normally accepted as part and parcel of the game by reasonable competitors acting as reasonable men of the sporting world, is one of the circumstances that may be considered under the “standard of care” issue. The standard of care test is – what would a reasonable competitor, in his place, do or not do. The words “in his place” imply the need to consider the speed, the amount of body contact and the stresses in the sport, as well as the risks the players might reasonably be expected to take during the game, acting within the spirit of the game and according to the standards of fair play.
- The Trial Judge rejected the idea that there needs to be proof of intention or recklessness to establish liability for injuries during sporting events.
- The Trial Judge noted that “[t]he degree of inherent risk to any given sport or activity modifies the applicable standard of care.” This is intended to “avoid unfairly raising the standard of care for competitors.” (at para 12)
- The Trial Judge discussed the degree of inherent risk present in slo-pitch games, and this league in particular:
 . . . Both parties . . . had seen, to varying degrees, the kinds of injuries that could be suffered by participants which included serious injuries from errant balls and errant bats, among other things. Although Ms. Costello had never had a bat thrown in her direction at head level before she had previously had a batter whose improperly thrown bat his her foot.
 For experienced participants of this sport, it simply cannot be the case that the possibility of a bat being thrown or released is beyond imagination if not observation. . . Nor can we use the fact that the Plaintiff was injured, even badly injured, in order to prove a breach of duty of care.
- The Court rejected the idea that the standard of care in a slo-pitch game is to avoid all injury and, in this case, it would not be appropriate to find the Defendant negligent since the Plaintiff was injured.
Lange was held to have met the standard of care applicable in the circumstances.
- The Trial Judge noted that “[w]hile unintentional acts can be negligent, there must still be some failure to take appropriate care in order to find liability.” (at para 22)
- In discussing what a reasonable competitor would do in Lange’s shoes, the Trial Judge noted the following:
 . . . [A] competitor’s assessment of risk and thus duty to guard against risk must consider the severity of risks, the likelihood of risk, and the imminence of risk. While the seriousness of the harm posed by losing control of the bat was high, the likelihood, given the Defendant’s history and experience, was very low, as was the immediacy of any danger.
 What would a reasonable competitor do? He would learn how to swing a bat safely and practice that form. He would learn how to safely dispose of his bat after hitting a ball. He would take some notice of where the people were positioned around him when he was batting or otherwise playing the game. He would use proper and well-maintained equipment. He would ensure that his bat had a good grip to avoid slippage. He would wear a batting glove to assist with gripping the bat and reducing the chances of accidentally losing his grip on the bat.
 Lange did not fail to do any of these things. The fact of the accident itself does not mean that he was negligent nor can I find anything in his conduct upon which a finding of negligence, on a balance of probabilities, can be made. Any reasonable competitor will know the rules including the safety rules and will practice and play in a way that observes the rules of safety. However, reasonable competitors will also attempt to swing hard and hit the ball as far as possible. Reasonable competitors may have a range of things running through their minds as they approach the plate, but there is no required checklist of thoughts that each player must have each time as long as he has taken reasonable precautions against the foreseeable risks of play.
- The Trial Judge found that Lange did not do or fail to do anything reasonably expected of a prudent person taking reasonable care not to injure his or her fellow competitors.” (at para 22)
- The Court noted that Lange did testify that had been taught to hang on to a bat and place it on the ground after hitting a pitch, and it was his standard practice to hang on to the bat with both hands when swinging.
- The Court also noted that Lange had never let go of a bat after hitting a pitch during his significant history of playing baseball and slo-pitch.
If the Defendant were found to have been negligent, the Trial Judge would have apportioned liability at 80% to the Defendant and 20% to the Plaintiff, per s 2(1) of the Contributory Negligence Act.
- The Court assessed liability per Heller v Martens, 2002 CarswellAlta 657 (Alta. C.A.):
 . . . I must assess the relative blameworthiness of the parties in apportioning liability. Blameworthiness in this context means only the degree of each party’s departure from the applicable standard of care. If the Defendant were liable for the Plaintiff’s injuries, contrary to my findings, did the Plaintiff fail to take care for her own safety in any reasonable way, specifically, by failing to wear any kind of protective gear?
- The Trial Judge found that the Plaintiff had a duty to protect herself from injury.
 . . . The Plaintiff has seen and knew of the risks of injuries including tipped and fouled balls as well as bats. Positioned, as she was, some 7 feet or so behind the plate, she had some duty, however minimal, to see to her own safety.
- The Court noted that the Plaintiff was aware the game was governed by the NSA rules but had not personally read them.
- However, the Court did limit Sack’s contributory negligence on the basis that it was not customary for players in this particular league to wear protective gear.
HELD ON APPEAL: For the Defendant; appeal dismissed
The Court of Appeal dismissed the appeal, noting that the Trial Judge made no extricable errors of law, correctly stated the test, and was reasonable in applying the test and making or declining inferences.
It can never be overemphasized that the mere fact that an accident or injury occurs does not establish negligence, even in sports cases.