Cueto-LaRue: Legal implications…

It’s important to note that I am not an attorney and none of what follows should be construed as legal advice

All good lawsuits begin with a story.

A little over a month ago, the Cardinals and Reds squared off in a heated NL Central series (at the time, the Cardinals were “still in it”). Tensions boiled over in game two when Yadier Molina and Brandon Phillips got into a heated first-inning exchange that erupted into a full out brawl.

While managers Tony LaRussa and Dusty Baker shouted it out on the field, various Cardinals and Reds argued with their fists, and in the case of Johnny Cueto, his feet. Scott Rolen went after former teammate Chris Carpenter, while “Cueto . . . ended up against the (backstop) screen, furiously kicking players away.”

Some of Cueto’s kicks hit catcher Jason LaRue in the face, causing a severe concussion. As a result, LaRue is retiring, though not because he particularly wants to. Said LaRue:

“I was going to retire on my own terms …. Does it suck that my career is over because Johnny Cueto started kicking me in the head? Yes, it sucks.”

For this article, I want to focus on something collaterally mentioned by Joe Strauss of the St. Louis Post-Dispatch:

Friends say that LaRue contemplated taking legal action against Cueto for the on-field assault that led to his condition but has since discarded the idea. La Rue says that he has no interest in pursuing the matter. However, he remains peeved over the actions of a player Carpenter described as ‘some idiot.

The idea raises an interesting question: Can a baseball player sue for the torts he sustains in a baseball game?

A tort is a wrongful act. It can be intentional or accidental. Though torts give rise to civil liability (that is to say that a person or business, rather than just the state, can sue the offender), some torts can also give rise to criminal liability (you know, Law & Order stuff). Intentional torts that give rise to civil liability include assault ((an act which is made with the intent of causing a harmful or offensive contact (or an imminent apprehension thereof) which places an another in an imminent apprehension (a cognizant, reasonable fear of harm which is ready to occur without significant delay)) and battery (an act which the actor intends to be harmful or offensive (or put another in an imminent apprehension thereof) which directly or indirectly results in a harmful or offensive contact to another). For our purposes, these simplified definitions will do. It is worth noting, however, that though an act often is both an assault and a battery, such is not always the case (e.g., someone hits you from behind—battery only).

Generally, one who commits a tort is liable to those he harms. Of course, there are a plethora of exceptions and defense to the general rule, one of which is called “implied assumption of the risk” (technically the issue here, as this is an intentional tort, is “consent,” but the rubric for analysis here would be the same as assumption of the risk, which applied to negligence claims). That defense can exist when a plaintiff, knowing of the risks present and appreciating their quality, voluntarily chooses to encounter them. The theory is that when a person decides to undertake an activity (especially one which is not necessary) that carries known risks of harm, those organizing and operating within the scope of that activity should not be held liable.

A few years ago, the California Supreme Court addressed the issue of assumption of the risk as it applies to baseball in Avila v. Citrus Community College District. A state court decision is generally non-binding on a court in any other state or in a federal court. However, the court’s decision is well reasoned and would provide persuasive authority in another jurisdiction.

Avila involved a student who was playing college baseball for the Rio Hondo Roadrunners. In a preseason road game against the Citrus Community College Owls, a Roadrunners pitcher hit an Owls batter with a pitch. In the next inning, when Avila came to bat, the Owls pitcher hit Avila in the head with a pitch, cracking his batting helmet. The first base coach told Avila to stay in the game, but Avila was removed later in the inning due to continuous pain, numbness and dizziness.

As a result, Avila suffered what the court termed “unspecified serious personal injuries.” Claiming that the pitch thrown at him was intentional and in retaliation (a “beanball”), Avila sued both schools, his manager, the helmet manufacturer, and various other entities and organizations for his injuries. Only his claims against the Citrus Community College District reached the California Supreme Court.

The court held:

Being hit by a pitch is an inherent risk of baseball. . . . The dangers of being hit by a pitch, often thrown at speeds approaching 100 miles per hour, are apparent and well known: being hit can result in serious injury or, on rare tragic occasions, death.

Being intentionally hit is likewise an inherent risk of the sport, so accepted by custom that a pitch intentionally thrown at a batter has its own terminology: “brushback,” “beanball,” “chin music.” In turn, those pitchers notorious for throwing at hitters are “headhunters.” 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. . . . Some of the most respected baseball managers and pitchers have openly discussed the fundamental place throwing at batters has in their sport. In George Will’s study of the game, Men at Work, one-time Oakland Athletics and current St. Louis Cardinals manager Tony LaRussa details the strategic importance of ordering selective intentional throwing at opposing batters, principally to retaliate for one’s own players being hit. . . . As Los Angeles Dodgers Hall of Fame pitcher Don Drysdale and New York Giants All-Star pitcher Sal “The Barber” Maglie have explained, intentionally throwing at batters can also be an integral part of pitching tactics, a tool to help get batters out by upsetting their frame of mind. Drysdale and Maglie are not alone; past and future Hall of Famers, from Early Wynn and Bob Gibson to Pedro Martinez and Roger Clemens have relied on the actual or threatened willingness to throw at batters to aid their pitching. (See, e.g., Kahn, The Head Game, at pp. 223–224; Yankees Aced by Red Sox, L.A. Times (May 31, 2001) p. D7 (relating Martinez’s assertion that he would even throw at Babe Ruth)).

While these examples relate principally to professional baseball, “[t]here is nothing legally significant … about the level of play” in this case. . . . The laws of physics that make a thrown baseball dangerous and the strategic benefits that arise from disrupting a batter’s timing are only minimally dependent on the skill level of the participants, and we see no reason to distinguish between collegiate and professional baseball in applying primary assumption of the risk.

It is true that intentionally throwing at a batter is forbidden by the rules of baseball. (See, e.g., Off. Rules of Major League Baseball, rule 8.02(d); Nat. Collegiate Athletic Assn., 2006 NCAA Baseball Rules (Dec. 2005) rule 5, § 16(d), p. 62.) But “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.” . . . It is one thing for an umpire to punish a pitcher who hits a batter by ejecting him from the game, or for a league to suspend the pitcher; it is quite another for tort law to chill any pitcher from throwing inside, i.e., close to the batter’s body—a permissible and essential part of the sport—for fear of a suit over an errant pitch. For better or worse, being intentionally thrown at is a fundamental part and inherent risk of the sport of baseball. It is not the function of tort law to police such conduct.

As the Avila decision makes clear, baseball players cannot sue the league or umpires or other players for certain acts, even intentionally hitting a player, that occur on the field of play. If Carpenter, for example, intentionally hits Rolen in the next Cardinals-Reds match-up in retaliation for the events of Aug. 10, Rolen would not be able to successfully sue Carpenter for assault/battery.

However, assumption of the risk is a function of foreseeability. The law calls this the “scope of risk.” Implied assumption assumes that the injured party knows something of the risk. That level of knowledge is set by expectations, disclosure, foreseeability and extent. Assumption of the risk, therefore, is a limited concept. Remote risks and degrees of harms that exceed what’s reasonable or expected are generally not “assumed” by those undertaking a given activity and can give rise to liability.

For example, if I enroll in an ATV training course and the ATV I’m given explodes, or the course features quicksand, the operators of that course may be liable for my injuries unless, more or less, they disclosed to me and made me aware of the the possibility of exploding engines and quicksand hazards.

To this end, are baseball brawls an “inherent risk” assumed by the players? On one hand, they happen quite a bit and, given the high level of adrenaline pumping in any competitive sporting match, are arguably foreseeable. However, on the hand, Footnote 11 to the Avila decision seems to indicate otherwise:

The conclusion that being intentionally hit by a pitch is an inherent risk of baseball extends only to situations such as that alleged here, where the hit batter is at the plate. Allegations that a pitcher intentionally hit a batter who was still in the on deck circle, or elsewhere, would present an entirely different scenario. . . .

Though it may be foreseeable that benches will clear over the course of a baseball season (and maybe even punches thrown), it is unlikely that a court will rule that assault and battery is an inherent risk of the sport which is assumed. While the court recognized that hit batsmen are a consequence and strategy of the sport, assault and battery serve no such function. Rather, they only give the sport (and often players) a black eye. Such conduct seems to cross the line of internal rules policing and into the realm of civil liability. So there might be liability from a brawl such as the one on Aug. 10 if a player brought legal action. The question of liability would likely come down to an interpretation of intent.

It is important to note that intent and motive are separate and independent concepts. One’s motives may be pure but they may still intend to do an act (and thus be held liable in the eye of the law).

Readers may ask “What if Johnny Cueto did not intend to hurt Jason LaRue?” In the eye of the law, intent is not limited to the intended. For example, If A intends to harm B or persons in general and A in fact harms C with his actions, A is liable to C under the doctrine of transferred intent. Thus, if Cueto intended (irrespective of motive) to kick about generally with players on the ground or intended to kick a specific player, he might be held liable for the injuries he caused.

Of course, if LaRue were to sue, Cueto might claim a lack of intent or perhaps self-defense. Those are questions for the jury to decide.


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Jeffrey Gross is an attorney who periodically moonlights as a (fantasy) baseball analyst. He also responsibly enjoys tasty adult beverages. You can read about those adventures at his blog and/or follow him on Twitter @saBEERmetrics.
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Train (OR)
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Train (OR)

If there was clearly liability, then players would have been sued for their actions in baseball brawls hundreds of times over the years. No doubt this issue has been studied thoroughly, and yet no such suit has been brought forth. The only conclusion, imo, is that there is no case.

Robert M. Palumbi
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Robert M. Palumbi

You are confusing the issue of liability and damages. Yes, there were baseball brawls in the past, and there have been undisclosed settlements made without suit being brought.

If Cueto did exactly what he did to LaRue, and LaRue was able to play the next day, there would still be clear liability. But where are the damages? In this case, there is objective evidence of sustained damages, granted LaRue retires.

Jeffrey Gross
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Jeffrey Gross
@Robert: Well, if I am not mistaken, consent is a separate defense to Battery. Not even a mutual fight implies consent, so I would not imagine consent would be relevant if the issue was brought to trial. I agree with you though that liability would likely attach, though I doubt it would be so clear… Something I wrote in my original draft which did not make the final cut was a question of whether the jurisdiction LaRue were to sue in would have a single or dual intent requirement. Cueto might have a viable defense in a dual intent jurisdiction… Read more »
Mike Clark
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Mike Clark

Jim Brewer sued Billy Martin over a broken jaw in a fight in 1960 – Brewer won $10,000 from Martin in the judgement … this is from Wikipedia, but I do believe in this instance it is true

Zach
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Zach

I think a more analogous situation would be the incident with Kermit Washinton and Rudy Tomjanovich. I thought Tomjanovich won a judgment against the LA Lakers.  I may be mistaken.

Steve Treder
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Steve Treder

“Jim Brewer sued Billy Martin over a broken jaw in a fight in 1960 – Brewer won $10,000 from Martin in the judgement … this is from Wikipedia, but I do believe in this instance it is true”

That is true.

kds
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kds

In the excerpt from the Avila case the Cal. S.C. does not address the issue that he was hit (intentionally?) in the head, not say, in the butt.  I think there could be found to be a difference in consent.

Rick
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Rick
I think Cueto has a legitimate claim to self-defense.  It was not a malicious act, like it would be had he thrown a pitch at LaRue or pulled an Izzy Alcantara.  Cueto was pinned back against the wall/netting by a mass of 50+ guys and was himself in danger of being harmed.  He was kicking because he was on his back bent over the wall it was the only way he could prevent himself from being further trapped. The entire situation was quite unfortunate, but the idea of criminal prosecution here is silly.  Can a player really wade deep in… Read more »
Jeffrey Gross
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Jeffrey Gross
@KDS, The Cal Sup. Ct. opinion does both address intentional AND unintentional beanballs, but I believe you are looking at the holding/reasoning to narrowly if I am construing your comment correctly. @Rick, We’re talking about civil liability, not criminal prosecution. When you think about it, what is the difference between a rowdy bar brawl and a rowdy baseball brawl? Liability attaches based on action intent, NOT necessarily motive. For example, if I go to smack you to kill a fly on you in a single intent jurisdiction, I may be liable to your for battery. Obviously, in this scenario, damages… Read more »
Jeffrey Gross
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Jeffrey Gross

Also, as a point of clarification, when I say:

“A state court decision is generally non-binding on a court in any other state or in a federal court. However, the court’s decision is well reasoned and would provide persuasive authority in another jurisdiction.”

I am obviously oversimplifying conflicts of laws.

Further, with respect to my focus on Avila, I realize there are other analogous cases directly involving sports brawls, but I have not read those cases and felt Avila and the rest gave me enough context to spark the discussion. I appreciate everyone adding to it with additional cases with/without liability.

Jeffrey Gross
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Jeffrey Gross

Actually I misspoke in a previous comment. Robert I believe you are correct in regard to consent because battery is an intentional tort and hence the above should likely be construed as a consent issue. My bad

ksw
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ksw
interesting piece. you’re not entirely wrong, but you are completely wrong. a ‘tort’ is a wrongful, or harmful act; derivation, from old norman, & likely some flavour of norse. in american law, though, a tort is found to exist only after a court has found it to exist. until a jury, or heaven forbid, a judge, rules, it is an alleged tort. an act causing injury, discomfort, extreme blushing, is only an alleged tort; only, after it has been entered as a proved verdict, is it a tort. tort is the original action (hitting; striking; making fun of someone’s mother),… Read more »
Matthew H
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Matthew H

Nah, I don’t buy it.

LaRue was on the bench when the fighting started.  If he’d stayed sitting on the bench, and the fight had somehow carried over to the bench, he’d have a suit.

When you go into a fight, push your way through the entire fight, and take a swing at somebody, it’s your own actions that put you under threat.  That’s why he didn’t sue.

HIzouse
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HIzouse
If you’re going to cite Avila, then concentrate on whether: (a) getting into a fight in a baseball game is reasonably foreseeable, and (b) getting kicked in the head while engaged in a fight is reasonably foreseeable. And as Matthew H. points out, you can dispense with (a) because LaRue was on the bench and rushed the field.  He knew he very possibly could be getting into a fight, even if most bench-clearing incidents don’t result any punches being thrown. So then the question would center around whether there is some type of MLB code of conduct or customs that… Read more »
Brian
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Brian
@Matthew H La Rue came out of the dugout (along with everyone else from BOTH teams) to break up the Molina/Phillips spat. This is entirely separate from the Carpenter/Rolen non-fight-that-was-viewed-as-a-fight that got everyone caught in the pile-up. It is entirely possible to distinguish the two confrontations. Also, it can be argued he was out there to peace-make/keep things under control. The benches were emptying, so you’re not going to be the only guy left standing in either dugout not helping or protecting your teammates. I’ve watched the video many times and I never saw LaRue make any violent gestures. It… Read more »
Jeffrey Gross
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Jeffrey Gross

@Hizouse,

I cited Avila mostly to show that some aspects of the game are to be considered inherent. In showing that fights are not inherent, you can draw on footnote 11 or analogous cases (ie, Hackbart v. Cincinnati Bengals, Inc.).

The scope of consent in playing baseball games is limited to the inherent aspects of the game, but I doubt that any court would sustain the argument that fighting is an element of baseball. Hockey, maybe, but its a completely collateral event in baseball

Jeffrey Gross
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Jeffrey Gross

Keep in mind also that criminal acts are not part of any sport. To the extent that the battery/assault may have criminal implications, that would further weigh in on civil liability and non-inherent risks of the sport.

Jeffrey Gross
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Jeffrey Gross
I 100% agree about your LaRue observations. I should probably have noted above that my analysis was based on those implications. To clarify and add some depth to the conversation, let me quote a piece of law, explaining implied consent (Richard v. Mangion): “When a person voluntarily participates in an altercation, he may not recover for the injuries which he incurs, unless force in excess of that necessary is used and its use is not reasonably anticipated. The use of unnecessary and unanticipated force vitiates the consent. for example, when a party voluntarily engages in a fist fight and his… Read more »
Jeffrey Gross
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Jeffrey Gross

More reading material on Civil Liability and sports brawls:

http://www.goodmans.ca/pdfsCIVIL_LIABILITY_IN_THE_ARENA_OF_PROFESSIONAL_SPORTS.pdf

Jeffrey Gross
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Jeffrey Gross

Also, who wants to break down the minimum contact analysis to figure out just where LaRue could sue…oh, international shoe, how I hated you…

Robert M. Palumbi
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Robert M. Palumbi

There is clearly liability if LaRue chooses to bring suit. Cueto’s actions exceeded the scope of consent.

Sexy Rexy
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Sexy Rexy
I’m sure my point has been said before but all this law talk is really boring and I don’t want to read it. I also want the disclaimer that I am not a lawyer and what I say should not be construed as legal advice. Although LaRue isn’t kickproof, do you think he’s bulletproof? I’m a mentor for 1L’s at my law school for Torts and we’re going over a case that’s more analogous than Avila, Overall v. Kadella 361 N.W.2d 352. In this case, two amateur hockey teams were playing each other when a fight broke out. The defendant… Read more »
kds
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kds

Jeffrey,

What I was getting at was that one might draw a line saying that there was implied consent to be hit by pitch in the ribs or butt, but not in the head.  The unwritten rules of baseball, supposedly well known and accepted by the players, could be seen to help define to what a player has consented.

Jeffrey Gross
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Jeffrey Gross

@SexyRexy,

Thanks for the addition, but I tried to acknowledge that I was using Assumption of the risk to explain consent in the main body of the article.

Jeffrey Gross
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Jeffrey Gross

I really only chose Avila to demonstrate the idea that some (not all) torts in a sport, specifically baseball, are within the inherent risks and thus assumed and consented to by participation.

Jeffrey Gross
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Jeffrey Gross

@KDS,

Ah, I see what you are getting at now. 100% agree. The level of damage inflicted alone may take it beyond consent, however, irrespectively…

Paul E.
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Paul E.

If it was, as he states, LaRue’s intention to retire at season’s end, where are the monetary damages if he was placed, with pay, on the disabled list? (Maybe in plaintif’s bogus tears at civil action?)

If he has witnessed or participated in these “brawls” before, was not LaRue truly aware of the inherit danger these near “riot” conditions bring?

Maybe the city of St. Louis should sue Cueto since tough guy Chris Carpenter has pitched like Brett Tomko since same incident?

jbg
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jbg

Here’s a related question: given that Cueto is in this country on a work visa—if he was found guilty of assault and battery, would he be at risk of losing his visa? 

IE, if Larue didn’t care about money, but did care about “an eye for an eye”, could he theoretically end cueto’s career with a lawsuit?

Jeffrey Gross
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Jeffrey Gross

@jbg,

interesting theory, but I think (not sure) that it would require a criminal prosecution for Cueto to lose his Visa… I doubt there would be criminal charges levied here…

Jeffrey Gross
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Jeffrey Gross

@Paul E:

Damages for future wages would be harder to prove, but that is for a jury to decide. Further, there could be damages for medical bills through subrogation (though I doubt the insurance company would so act here…)

Brandon
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Brandon

Watch the replay. Cueto is LISTED at 5’10”, which means he probably shorter. LaRue is 5’11” and Carpenter 6’6”. It looks me to like he panicked. Remember there’s also the fact that once you’ve had a few concussions, you start getting them more easily—which LaRue himself had noted. I don’t think any of those kicks packed enough power to give someone a concussion under ordinary circumstances.

DLeaberry
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DLeaberry
Dominican pitcher Juan Marichal did something similar to Johnny Roseboro of the Dodgers back in the Sixties, putting a bat to Roseboro’s head.  Maricha’s penalty was minimal.  Johnny Cueto is Dominican as well.  Perhaps punk fighting is acceptable in the Dominican Republic but it is not considered manly in America to spike opponents in the head in America just as it is not manly to put a baseball bat to an opponent’s head.  Cueto should have been banned for a year but no one can expect Commissioner Bud Selig to get anything right.  So that some justice can be done,… Read more »
coach wallet
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coach wallet
givejonadollar
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givejonadollar

Yes, clearly a case presents itself.  Depending on the objective evidence from the field, that would determine the verdict.

Jacob
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Jacob

LaRue shouldn’t take this to court, brawls are part of baseball, but Cueto is a BITCH for doing what he did. Are you kdding me, you are surrounded by your own teamates and he starts kicking at people like he was fighting for his life. Baseball should be ashamed for the punishment handed down, 1 start for ruining somebodies career. Congrats and hope you enjoy gettin booed in STL for the rest of your career.

Rick
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Rick
Regarding the severity of LaRue’s concussion, it should be noted that he claimed to have suffered from nearly 20 prior to this incident and yet did not pursue medical attention in those cases.  Given what we know about concussions, that they become increasingly likely and severe as they accumulate, it seems quite likely that LaRue need not to have suffered a severe blow to have a concussion of this magnitude.  Rather, it seems any type of head trauma could have caused a severe, career-ending concussion. I think this would have bearing on the earlier point regarding the scale of damages,… Read more »
Bill
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Bill

Out of curiosity, just how exactly does someone repeatedly kick another person in the head without the intent to injure?

Jon B.
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Jon B.
Is a brawl a known risk in baseball?  It shouldn’t be, but I think you’ve addressed it.  I do think you’ve overlooked one thing in your analysis, however: When a brawl happens, almost all of the players involved put themselves into it with the possible exception of the one or two players involved in the first punches.  Everybody else comes charging in. LaRue, the backup catcher, clearly did so.  He saw a brawl and specifically entered it, whether to join in or to intervene.  One would assume that would greatly impact any evaluation of forseeability and assumption of the risk. … Read more »
Rick
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Rick
@Bill If you watch the video, the kicking in the head happened in less than a second during a time in which the crowd was moving/swirling quite a bit.  Cueto was pushed back over the backstop and was kicking outwards with his feet to keep people away from him.  LaRue was pushed by the crowd in to Cueto.  At least from my watching of the video, Cueto was not targeting LaRue, or anybody else.  He was trying to keep from getting further pinned. @Jon B.  “Hopping up on the backstop.”  Do you think he purposefully bent himself over the backstop… Read more »
sk
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sk
This is kind of beside the point, but… “While managers Tony LaRussa and Dusty Baker shouted it out on the field, various Cardinals and Reds argued with their fists, and in the case of Johnny Cueto, his feet. Scott Rolen went after former teammate Chris Carpenter, while “Cueto . . . ended up against the (backstop) screen, furiously kicking players away.” “ 1.  I don’t recall seeing any punches thrown. 2.  Rolen rushed at (former teammate and friend) Carpenter to keep him from getting physical with Baker and Joey Votto.  Baker had walked away from his shouting match with LaRussa,… Read more »
Bob
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Bob
I think the reason for the lack of suit has more to do with losing stature with the player’s union and MLB in general.  LaRue may foresee a future in baseball in a coaching or front office capacity and could very strongly close that door if he were to bring a suit against another player like this.  A suit like this would bring open a whole new can of worms that neither MLB nor the Player’s Union wants to face.  Bringing forward this suit would only cause more doors to close for LaRue.  So I think that LaRue weighed his… Read more »
hoho
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hoho
I think the issue of intent can be argued by Cueto. He can just say ‘I was just kicking and flailing for my life.’ Regardless, he is an absolute embarrassment to the sport. Seriously, in how many baseball brawls is someone injured badly enough to force retirement? Very few, because much of the spectacle of an on-field brawl is simply posturing. Almost never do you hear of someone kicking someone else, let alone in the head. I definitely think LaRue should have a lawyer look at a possible suit, as he is losing a LOT of money in future work.… Read more »
martino
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martino

Legal actions aside, it astounds me that people actually try to defend Cueto. Yeah…he was really afraid and in serious danger of getting hurt, being surrounded by his teammates and all. LaRue has a case and should pursue it.

Jeffrey Gross
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Jeffrey Gross

Well, as they say in law, “you take your plaintiffs as you find them” >> thus, the fact that larue may be more fragile is somewhat immaterial to the defense…

Stephen Carlisle
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Stephen Carlisle

@DLeaberry

Dominicans don’t work the cane fields, much like in the U.S. where Mexicans do the labor no one else wants to do, Haitians work the cane fields

Like it or not baseball is no longer just United States sport, perhaps you would like to institute baseball’s color line once again?

Keep your xenophobic remarks to yourself in the future

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