Court Rules on Case Involving Errant Punt and Fan at NFL Game
(Editor’s note: The following is reprinted from Professional Sports and the Law, a subscription-based magazine produced by Hackney Publications. To subscribe, visit here.)
By Courtney E. Dunn, of Segal McCambridge
When self-proclaimed “football fanatic” Paulina Callinan attended her very first football game on November 1, 2015, she did not expect to be put on the punt return team.
Callinan was six rows away from the field at M&T Bank Stadium in Baltimore for an up-close view of the game between the Baltimore Ravens and the San Diego Chargers. While distracted by her cell phone, Baltimore Ravens punter, Sam Koch (“Koch”) was practicing his punts on the sideline during warmups, causing an “errant punt” to travel into the stands and strike Callinan in the face.
Callinan filed a complaint in the Circuit Court for Baltimore City (the “Trial Court”) alleging negligence claims against the Ravens, Koch and the National Football League (“NFL”) based upon the punting incident. The Ravens and Koch moved for summary judgment asserting the assumption of risk doctrine and the fact that the exculpatory clause printed on the back of Callinan’s ticket barred her claims as a matter of law.[1]
Then, Callinan amended her complaint to add a count of battery against Koch. The Ravens and Koch moved to dismiss the battery count on the grounds that it failed to state a claim upon which relief could be granted. The Trial Court granted the Ravens’ and Koch’s motion for summary judgment and motion to dismiss the battery claim, and all claims against the Ravens and Koch were dismissed with prejudice.[2] The Court specifically found that (1) there were no disputes as to any material facts; (2) Callinan assumed the risk as a matter of law; (3) the exculpatory clause was valid, and the clause did not fall into any of the exceptions to enforceability under Maryland law; and (4) the amended complaint failed to plead facts showing that Koch intended to harm Callinan.
Callinan then appealed the Trial Court’s decision, raising three questions for review: (1) whether the Trial Court erred in dismissing the battery claim against Koch; (2) whether the Trial Court erred when it ruled that Callinan assumed the risk of being struck by an errantly kicked football at a professional football game; and (3) whether Callinan was entitled to additional discovery before the Trial Court’s ruling on the motions.
Did The Trial Court Err in Dismissing the Battery Claim Against Sam Koch?
Callinan argued that, pursuant to the doctrine of transferred intent, the Trial Court erred in dismissing the battery claim. Specifically, her amended complaint presented multiple allegations, such as that Koch was in control over where and when he was to practice punting during pre-game warm-ups; that, as a professional punter with the ability to punt the football nearly 60 miles per hour, Koch intentionally kicked the football which ended up in the grandstands and struck Callinan; that the errant football striking Callinan constitutes an intentional offensive touching, and; that she suffered severe injuries and economic losses as a direct and proximate result of the offensive and intentional touching.
Battery is an intentional tort. It is undisputed that Koch did not intend to strike Callinan when he punted the ball during pre-game warm-ups, and Callinan’s attempt at working around that factor failed to sway the Courts. The argument that Koch intentionally kicked the football and the football then struck Callinan was not enough to prove that this was intentional misconduct by way of transferred intent. Though the Court noted that “one can commit a battery through indirect contact, e.g., by ‘putting an instrumentality in motion,’” (see Hendrix v. Burns, 205 Md. App. 1, 20, 43 A.3d 415 (2012)), it ultimately found that the complaint did not plead facts showing that Koch punted with a “substantial certainty” that the football would cause an offensive contact with any other person.
The Appellate Court rejected this argument, predicating its decision largely on the inconsistencies in Callinan’s description of the strike. It could not possibly be accurately described as both an “intentional offensive touching” and “errant[.]” To the Court, “errant” describes “something that has sort of taken its own path, wandered off, done something that it was not intended for.” The Appellate Court’s definition in this regard stood in stark contrast to the Merriam-Webster definition: “straying outside the proper path or bounds.” Regardless of the accepted definition, the Appellate Court found that the allegation does not show that Koch intended to cause a harmful or offensive contact with anyone, or even that Koch intended for the football to stray into the stands, and instead categorized it as an “accidental touching.” The Appellate Court ultimately did not consider the doctrine of transferred intent because, according to the doctrine, “a defendant who intends to strike a third person is liable if the blow miscarries and strikes the plaintiff.” Id. at 24 (quoting 1 Harper James & Gray on Torts § 3.3 at 318 (3d ed. 2006)). Here, it is not alleged that Koch intended to strike anyone at all and, therefore, the transferred intent doctrine is inapplicable.
Did The Trial Court Err When It Ruled That Callinan Assumed the Risk of Being Struck by An Errantly Kicked Football at A Professional Football Game?
The Appellate Court sided with the Ravens and Koch in its application of the assumption of risk doctrine after considering Callinan’s deposition testimony as it related to her knowledge of attending a game. Callinan quite candidly testified that, while watching football on television, she had seen kickers miss the netting and the football unintentionally travel into the stands for multiple different reasons. The Court held that this information established the first element of the doctrine of assumption of risk – knowledge of the risk of danger.
The second element of the doctrine of assumption of risk – appreciation of the risk – was met by Callinan’s “experience and familiarity with football shows” coupled with the fact that “she appreciated the dangers associated with the sport.” While Koch’s stray punt was not part of the game itself, those who are familiar with football are well-aware that the pre-game warm-up is customary to the game.
The Court relied on Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 203 (Mo. 2014) in support of its position. In that case, the Court held that the risk of injury from the mascot’s hotdog toss was not an inherent risk of watching a baseball game. Here, the Appellate Court distinguished a mascot throwing a hotdog into the stands from a player kicking a ball into the stands, as there is “no link between the game and the risk of being hit by [a] hotdog toss.” Here, however, Koch was punting in preparation for playing football, and the fans were in the stand to watch football. Therefore, Callinan’s position that she could not assume the risk “prior to the game even beginning” was unsuccessful. In other words, the Court may have been more likely to side with Callinan if she had gotten hit in the head with a hotdog instead of a football.
As to the third element of the doctrine of assumption of risk – voluntary exposure to the risk – it is undisputed that Callinan voluntarily attended the Ravens/Dodgers game and sat six rows from the field, fully aware that the football could find its way into the stands, for one reason or another.
Was Callinan Entitled to Additional Discovery Before the Court’s Ruling on The Motions to Dismiss and For Summary Judgment?
Prior to the Trial Court’s ruling on the subject motions, Callinan had not been provided with the Ravens’ and NFL’s policies and procedures manuals, which outline when and where players can warm up before a game. Additionally, Callinan had not yet deposed Ravens employees, NFL employees, and Koch and, as a result, requested that the Trial Court stay its decision. The Appellate Court, however, found that, based upon its review of the record and Callinan’s deposition testimony, there was no question as to whether she assumed the risk and, therefore, no genuine issue as to any material fact.
While it is clear that Callinan assumed the risk, and that doctrine is an absolute defense, absent from the Court’s discussion was the impact, if any, of evidence showing that Koch’s conduct was forbidden. For example, the policies and procedures manuals, which would certainly be produced in additional the discovery sought, may have shown that Koch was not allowed to kick the ball in that place at that time. Against that factual backdrop, could the Court fairly hold that Callinan assumed the risk? One thing we can assume is that Callinan will likely be rooting against the Ravens should she risk attending future games.
[1] The back of Callinan’s ticket read “Ticket holder assumes all risks incident to the game or related events, including the risk of lost, stolen or damaged property or personal injury of any kind[.]”
[2] The NFL then file a motion for summary judgment on the same grounds as the Ravens and Koch, which was also granted.