Softball game spawns lawsuit under Tort Claims Act

13-year-old player was struck in the head by a thrown ball

By Kris Olson
BridgeTower Media Newswires

BOSTON, MA - An Army National Guard sergeant was acting in an official capacity while supervising a softball game at a "Family Day" event and could be held liable under the Federal Tort Claims Act when the son of a member of his company was injured due to his negligence, a federal judge has decided.

The government argued that the officer should be judged by the same standard of care as participants at an athletic event articulated in the 1989 Supreme Judicial Court case Gauvin v. Clark and be found liable only if he had shown a reckless disregard for the child's safety.

But U.S. District Court Judge George A. O'Toole Jr. determined that a simple negligence standard should apply.

"By reason of his supervisory responsibilities, [the officer] specifically had a duty to protect [the child] (and others similarly situated) from foreseeable risks of harm," O'Toole said.

The 18-page decision is Woolf, et al. v. United States.

A rare 'autopsy' of damages

While O'Toole made a passing mention of the concept of premises liability, the key details were the child's age - 13 - and the officer's duty to supervise him, Boston attorney Marc L. Breakstone said. Had the child been 18, the same duty would not have existed.

"Where essentially you have custody of a minor and you invite him to go to a game with an adult, you have a responsibility to monitor the activity of that minor," Breakstone said.

Milton attorney Charlotte E. Glinka agreed.

"The supervising officer had overall responsibility for the outing, and the fact that he got caught up in the game meant he took his eye off the other ball: the safety of the people there," she said.

However, Boston attorney Jeffrey N. Catalano called the decision a "bold extension of negligence" to a situation in which the government had plausibly argued that it was unforeseeable the child would walk onto the field.

Catalano also opined that O'Toole's ruling was a "liberal interpretation of duty," given the standard of care generally assigned to directors of athletic events.

While the judge seemed to place a fair amount of significance in the supervising officer urging the catcher to throw the ball, Catalano noted that "people scream things all the time" as bystanders to an athletic event without being held responsible for what happens out on the field, and that it is not clear whether the officer yelling at or chasing after the child would have spared him his injuries.

Given the fact that 13-year-olds are unpredictable, coupled with research into how undeveloped the brain is at that age, Catalano said he was somewhat surprised that the judge determined the boy to be partially responsible for his own injuries.

He said he also was surprised that judge did not gravitate more toward one of the plaintiffs' alternate theories of liability - that organizers had not properly planned for a game in which young people and adults shared the field. Catalano said it is not uncommon in such situations for adults - with their superior size, athletic ability and dexterity - to get carried away when competitive juices start to flow, leaving a child injured. But ultimately, that would have led O'Toole to the same destination, Catalano said.

Breakstone said while the legal issues in the case were not necessarily novel, the judge's "autopsy" of how the damages were derived was notable, offering insights not typically found on a jury's verdict form.

"This was a learned judge expressing in a decision the process a jury should execute in coming to a verdict," he said, adding that the discussion was more typical of appellate decisions reviewing the proportionality of damages.

The explanation was particularly heartening, Glinka said, given that the child had suffered a traumatic brain injury. Having tried such cases herself, she said it is not always easy to convince the fact-finder of the extent and duration of such injuries.

To that end, the case offers a reminder for practitioners of the importance of establishing damages from the beginning of the case, relying not just on family members but on friends, teachers and others who have interacted regularly with the victim and can attest to the changes they have seen, Glinka said.

The plaintiffs' attorney, Peter E. Heppner of South Easton, declined to comment before knowing whether the government planned to appeal.

A spokesperson for the U.S. Attorney's Office also declined to comment.

Tragic accident, permanent imprint

Darren Woolf, a sergeant in the Army National Guard, attended a morale-building Family Day event at Camp Edwards on Aug. 2, 2009. Woolf and the other members of the 181st Engineering Co. were required and paid to attend.

Darren Woolf Jr.'s injuries resulted from an impromptu softball game later in the afternoon. After asking permission of both Darren Jr.'s parents, another soldier invited the boy to play in the game, though it was unclear whether he was the only young person to participate.

Sgt. Keith Hathaway, who supervised the activities at the event, was standing a few feet away from Darren Jr., inside the fence surrounding the softball field, when the fateful play unfolded.

After fielding a hit, a player threw the ball toward home plate. As the catcher retrieved the ball, Hathaway, who was standing along the third base line, yelled, "The play is to third!"

At the time, Darren Jr. was walking toward home plate, possibly to pick up a bat. The catcher, believing that Darren Jr. would not get any closer, immediately turned and threw the ball toward third base. The ball struck Darren Jr. on the side of the head, and he immediately dropped to the ground.

It was later determined that Darren Jr. had suffered a "Ping-Pong" injury, in which the brain bends slightly inward and then pops back outward.

Witnesses testified to the dramatic impact of the injury on Darren Jr.'s life. His dominant hand suffers permanent numbness, and while medication brought his seizures under control, they remain a constant risk. He also suffers from fatigue and exhaustion and experiences migraine headaches when he needs to concentrate intently, which limits his employment prospects.

His parents suffered emotionally as well. As one doctor testified, "Mr. and Mrs. Woolf easily come to tears when they reflect on this time in their lives and the unknown impact the accident will have on Darren's future."

'The senior solider on the field'

Applying the Gauvin standard, O'Toole found that the catcher had not been reckless and also rejected two other grounds for liability - that players should have been provided helmets and that organizers had not properly planned for a softball game involving young people.

But O'Toole found the hook he needed to hold the government responsible for Darren Jr.'s injuries in Hathaway's actions, or inaction.

"The evidence indicated that Hathaway may have been more interested in the game than in the safety of bystanders, which was his responsibility," O'Toole wrote. "He was the senior soldier on the field, and he had the authority and duty to act if a dangerous risk arose. By allowing Darren to walk past him towards an active play while remaining more focused on the play itself, Hathaway negligently allowed Darren to be exposed to the hazard of physical injury, and that hazard resulted in actual injury."

To a degree, O'Toole accepted the government's contention that Darren Jr., too, had been negligent, apportioning 80 percent of the blame to Hathaway and 20 percent to the teen.

"I conclude that a boy of Darren's age, intelligence, and experience should have been aware of some of the danger during a live play, but could reasonably have relied in large part on the supervising adults around him," the judge wrote.

With the help of expert testimony, O'Toole calculated Darren Jr.'s damages between future medical expenses, lost earning capacity, and pain and suffering at $1.27 million. Deducting his 20-percent fault, he was left with a $1.02 million award.

Denise Woolf was awarded $150,000 in loss-of-consortium damages, while Darren Sr. was awarded $75,000.

'Feres' does not apply

When considering Darren Sr.'s loss of consortium claim, O'Toole reviewed whether it was barred by the Feres doctrine, named for the 1950 Supreme Court case Feres v. United States. The case stands for the proposition that the government is not liable under the FTCA when servicemen's injuries "arise out of or are in the course of activity incident to service."

O'Toole explained that the Feres doctrine has three broad rationales: "(1) the distinctively federal character of the relationship between the government and its servicemembers, (2) the availability of alternative means of compensation for injuries, and (3) the possible effect of lawsuits on morale and discipline."

But here, Darren Sr. had no alternative compensation system available to him, the judge said.

"Moreover, a loss of consortium claim is a derivative injury, rather than a claim for independent damages," O'Toole wrote. "It derives from the government's negligence not to one of its soldiers but to a non-servicemember. Thus, neither the issue of the federal nature of the relationship nor effects on discipline are implicated."

Published: Thu, Oct 13, 2016


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