Manning_v_Grimsley.doc

Manning_v_Grimsley.doc - Manning v Grimsley 643 F.2d 20(1st...

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Manning v. Grimsley, 643 F. 2d 20 (1st Cir. 02/27/1981) [1] UNITED STATES COURT OF APPEALS, FIRST CIRCUIT [2] No. 80-1145 [3] 1981.C01.40276 <http://www.versuslaw.com>; 643 F. 2d 20 [4] decided: February 27, 1981. [5] DAVID MANNING, JR., PLAINTIFF-APPELLANT v. ROSS GRIMSLEY AND THE BALTIMORE BASEBALL CLUB, INC., DEFENDANTS-APPELLEES. [6] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [HON. JOSEPH L. TAURO, U.S. District Judge ] [7] Robert S. Wolfe, Boston, Mass., for plaintiff-appellant. [8] William J. Gately, Jr., Boston, Mass., with whom Williams & Jackson, Boston, Mass., was on brief, for defendant-appellee The Baltimore Baseball Club, Inc. [9] Jeffrey M. Smith, Boston, Mass., with whom Paul T. Smith, and Harvey R. Peters, Boston, Mass., were on brief for defendant-appellee Ross Grimsley. [10] Before Campbell, Breyer, Circuit Judges, and Wyzanski, *fn* Senior District Judge. [11] Author: Wyzanski [12] In this diversity action involving the law of Massachusetts the plaintiff, complaining that he as a spectator at a professional baseball game was injured by a ball thrown by a pitcher, sought in a battery count and in a negligence count to recover damages from the pitcher and his employer. The district judge directed a verdict for defendants on the battery count and the jury returned a verdict for defendants on the negligence count. The district court having entered
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judgment for defendants on both counts, the plaintiff appeals from the judgment on the battery count. [13] In deciding whether the district court correctly directed a verdict for defendants on the battery count, we are to consider the evidence in the light most favorable to the plaintiff. That evidence was to the following effect. [14] On September 16, 1975 there was a professional baseball game at Fenway Park in Boston between the defendant, the Baltimore Baseball Club, Inc. playing under the name the Baltimore Orioles, and the Boston Red Sox. The defendant Ross Grimsley was a pitcher employed by the defendant Baltimore Club. Some spectators, including the plaintiff, were seated, behind a wire mesh fence, in bleachers located in right field. In order to be ready to pitch in the game, Grimsley, during the first three innings of play, had been warming up by throwing a ball from a pitcher's mound to a plate in the bullpen located near those right field bleachers. The spectators in the bleachers continuously heckled him. On several occasions immediately following heckling Grimsley looked directly at the hecklers, not just into the stands. At the end of the third inning of the game, Grimsley, after his catcher had left his catching position and was walking over to the bench, faced the bleachers and wound up or stretched as though to pitch in the direction of the plate toward which he had been throwing but the ball traveled from Grimsley's hand at more than 80 miles an hour at an angle of 90 degrees to the path from the pitcher's mound to the plate and directly toward the hecklers in the bleachers. The ball passed through the wire mesh fence and hit the plaintiff.
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