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Sports in California may have just gotten a bit riskier. Not for players facing the threat of injuries, but for organizations — from Pee Wee leagues to professionals — fielding a team of any kind. On Thursday, Los Angeles’ 2nd District Court of Appeal reinstated a college baseball player’s suit against the University of Southern California, the Pacific-10 Conference and the National Collegiate Athletic Association on the ground that a recently designed bat substantially increases the dangers of America’s pastime by letting the ball be smacked at hair-raising speeds. “A defendant owes no duty of care to protect a plaintiff against risks inherent in a particular sport voluntarily played by the plaintiff,” Justice J. Gary Hastings wrote. “But the defendant owes a duty to participants not to increase the risk of harm over and above that inherent in the sport.” Justices Norman Epstein and Daniel Curry concurred. The bat in question is an Air Attack 2, a hollow aluminum alloy bat with a pressurized air bladder that greatly increases the speed at which the ball leaves the surface of the bat. The court’s ruling, carried to its logical conclusion, could apply to all new equipment — golf clubs, hockey sticks, tennis rackets and more — that change the nature of games by increasing the risk of injuries. “The point is that any piece of sports equipment that makes the game more dangerous than it is by its very nature” poses the risk of greater liability on the institution behind a team or player, prevailing lawyer Wendy Lascher, a partner at Ventura, Calif.’s Lascher & Lascher, said Friday. “This ruling would apply to any kind of equipment.” The suit was filed by Andrew Sanchez, a pitcher for California State University, Northridge, who suffered serious head injuries after being hit by a line drive by USC batter Dominic Correa on April 2, 1999. Correa was using the Air Attack 2. Sanchez sued USC and the Pac-10 for negligence, and the NCAA and the bat’s manufacturer, Hillerich & Bradsby Co. of Louisville, Ky. — makers of the famed Louisville Slugger bat — for negligence and product liability. All four defended themselves by claiming, in part, that the suit was barred by the assumption of risk doctrines, which hold that anyone voluntarily participating in a sport assumes the inherent risk of injury. Los Angeles County Superior Court Judge Jane Johnson had granted the defendants’ summary judgment request, but the appeal court reversed, saying there was evidence that the Air Attack 2 “substantially” increased dangers to all players. Witnesses estimated the ball that hit Sanchez was traveling at a speed approaching 108 mph. The justices noted that the Pac-10 and the NCAA believed that the new generation of bats created a significant safety issue. The NCAA had promulgated rules aimed at eliminating aluminum bats from games, the court stated, but had not implemented them by the time of Sanchez’s injury. On Friday, it wasn’t clear whether those rules had yet taken effect, but in 2000, Jack MacKay Jr., who designed aluminum bats for Hillerich & Bradsby from 1987-97, petitioned the Consumer Product Safety Commission to recall all bats that exceed the performance of wooden bats. “Little did I know when I designed those bats,” he told The Associated Press, “we would end up with something that was just lethal.” To support its holding, the 2nd District cited Branco v. Kearny Moto Park Inc., a 1995 ruling by San Diego’s 4th District that said an “expert caliber jump” on a motocross course increased the risk of danger to a point that the course operator could be held liable. In comparison, the 2nd District said, Sanchez raised a triable issue of material fact about whether the design of the Air Attack 2 bat increased the inherent risk of the game. In that regard, Ventura lawyer Lascher said, the 2nd District’s ruling isn’t that novel, even though it does seem to extend liability for the dangers of new sports equipment. “It’s not stating a remarkable new principle of law,” she said Friday. “It’s just applying law that’s in effect.” Hillerich’s lawyers, Peter Zomber and David Ozeran of Los Angeles’ La Follette, Johnson, De Haas, Fesler, Silberberg & Ames, couldn’t be reached for comment. Neither could Lawrence Borys, a partner at L.A.’s Wilson, Kenna & Borys who represented USC and the Pac-10. Mark Eisenhut, a partner at Newport Beach, Calif.’s Call & Jensen who represented the NCAA, referred calls to association spokesman Wallace Renfro, who sounded a positive note. “The decision by the appellate court was really only one that said the summary judgment reached by the trial court was inappropriate, and should, in fact, be answered at trial,” Renfro said Friday. “I can tell you that we still feel very confident that after all the evidence has been presented that it’ll show that the NCAA’s position at the time of the injury was one in which the association was acting in the best interests and welfare of student athletes.” The case is Sanchez v. Hillerich & Bradsby Co., 02 C.D.O.S. 12237.

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