Dunagan v Coleman (2014) H&FLR 2014-2

Texas Court of Appeals (Fifth District)

7 April 2014

Coram: Moseley, FitzGerald and Evans JJ

Appearing for the Appellant (Defendant): Gregory Ave and Jay Harris (inst. Walters, Balido & Craine)

Appearing for the Respondent (Plaintiff): Niles Illich (inst. Law Office of Ben Abbott)

Catchwords: Texas – softball – negligence – inherent risk – recklessness

Facts: The parties were teammates on a slow pitch softball team and had played together many times. Prior to the first game of the season the defendant asked the plaintiff to catch a few pitches from him to assist him (the defendant) to focus his pitches. The defendant threw a rising fastball which the plaintiff failed to catch. The ball hit the plaintiff in the mouth causing significant injuries.

The plaintiff sued, alleging both negligence and gross negligence. A jury in the 134th Judicial District Court found that the defendant had been negligent and awarded significant damages.

Held: That the verdict ought be reversed. It is an inherent risk of softball that a ball will hit a participant and cause injury. The plaintiff’s injuries resulted from a risk inherent in the sport he was playing. As such, the defendant was not at fault based on ordinary negligence. A defendant will be found liable, however, if his conduct was grossly negligent, intentional (1) or reckless. Recklessness in this context would have taken the form of the defendant knowing or having reason to know that his pitch resulted in an unreasonable risk of physical harm, and that the risk of such harm was substantially greater than that which would be classed as “mere negligence”.

The Court observed that the fact that the incident occurred during a warm up rather than a game was not relevant: the inherent risks of a sport did not change depending on whether the conduct in issue occurred in practice or in competition.

(1) The court did not explore liability for harms caused by intentional conduct in cases where intentional and forceful contact is part of the sporting activity.


 The Court’s judgment is available here.