Legal Question in Personal Injury in California
Severe Eye Injury during batting practice
During a City Senior Softball League pre-seaon batting practice in March, a softball was thrown to me without warning, from behind as I turned and struck me in the eye. Five sutures in the ER and six surgeries later. The man's HO Insurance told me yesterday they will be sending a $1000 check (the limit) under his Medical coverage and will be ''investigating'' his liability for possible more $ for me under his Liability. I have permanent eye damage, the lasik surgery I had done 1.5 years ago has been erased. I was told by an atty. that I did not have a case, ''assumed risk''. The thrower's insurance agent also mentioned this yesterday. I replied that I believed this did not relief her insured from protecting me against any risk that could cause me injury. No reply. What should I do if an additonal amount is offered to me? Will it be a first and final $ offer? I am retired and so I have no lost wages. I have out of pocket co-payment dr visits, medication costs and mileage reimbursement hopes ($.20 per mile?) Thank you for any and all help.
3 Answers from Attorneys
Re: Severe Eye Injury during batting practice
I agree with Mr. Boyd's assessment.
To be clear, assumption of the risk means simply that during certain activities you have assumed the risk of getting injured. For instance, being at a zoo assumes no risk. Sticking your hand in a gorilla's cage assumes the risk.
Re: Severe Eye Injury during batting practice
Getting hit with a ball is a risk of participating in the game of softball. However throwing a softball toward a participant whose back is turned is not part of the game and not reasonably part of the risk of the game, unless it was done during play. You say this happened during batting practice. Were you at bat? Any chance you have in this case is VERY fact dependent.
Re: Severe Eye Injury during batting practice
Athletic activities carry an assumption of a reasonable risk of injury attached to the activity. In the context of baseball/softball, that has been held to include the risk of being hit by a ball. While assumption of the risk can be a complete bar to recovery, its generally a factor of comparative fault.
Settlement negotiations are a different topic. If an offer is made, you should consider it in view of your actual expenses. You can counter, accept, or simply reject the offer with the understanding that you have 2 years in which to preserve your claim by filing a lawsuit.
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