“It helps if the hitter thinks you’re a little crazy.”
— Nolan Ryan
“If you don’t think he did it on purpose, you don’t know the game.”
— Robin Ventura
The date was Aug. 4, 1993. Nolan Ryan, then 46 years of age, had just won his 321st game in the major leagues, and the only thing standing between him and the Hall of Fame was retirement. But in the top of the 3rd inning, Ryan found that there was one unexpected thing standing between him and home plate — Chicago White Sox third baseman Robin Ventura.
Ventura had singled in the first inning and Ryan, trying to reclaim the inside part of the plate, plunked the left-handed hitting Ventura on the right arm. Ventura turned, paused for just a second, and then threw down his bat and charged the mound. Ventura was 26 — twenty years younger than the legendary Ryan. The Texan had already thrown seven no-hitters, struck out more than 5,000 batters, and was finishing up an incredible career. And did I mention that he was 46 years old? Surely, the much younger Ventura would have a major advantage in a fight between the two.
But Ryan was an experienced cattleman, too. He immediately put that experience to use. As Ventura reached the mound, Ryan wrapped his left around Ventura’s neck, froze him in a choke-hold, and proceeded to pummel the much younger man with a series of right hooks. Ryan would probably still be hitting Ventura today if both benches hadn’t poured onto the field and tackled them. Ventura was ejected, as was White Sox manager Gene Lamont. Ryan remained in the game, saw his Rangers rally, and walked away with win number 322 — the third to the last of his career.
Now, Nolan Ryan certainly didn’t go to the ballpark that day expecting a fight. He didn’t ask Ventura to run at him, and he wasn’t about to follow Ventura to his locker room and pick a fight with him. The only reason Ryan’s right fist ended up in Ventura’s face is because Ventura chose to charge the mound.
If you’re walking down the street tomorrow and randomly charge at someone who you think has wronged you with a weird look, I guarantee you that after the police are called, you’re going to be charged with disorderly conduct or assault. Why then did Ventura walk away with two-game suspension and a $1,500 fine, but nothing more? Why, for that matter, do hockey players not get charged all the time for fights in hockey games?
The answer lies in something called “assumption of the risk.” It is a defense that claims that there was no duty to exercise care rather than a claim that care was properly exercised. It is raised particularly in cases involving dangerous activity, risky endeavors, and in sporting events.
Never was this better demonstrated than the 1990 Ohio Supreme Court decision in Marchetti v. Kalish — a lawsuit between a 13-year-old and a 15-year-old over an injury sustained in that famously dangerous contact sport known as “kick the can.” It’s not every day that a state Supreme Court justice gets to write phrases like, “the other participants run and hide while the designated ‘it’ looks for them.” (Nothing like legalese to take all the fun out of being a kid.)
In this particular game, Mr. Kalish was alleged to have run over Ms. Marchetti, causing her to fall and break her leg. After first concluding that they would treat cases involving children no differently than they would those involving adults, the Ohio Supreme Court then concluded that in order to succeed in a lawsuit involving injury sustained in a sporting event, the plaintiff would have to show reckless or intentional behavior — mere negligence would not be enough since the plaintiff had assumed the risks inherent in the game.
Ms. Marchetti therefore lost her broken leg case. Decisions like these are the same reason that a hockey player who gets in a fight (accepted risk inherent in the game) doesn’t sue for injuries, but one who smashes his stick over another player’s head (intentional conduct beyond the assumed risk) may face legal action.
Chief Justice Moyer, lamenting that the kick the can case had to come before the court at all, recalled the words of Robert Louis Stevenson, “youth is wholly experimental.” If you’ve never played kick the can — find the decision in Marchetti v. Kalish. It contains one appendix — step-by-step instructions on how to play — fully approved by a unanimous Supreme Court.
History provides us one fascinating side note about that 1993 Rangers-White Sox game. It turns out that among the fans in attendance was the managing general partner of the Texas Rangers, one George W. Bush. The man who would later be our 43rd president said he considered charging the field himself during the brawl, but that he then noticed Bo Jackson running onto the field, “and decided to stay where I was.” Bo knows basebrawls.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.