What's Wrong with Metal Bats?

Twelve-year-old Steven Domalewski, a New Jersey boy, was struck just above his heart by a baseball hit by a high-tech TPX composite bat. The bat is manufactured by the Hillerich & Bradsby Company of Louisville Slugger fame. The boy's injuries are extensive and tragic. I've written before about the ongoing controversy over metal bats, here. Domalewski filed suit today seeking damages from the bat maker, from Little League, and from the Sports Authority, the bat's retailer.

I feel very badly for the child. I think the current Little League bat specifications need to be amended. I think that the youth bats allowed today are obviously too lively. Yet I think the lawsuit will fail, and at the risk of sounding callous, I hope it does.

1. In much of life, injured people can (with much success) assign the cause of their injuries to others, even if that "other" is an inanimate product whose use instigates some calamity. The contention or perspective that the injured plaintiffs were in part or substantially responsible for their injuries, by failing to take proper precautions to protect themelves, is not usually successful. Plaintiffs are infantalized, allowed to behave carelessly and carefree, even where risks and dangers are obvious and even explicitly disclosed, such as with the use of tobacco products.

2. But not so with respect to sports activities. Sports law remains one of the last bastions of traditional tort doctrine. Sports participants, or in this case the parents who consent, are treated like grown-ups. Athletes who choose to participate in sports that carry patent dangers are held to their decision and are not heard to complain when those dangers become a reality. Even spectators however unfamiliar with the sport are generally precluded from legal complaint when they are in their seats and struck by a batted ball or deflected hockey puck. Sports is true reality television: an unvarnished competition in which athletes compete without favor or advantage, and largely without protection from injury save one's skill or wits. It can be rough stuff, and everyone knows it. Therein lies the magic that lures some while repelling others.

3. The very obviousness of the risk from a batted ball, coupled with the continued willingness of courts to apply the law's tough assumption of risk doctrine to injured athletes, will likely doom the New Jersey lawsuit, in my view. Even in a products liability case the "assumption of risk" idea has a foothold. The bat must, to be deemed "unreasonably defective," be dangerous to an extent beyond that which would be contemplated by its ordinary purchaser and beyond ordinary knowledge as to its characteristics. Any parent, like the tired TSLP, who has sat through the long hours of many, many youth and Little League baseball games knows full well of the velocity at which these new bats (and these seemingly new kids, bigger and faster than the skinny boys I remember from my wasted youth) accelerate the baseball. It's truly astonishing. I saw a big kid the other day (in a travel ball game, where the LL-style checks on birth certificates are less thorough) hit a line drive just slightly over the pitcher's head. The ball also, on that same line, went slightly over the centerfielder's head, clanging off the center field fence just barely lower than its height when leaving the infield. It may have been the hardest hit ball I've seen this side of a Mariners game. Yet the batter took his double with little more than a clap of his hands, just another routine hit, like he's done it before. I suspect he has. No twelve-year-old (even if he is 13) should be able to hit a baseball that hard. Stories like this abound. Kids are killing the ball, and everyone knows it. Strangely, the very obviousness of the danger the bats have created will likely insulate the manufacturers of those bats from liability.

4. Metal bats are here to stay. It is a false dichotomy to present the antiquated wood bat as the alternative to metal. Wood is comparatively flimsy, and the good wood is in short supply. The alternative to metal is metal, albeit metal manufactured to specifications that restrict its performance. One key performance characteristic of a metal bat is the difference between a bat's length and weight. For instance, the metal bat that hit the ball pitched by Steven Domalewski was 31 inches long and weighed 19 ounces, which meant the bat, in colloquial terms, was a "-12" bat, or a "12" weight drop. Little League, at least at the time Domalewski was injured, allows up to a -12 or -13 (not sure of this; I already bought TSLP Junior his bat, so I'm out of the market), with bats up to 32 inches in length and a 2 1/4 inch diameter barrel. Composite bats are also permitted. Little League to its credit is working with the bat manufacturers to put some limit on bats: starting in 2009, bats will be limited to (basically) the current "performance characteristic" (how fast a ball comes off a bat) that they now possess. Other leagues have greater limits: the state high school association where I live limits the "weight drop" to -3. Certain softball leagues have prohibited the use of some composite bats, which are thought to perform with a "trampoline effect" superior to aluminum. So the "cost savings" argument for metal bats misses the point: yes, metal bats are cheaper than wood, but that's not an argument against sharp restrictions on the capabilities of those metal bats.

5. Why doesn't Little League simply make all the kids hit bats that have a weight-length ratio that mirrors a wood bat (as do the high schools) and preclude composite or "two-barrel" bats that apparently, at certain velocities, spring the ball off the bat? Remember the controversy over the square-grooved irons made by Ping? That multi-million dollar antitrust suit brought by Ping against the PGA was eventually "settled" on the following complex terms: Ping won. Square grooves are now a fixture on the pro golf tour, rendering shots from the rough (unless it's US Open-style rough, about knee deep) to be more or less non-punitive. With their square grooves players can spin the ball from anywhere, so the only defense most golf courses have to marauding pros is length and glass-like greens. The old saw about the importance of keeping the ball in the fairway is becoming anachronistic, much as are the golf courses that defended par with rough. The Ping lawsuit reverberates though the sports law world to this day. Little League knows that any serious restriction on the specifications of metal bats would generate a serious antitrust lawsuit featuring seriously expensive lawyers, and at this point at least, LL doesn't likely enjoy immunity from suit. Like PGA golf, the game of baseball at the youth level has changed, probably forever.

6. So what to do? Sadly and with trepidation, I think we may see more Steven Domalewskis. The bat manufacturers claim there has been no increase in injuries from batted balls, and they may be right. But that's historical data, and the new bats presage the possibility of a new experience. The ball is being hit like never before. Big sweet spots, super-light bats, composite trampoline effects, big kids. One solution: why not look to the fielders? Instead of restricting the batter, leagues could require all fielders to wear heart guards and facemasks to prevent catastrophic injuries from these smashed baseballs. Parents could purchase these protections on their own, of course. But few boys, given peer issues, would willingly wear face masks on the field when no one else does. But a general obligation to wear this gear could make the game safer, at least if "safer" means fewer catastrophic injuries to fielders. I played youth and college hockey in an era where helmets were first required. We complained. A few kids (the ones with smart parents) even wore mouthguards. TSLP didn't, of course (sorry Mom), and got his pretty teeth knocked out. Today, all hockey kids have to wear helmets fitted with face protection. It can happen.

7. Requiring safety gear could generate undesirable side effects. Maybe a shortstop wearing a face mask and heart guard will not learn to properly protect himself with his positioning and glove work. Maybe kids, faced with wearing hot masks and chest protectors all over the diamond on a sunny summer afternoon, will opt to quit the game. These are real downsides, and so make me hesitate. I don't require my kid to wear this gear, and he usually pitches or plays the infield. (He also plays catcher; should I require a mask? I'm debating this.) I also, in the interest of full disclosure, have outfitted my kid with the bat he wanted, and it's a "-12," just like the bat that was involved in Domalewski's tragedy. But could any parent (except those blessed/cursed with utterly compliant children) make his kid wear headgear when no one else does? Could a parent stick a wood or mere -3 bat in his kid's hands and watch while his child struggles to get hits while the other kids clang out homers and doubles, bat cleanup and make the all-star teams? Collective action is needed. Help me, says the parent defenseless against his eleven-year-old!

8. By the way, I think naming Little League as a defendant in this suit was probably for show, not dough. Domalewski was not playing in a LL game when he was hurt. LL approves of equipment for LL games, and doesn't present itself as a body that certifies the safety of baseball equipment more generally. Similarly, the teenagers who sold this child the bat at the Sports Authority don't need to get a lawyer. This is a suit against the bat manufacturer. It's an attempt to get a jury to create a "bat regulation" where the league and manufacturer couldn't come up with one on their own. I don't like juries making laws; they're not equipped for nor charged with that task. I'd prefer to see it done with more widespread contemplation, and include comments from people outside that courtroom (namely me). In the meantime, I'm going to purchase my little pitcher a heart guard and tell him to keep the ball on the outside corner.