LEGAL CONCERNS: Law Professor Doug Abram’s Analysis of the Lawsuit against an 11-year-old Little Leaguer

Posted by Rick Wolff on June 26, 2012 · Leave a Comment

WHEN ADULTS SUE AN 11-YEAR-OLD

LITTLE LEAGUER FOR THOUSANDS OF DOLLARS

By Doug Abrams

With perceptive insights from Rick Wolff and attorney Steve Kallas, The Sports Edge did an excellent show on Sunday morning concerning a troubling lawsuit filed recently in Manchester Township, New Jersey. Elizabeth Lloyd and her husband seek thousands of dollars in damages from defendant Matthew Migliaccio, a catcher on their son’s Little League team.

The claim is that while Ms. Lloyd was sitting nearby at a game two years ago, she was struck in the face by a ball overthrown by Matthew (who was then 11 years old) while he was warming up a pitcher in the fenced-in bullpen at the coach’s instruction and under the coach’s supervision. The 45-year-old Ms. Lloyd claims more than $150,000 damages for medical expenses, plus unspecified damages for pain and suffering which reportedly could push the amount a few hundred thousand dollars higher. Her husband claims damages for loss of her “services, society and consortium.”

Rick and Steve did an excellent job questioning whether, under the circumstances reported, an 11-year-old can be held liable for a toss made to a teammate in the ordinary course of a Little League game. They also did an excellent job speculating about why the Lloyds may have chosen to sue Matthew rather than the more obvious defendants, Little League Baseball Inc. for conducting the game, or the Manchester Township for hosting the game on its field. (An 11-year-old, with the family’s homeowners insurance policy, may seem an easier target than a major national corporation backed by a well-heeled law firm, or the township with resources to dig in their heels.) I will not try to gild the lily by adding to what Rick and Steve contributed on these two threshold questions, except to say that I share their doubts and concerns.

Youth League Lawsuits

In recent years, many observers have grown disgusted with sports parents’ lawsuits that, quite frankly, cause most of us to hold our noses. The defendants tend to be coaches who serve as volunteers or for modest stipends that help cover some expenses. Some lawsuits charge that the coach negligently failed to teach the parents’ child a particular skill, such as how to catch a fly ball in baseball. Other lawsuits charge that the coach caused the child severe emotional upset, for example by cutting the child from the team in competitive tryouts that involve three or more times the number of players than the roster can hold.

Now we have a parent’s lawsuit brought not against an adult coach, but against an 11-year-old who, by media accounts, did nothing wrong but play baseball with his friends, including the plaintiffs’ son. I have never heard of a lawsuit by a parent spectator against their pre-teen son’s teammate for ordinary game performance, and we can hope that this lawsuit is simply a blip on the radar screen that does not encourage copycat adults.

Lawyers as Gatekeepers

The rest of this column concerns one comment made by Matthew’s father, Bob Migliaccio, who appeared as a guest on the first segment of Sunday morning’s show. Speaking about the Lloyds’ lawyer, Mr. Migliaccio asked “Is there any conscience there?” Because I am a law professor, that commonsense comment by a non-lawyer resonated with me.

This column is not about the Lloyds or their lawyer because I do not know them or their individual thought processes. Indeed this column is not even solely about this particular case because its dynamics hold two nationwide implications beyond Manchester Township.

The first nationwide implication is that youth sports programs need to consider requiring the most comprehensive waivers possible and offering the most comprehensive insurance protection possible. We live in a litigious society. The odds of an adult or child being charged as a defendant in a lawsuit arising from ordinary youth sports play might resemble the odds of being hit with lightning, but precautions are important. Lightning does strike, and lawsuits do happen because a would-be a plaintiff can usually find a lawyer who is willing to file. Rick is right that a lawsuit such as the one the Migliaccios face could happen to anyone’s child in any youth sport.

The second national implication flows from the first. Precautions against litigation assume added importance because many lawyers no longer seek to restrain would-be clients, if they once did. I recall a thoughtful book written by Sol M. Linowitz in 1999, near the end of his distinguished career as a lawyer, diplomat, former Xerox Corp. chief executive, and winner of the Presidential Medal of Freedom, the nation’s highest civilian honor. In a chapter entitled “Living the Law,” Linowitz quoted Elihu Root, himself a Nobel Peace Prize laureate who combined private law practice with service as Secretary of State and as longtime President of the Carnegie Endowment for International Peace. “About half the practice of a decent lawyer,” said Root, “consists of telling would-be clients that they are . . . fools and should stop.”

“Nobody ever lost a client by doing exactly what the fellow wanted,” Linowitz explained, “but much lucrative legal work has been sacrificed by lawyers who regretfully told prospective clients that this was something they were not willing to do.” When a lawyer fails to say “no” at the right time, Linowitz added, “[t]he public pays, because the rule of law is diminished.”

Entitlement

In a discussion about a lawyer’s professional obligations to decline a case, it is no answer to say that “everybody is entitled to a lawyer.” Week in and week out, lawyers reject plenty of prospective clients who walk through the door. The most common reason for turning down a would-be client is that he or she cannot pay. In a recent New York Times op-ed article, the chief justices of the New Hampshire and California supreme courts report that throughout the nation, “[a]n increasing number of civil cases go forward without lawyers. Litigants who cannot afford a lawyer, and either do not qualify for legal aid or are unable to have a lawyer assigned to them because of dwindling budgets, are on their own.”

Because I teach family law and juvenile law at the state university law school, I routinely get frantic telephone calls from desperate men and women who seek help from law students or Legal Aid because they cannot afford to retain any of the several lawyers they have approached to represent them in divorce or child custody cases. The outcomes of these heart-wrenching cases will likely affect the callers and their families for the rest of their lives, but most of the callers end up walking into court alone when no lawyer will take the case. Nobody suggests that any of the callers is “entitled” to a lawyer.

Lawyers also often turn down cases when the initial interview indicates that the would-be client seems difficult to manage or overly emotional; when the client seems to lack a sense of personal chemistry with the lawyer; or when, as Root and Linowitz suggest, the proposed lawsuit does not have merit in the lawyer’s professional opinion.

Serious Consequences

Meritless lawsuits carry serious personal consequences. For enrolling their 11-year-old in a community baseball program, the Migliaccios now find themselves as national (and indeed, international) public figures who must dig into their own pockets to retain a lawyer to protect the boy against court proceedings. With Little League’s national office and their homeowners insurer taking hands-off attitudes, the Migliaccios face thousands of dollars in legal fees, not to mention perhaps thousands more in a settlement with the Lloyds to avoid trial and even higher legal bills.

But money is not all. Because litigation papers are public information easily available by an Internet word search of a party’s name, Matthew stands to be permanently stained by a record of alleged negligence and recklessness and intentional conduct, even if settlement papers ultimately disclaim liability. Colleges and the boy’s future employers might roll their eyes at the lawsuit years from now, but they might not.

Rick and Steve also pointed out that if the case proceeds further, sworn depositions and adversary questioning at trial might await Matthew and his pitcher, other adolescent eyewitness teammates, and his coaches. Depositions and trials are distasteful, emotionally draining, and potentially intimidating processes for most people, particularly children.

One Lawyer’s Hopes

Ms. Lloyd allegedly suffered serious injury, and she deserved (and evidently received) every indulgence from her family and other team members. Some injuries, however, are simply unavoidable non-compensable accidents, even after a sustained search for the deepest pockets seeks to deflect blame and legal liability onto someone else.

The Lloyds and their lawyer are adults who have chosen to seek their day in court, as they are entitled to do. I cast no aspersions, but I hope that I would make a different choice if I were a practicing lawyer and the Lloyds approached me to file a lawsuit seeking damages in the high six figures against an 11-year-old for playing baseball.

Even the merit of a lawsuit against Little League or the Manchester Township might seem questionable because baseball parents like the Lloyds, attending a game, should know that youth leaguers do not always control their throws because they are learning. Whether to sue one or both of these corporate entities is a judgment call, but I would draw the line at suing an 11-year-old and slapping him with legal papers served by the sheriff.

With visions of Elihu Root and Sol Linowitz in my head, I hope I would tell the Lloyds politely but firmly: “You are entitled to hire a lawyer, but you are not entitled to me. You may approach another lawyer if you wish, but I will not do it.”

[I had planned to continue last week’s column with “Being an Assistant Coach — Part II” this week, but the New Jersey lawsuit calls for timely discussion. Unless something else develops, I will present “Part II” next week.]

[Sources: Sol M. Linowitz, The Betrayed Profession: Lawyering at the End of the Twentieth Century (1999); John T. Broderick, Jr. & Ronald M. George, A Nation of Do-It-Yourself Lawyers, N.Y. Times, Jan. 2, 2010, p. A21 (op-ed); cbslocal.com, N.J. Woman Files Lawsuit After Being Hit By Errant Throw From 11-Year-Old at Little League Game, June 23, 2012; Pedro Oliveira, Jr., NJ Woman Sues After Being Hit in Face With Baseball Overthrown by Little League Kid, N.Y. Post, June 23, 2012; Woman Struck in Face With a Baseball at a Little League Game is SUING 11-Year-Old Catcher Who Threw It for $150,000,