PITRE V. EMPLOYERS LIABILITY ASSURANCE CORP.
234 So. 2d 847 (1970)
NATURE OF THE CASE: Employers (D) appealed from a judgment which awarded Pitre (P)
damages for the death of their son who died of injuries received when he was struck in the
head by the hand of a fair patron winding up to pitch a baseball at a concession stand.
FACTS: A terrible accident occurred at the baseball concession stand operated at the
annual Fireman's Fair conducted upon public school grounds in the City of Thibodaux by the
Fire Department. The funds raised are used exclusively to purchase equipment for the
companies concerned. The fair is designed to attract people of all ages. It nets the Fire
Department approximately $40,000 -- $45,000 yearly. Beyond the counter were the patrons
throw the balls there were no barriers, ropes or other devices to restrain the thrower or
isolate or separate him from spectators or other patrons attending the fair. Two members of
the Fire Department operated the concession. It is conceded that LeBouef, who was seventeen
years of age at the time, in the act of 'winding up' to pitch a baseball at the concession,
struck young Anthony Pitre in the left temple region. Anthony died. Ps, Anthony's parents,
sued for damages. D, the insurers were sued directly and they both third partied David
LeBouef, the patron who struck Anthony. LeBouef's testified that he did not see Anthony
prior to the accident. He acknowledged inadvertently striking the child on the side of the
head as he drew his hand behind him to pitch a ball. He recalled that the area near the
baseball concession was not particularly crowded. He also observed that there was no
expressly designed 'pitcher's box' marked off outside the counter to restrict the area from
which the participant was required to throw. An expert on conducting fairs, testified he has
had twenty years experience in the business. He has operated approximately 48 similar
baseball concessions or stands. He noted that safety is not considered as large a problem
with concessions of this type as in the case of mechanical rides and amusement devices. His
visits to hundreds of similar concessions at other fairs showed the only significant hazard
was that incident to ricocheting baseballs. He has never seen or used restraining ropes or
barriers to isolate participants from spectators. He conceded that professional fairs draw a
line on the ground six feet from the counter and require participants to stand within this
line when throwing. He explained that since the thrower must cast down at the targets, the
closer the participant is to the target, the less accurate he is because of the trajectory
involved at a short distance. The farther away the thrower stands, the more level his
trajectory and the greater the accuracy. He noted that the six foot restraining line used by
professionals has no relation to safety. He further noted that insurance company safety
engineers have always approved the operation of his baseball stands without barriers and
even though his employees remain inside the concession area as did defendant's operators in
the instant case. He also stated that, as a matter of policy, he did not permit very young
persons to patronize such a game because they lacked physical strength to knock over the
dolls. The trial court dismissed the third party demands as to LeBouef, rendered judgment in
favor of P in the sum of $14,779.26 and $12,500.00, respectively. Ds appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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