Jury finds Louisville Slugger liable in case about aluminum bat

I remember having read and heard debates about the safety of aluminum bats used in baseball at the high school and college levels (they are not allowed in the professional leagues). I remember reports saying that the bats provide a tremendous level of force to the ball which then travels at a much higher rate of speed toward the fielders. Under such circumstances, players in the infield, particularly pitchers and third basemen are very vulnerable because of the very limited time they would have to react to a sharply hit line drive.

Yesterday, I saw in several sources around the internet a story that a jury in Montana imposed liability on Louisville Slugger, the baseball bat manufacturer, for failing to provide adequate warnings about the dangers posed by aluminum bats and awarded $850,000 to the family of an 18 year old who died when hit with a baseball while pitching in a game in 2003. Go here for the full story and some interesting comments criticizing the decision. This site has the story and links to other related stories. More versions of the story are linked here.

The arguments against this type of verdict are not new: that kid assumed the risk, that a warning would not have made a difference, that plaintiffs lawyers are just using the system to bring frivolous lawsuits, that cases like these result in ridiculous warnings on all products, etc etc.

I think these arguments miss the point. First of all, no one has ever argued that a warning makes a product safer. A warning just provides information that the consumer can then use to make decisions on how to protect him/herself given the risks involved in using the product.

Second, it is true that there are some products (and some activities) that are inherently dangerous, but this does not mean that everyone understands the level of risk they pose.

 Finally, and I think most importantly in this case, sometimes we need to ask whether a product is so dangerous that it should not be used at all, period. I understand you can't play baseball unless the hitters use a bat...duh! But it does not have to be an aluminum bat! Why expose the players to more danger if there is a safer alternative? The alternative is not perfect and it won't eliminate all the risk, but it is safer.

Now, some argue the result would have been the same even if the bat had been made of wood. I have no expertise on that question, but I can concede that may be true in some cases. I am sure it is not true in all cases, though, and it is those cases that matter.

Also, if it is true that the death in this case would have happened even if the bat used had been a wooden bat, I wonder how come the defendant did not get the case dismissed early on arguing that the plaintiff could not establish cause in fact. Did they not have an expert ready to testify? Aluminum bats are probably ok for very little kids who do not generate the bat swing speed necessary to make much of a difference (and for many of whom a wood bat would be too heavy), but as the kids get bigger and stronger the leagues should move to wooden bats.