643 F.2d 20 (1st Cir. 1981)
On September 16, 1975, a professional baseball game took place at Fenway Park in Boston between the Baltimore Orioles and the Boston Red Sox.1 The plaintiff David Manning was seated as a spectator in the right field bleachers behind a wire mesh fence.2 Defendant Ross Grimsley, a pitcher employed by defendant Baltimore Baseball Club, Inc., was warming up in the bullpen near those bleachers during the first three innings by throwing a ball from the pitcher's mound to a plate.3
Spectators in the bleachers continuously heckled Grimsley.4 On several occasions immediately following the heckling, Grimsley looked directly at the hecklers rather than merely into the stands.5 At the end of the third inning, after his catcher had left the catching position and was walking toward the bench, Grimsley faced the bleachers, wound up or stretched as though to pitch toward the plate, and threw the ball at more than eighty miles per hour at a ninety-degree angle directly toward the hecklers.6
The ball passed through the wire mesh fence and struck the plaintiff.7 Witness Murphy testified that Grimsley had an angry, frustrated look on his face when he released the ball and that he looked directly at people in the stands immediately after verbal remarks.8 Witness Goldsmith testified that Grimsley looked right directly at the hecklers and that it was right after the comments they yelled.9
The plaintiff brought a diversity action in federal district court against Grimsley and the Baltimore Club asserting both a battery count and a negligence count.10 The district judge directed a verdict for the defendants on the battery count.11 The jury returned a verdict for the defendants on the negligence count, and the district court entered judgment for the defendants on both counts.12 The plaintiff appealed from the judgment on the battery count to the United States Court of Appeals for the First Circuit.13
Whether the evidence viewed in the light most favorable to the plaintiff permitted a reasonable inference that Grimsley intended to throw the ball toward the hecklers so as to cause them imminent apprehension of harmful contact?14
An actor is subject to liability to another for battery if he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and a harmful contact with the person of the other directly or indirectly results.15
Yes. Grimsley was an expert pitcher. On several occasions immediately following heckling he looked directly at the hecklers, not just into the stands.16 The ball traveled at a right angle to the direction in which he had been pitching and in the direction of the hecklers.17
From this evidence the jury could reasonably have inferred that Grimsley intended to throw the ball in the direction of the hecklers, to cause them imminent apprehension of being hit, and to respond to conduct presently affecting his ability to warm up.18 This satisfies the elements of battery under the Restatement rule because the intent to cause apprehension in the third persons, the hecklers, led to harmful contact with the plaintiff who was not the intended target.19
The district court erred in directing a verdict for the defendants on the battery count.20
Whether the unappealed jury verdict for defendants on the negligence count collaterally estopped the plaintiff from pursuing his battery claim against Grimsley?21
In Massachusetts, where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is ordinarily conclusive between the parties in a subsequent action.22 However, a judgment on one cause of action is not conclusive in a subsequent action on a different cause of action as to questions of fact not actually litigated and determined in the first action.23
No. The record does not show that the jury determined as a fact that the defendant Grimsley did not throw the ball intentionally in the direction of the bleachers.24 As the case was submitted to it, the jury would have been required to find both that Grimsley intended to throw toward the bleachers.25 Additionally, a ball so thrown involved an unreasonable risk of injuring the plaintiff.26 In returning a general verdict for the defendants the jury left us uninformed whether the plaintiff failed to persuade them on the first or the second of the issues.27 So far as we know, the jury may have determined that Grimsley threw the ball intentionally in the direction of the bleachers. But the jury may have been of the view that such a throw presented no unreasonable risk to the plaintiff because he was located behind a net intended to protect him.
Since the defendant Grimsley has not borne the burden of proving that the judgment in the negligence action was based on the determination of the factual question whether Grimsley threw the ball intentionally in the direction of the bleachers, that judgment is not conclusive in the battery action.28
The plaintiff is not collaterally estopped from pursuing his battery claim against Grimsley.29
Whether the Baltimore Club could be held liable as employer for Grimsley's conduct in response to the spectators' heckling under Massachusetts law?30
In Massachusetts, where a plaintiff seeks to recover damages from an employer for injuries resulting from an employee's assault, what must be shown is that the employee's assault was in response to the plaintiff's conduct which was presently interfering with the employee's ability to perform his duties successfully.31
Yes. Constant heckling by fans at a baseball park would be conduct within the meaning of the rule from Miller v. Federated Department Stores.32 The jury could reasonably have found that such conduct had either the affirmative purpose to rattle or the effect of rattling the employee so that he could not perform his duties successfully.33 The jury could reasonably have found that Grimsley's assault was not a mere retaliation for past annoyance.34 It was a response to continuing conduct which was presently interfering with his ability to pitch in the game if called upon to play.35
The defendant Baltimore Club's contention that the heckling constituted mere words which annoyed or insulted Grimsley and did not constitute conduct is rejected. Those words did not presently interfere with his ability to perform his duties successfully. The constant heckling satisfies the conduct element and the timing shows present interference.36
The battery count against the Baltimore Club should have been submitted to the jury.37