It's a baseball player's worst nightmare - losing a ball in the sun.
Most players duck and curse their bad luck for not making the catch, but not George Black. He sued for $1.5-million. And so far he's winning.
Mr. Black was playing third base in a men's slo-pitch recreational game in Hamilton on May 19, 2004, when the batter hit a line drive right at him during the eighth inning. Mr. Black, a long-time player, lost sight of the ball in the setting sun.
"It hit me in my index finger and my middle finger, crushing the index finger and fracturing the middle finger," he recalled. "It cut me in my eyebrow for 20 stitches, and then it drove my glasses into my face and now my eye is traumatized so the right pupil is much larger than the left."
Mr. Black filed a lawsuit, but not against the batter or any other player. He sued the owner of the diamond, steel giant ArcelorMittal Dofasco.
Mr. Black alleged Dofasco should have erected a sun screen at the diamond to protect players. The company considered putting a screen there months earlier but failed to do so, he added.
He also alleged the company failed to inspect the diamond or "warn [Mr. Black]of the dangers of the sun at the particular time of day."
"Players are not trained nor experts in knowing the safety precautions," Mr. Black alleged in his suit. "There have been no instructions in avoiding the sun. There were no instructions that the players are to cease playing when the sun is at a level that will interfere with their eyes."
Lawyers for Dofasco tried to have the case dismissed, arguing there were no reasonable steps the company could have taken to prevent the sun from getting into the eyes of players. To back up its case, Dofasco brought in Paul Jorgensen, an American architect who has designed several ball fields. Mr. Jorgensen testified that there was no requirement for sun shading at ballparks and that most stadiums are built so that the sun shines on the field and not into the batter's eyes. He added that it would be impractical to provide sun shading for all infield positions at all times.
But Mr. Justice James R.H. Turnbull of the Ontario Superior Court sided with Mr. Black and threw out Dofasco's motion.
The judge noted that diamond officials had talked about putting up sun screens at the field several months before Mr. Black's game. "The existing conditions were arguably dangerous," the judge said in a ruling released this week. He added that Mr. Black had submitted photographs of other baseball fields in Hamilton that had sun screening.
"There is a genuine issue of whether Dofasco did take such care in all the circumstances of the case as was reasonable to see that persons playing on the diamond in positions where they may be blinded by the sun from line drives could do so in reasonable safety," the judge ruled.
The ruling means the case could now go to trial.
"I'm very happy," said Mr. Black, 53, who runs a trucking business. He said he hasn't played baseball since the accident and has had three operations on his finger.
Lawsuits involving flying baseballs are not uncommon. The mother of a 10-year-old boy in Toronto unsuccessfully sued Exhibition Place in 1985 after her son was hit by a foul ball at a Blue Jays game.
Courts have generally ruled that spectators and players assume some risk of injury during ballgames. But that hasn't deterred Mr. Black, who plans to keep pressing his case against Dofasco.
"I'm going after them," he said. "It's been an ordeal, a six-year rigmarole."
A spokesman for Dofasco declined comment.
Paul Waldie