In Mr. Felder’s case, he was injured while taking batting practice at Physiotherapy’s facility in Tempe. Ken Felder had been drafted by the Milwaukee Brewers in 1992, in 1996 he injured his elbow. He had surgery and missed the rest of the 1997 season. While he was receiving rehabilitation treatment at Physiotherapy, he would throw baseballs in a batting cage that was designed to rehabilitate pitcher’s arms. It was not designed specifically as a true batting cage.
In 1998 while Mr. Felder was taking batting practice, he hit a ball that ricocheted off a concrete lip in the batter’s box, and the ball bounced back up at him, striking him in the left eye. His eye bled and it was ultimately determined that he fractured his orbital bone, ruptured his cornea, and suffered damage to his retina. At trial, the jury initially awarded him eight million dollars in damage and reduced that amount by 25% based on Mr. Felder’s contributory negligence. The defendants appealed and the case came back for a retrial. On retrial he was award seven million dollars and the jury reduced that amount by 30% based on Mr. Felder’s contributory negligence.
Physiotherapy again appealed, claiming that using an expert witness to speculate about Mr. Felder’s future income and future contracts was inappropriate. The Court disagreed and held, when determining what constitutes “reasonable certainty” as to the amount of damages in a person injury action, the key consideration must be what is “reasonable” under the circumstances of that particular case. The Court went on to state, “No one can say with complete certainty whether Felder would, or would not, have been promoted to the Major Leagues or how long he may have played there. We can say, however, as the jury did, that his eye injury prevented him from having that chance.”
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