## Facts

- The Thibodaux Fireman’s Fair was operated by the Thibodaux Fire Department as a fundraising event.
- One attraction was a concession game in which participants threw a baseball at objects or targets to win prizes.
- The throwing area was not roped off or otherwise separated from nearby bystanders.
- Nine-year-old Anthony Pitre stood near the game and was struck in the head by a participant’s wind-up as the participant prepared to throw the baseball.
- Anthony died from the injuries.
- Anthony’s parents, Merville and Florence Pitre, sued Employers Liability Assurance Corporation, Ltd. and Maryland Casualty Company, the fair’s insurers, seeking damages in negligence.
- At trial, George Henderson testified that the main danger typically associated with this type of game is ricocheting baseballs after a throw, not contact with a thrower’s wind-up.
- Henderson also testified that he had never seen the throwing area roped off to protect bystanders from throwers and that insurance-company safety engineers routinely approved operating this type of stand without ropes or barriers.
- Henderson further testified that, when he operated this type of game, he did not permit very young children to play because they generally could not physically knock down the targets with a baseball.
- The trial court found for Anthony’s parents, and the insurers appealed.

## Issues

1. Whether the fair operator breached its duty of reasonable care by failing to rope off, guard, or warn so as to prevent bystanders (including children) from being struck by a participant’s throwing motion at the baseball-throw concession.
2. Whether evidence of customary practice and safety-approval practices supported a finding that the operator’s setup and supervision of the game met the standard of reasonable care.
3. Whether the trial court erred in imposing liability on the insurers for Anthony’s death based on the layout and operation of the concession.

## Decision

- The appellate court reversed the judgment for the plaintiffs and rejected liability against the insurers.
- The court concluded that the operator’s failure to place ropes or barriers around the throwers did not amount to negligence under the circumstances.
- The court relied in part on testimony about common operation of similar stands and the absence of a recognized practice of roping off throwers to prevent this kind of contact injury.

## Legal Principles

- Negligence requires a duty to protect against risks that are both foreseeable and unreasonable in light of the activity, the burden of precautions, and the likelihood and severity of harm.
- A premises or event operator is not an insurer of safety; the law requires reasonable precautions, not elimination of every possible accident.
- Evidence of customary practice and safety-approval practices may be considered when deciding whether conduct met the standard of reasonable care, even though custom is not automatically controlling.
- In assessing breach, courts evaluate the activity as operated at the time of the accident and whether the complained-of risk was one that reasonable operators would address with additional safeguards.

## Conclusion

Pitre held that the insurers for the Thibodaux Fireman’s Fair were not liable for the death of a nine-year-old boy struck by a participant’s wind-up at a baseball-throw concession because, on the record presented (including testimony about customary operation and safety approvals), the absence of ropes or barriers around throwers was not shown to be an unreasonable failure of reasonable care.


Pitre v. Employers Liability Assurance Corporation, 234 So. 2d 847 (1970)