Hello, and welcome to Legal Lad's Quick and Dirty Tips for a More Lawful Life.

But first, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

On August 7, 2007, San Francisco Giants player Barry Bonds hit his 756th home run, giving him the record for the most home runs hit by a single player in his career. And while baseball fans debate whether Bonds truly owns this record in light of his alleged performance-enhancing drug use, legal scholars also debate the question of who legally owns the ball. Dave wrote:

Recently I read an article about Barry Bonds' 756 home run being caught and then fought over. From the article, it sounded like after the ball bounced a bit, one man had it, and lay on it while several people tried to take it from him. What does the law have to say about this situation? Is it some form of robbery or theft to try to take the ball from the man once he has it? If someone had succeeded in taking the ball from him, would the man have any legal recourse?

Well Dave, the short answer is that this area of the law is completely unsettled. Several legal scholars have devoted entire law review articles setting forth their theories on who should own these milestone baseballs and why. But, few courts have addressed the issue. Indeed, the only case that I could find to deal directly with this issue involves Bonds also.

In 2001, Bonds broke the record for the most home runs hit in a single season when he hit his 73d home run in San Francisco. The outfield arcade was packed with hopeful fans intent on catching this milestone ball. When Bonds hit his record-breaking home run, many people in the stands tried to catch it. One man, Alex Popov, stopped the ball in his glove, but did not quite catch it. Members of the crowd attacked Popov and he dropped the ball. Patrick Hiyashi was standing nearby and picked up the ball from the ground and placed it in his pocket. Hiyashi left the stadium with the ball.

Popov sued, claiming that he was the person to catch the ball, and that the crowd that attacked him, and Hiyashi, effectively stole the ball. The case wound up in San Francisco Superior Court before the Honorable Kevin McCarthy. Judge McCarthy watched a videotape of the incident, heard testimony from several witnesses, and heard legal theories from four property law professors.

The first question before the court was who owned the ball as it soared through the air and into the waiting crowd? Did Major League Baseball? They sponsored the event, purchased the ball for the game, and possessed the ball before the game. Did the San Francisco Giants own the ball? The game was played on the property of the team, and the team employed Bonds, who made the $12 ball worth possibly millions. Did Barry Bonds? He made the ball valuable by hitting so many homeruns. Did fans have a contractual right to the ball by virtue of buying their tickets?

Judge McCarthy did not need to decide this question because the parties agreed on a solution. Major League Baseball owned the ball before it was hit. But, once the ball was hit, the ball became abandoned property because Major League Baseball never intended to get the ball back. Under settled principles of law, the first person to take possession of intentionally abandoned property becomes the full owner.

The next question for the court to decide was whether Popov took possession of the ball when he almost caught the ball. The court had to examine several old cases that involved other pieces of property that have the ability to move, such as wild animals, oil, and shipwrecks. After examining these cases, the court adopted a rule proposed by Professor David Gray of the University of California, Hastings College of the Law. Under that rule:

“A person who catches a baseball that enters the stands is its owner. A ball is caught if the person has achieved complete control of the ball at the point in time that the momentum of the ball and the momentum of the fan while attempting to catch the ball ceases. A baseball, which is dislodged by incidental contact with an inanimate object or another person, before momentum has ceased, is not possessed. Incidental contact with another person is contact that is not intended by the other person. The first person to pick up a loose ball and secure it becomes its possessor.”

Applying the rule, the court determined that Hiyashi was the person who took legal possession of the ball. But the court recognized that Popov would have caught the ball and taken full possession if the crowd around him had not attacked; that is, the ball was not dislodged by incidental contact, but by brute force. The court also recognized that Hiyashi had not been one of the attackers; he did not cause Popov to lose the ball. Last, the court wanted to make sure it did not encourage fans to attack someone who is catching a ball. To accommodate these policies, the court created the following rule:

“Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion.”

In the end, the ball was sold for about $450,000 at auction, and Popov and Hiyashi split the proceeds. This case has been both praised as a practical and fair solution, and criticized for mashing together too many legal theories in an unwieldy manner.

If a court were to follow this case, it would decide that 22-year-old Matt Murphy owns the ball because he was the fan that took full possession of the ball. There have been no reports that I could find that anyone else held the ball and had any kind of pre-possessory interest like Popov had. To answer Dave's question, yes, if someone had taken the ball from Murphy, he would have a valid claim against that person. This is because, once he took possession of the ball, the abandoned property, he took full ownership of the ball. If someone takes something that you own, you can sue to get it back.

But, no court is bound to follow this case because it comes from a trial court; trial court rulings are generally not binding on other trial courts. So, Major League Baseball, Barry Bonds, or another fan could theoretically sue for the ball. We shall see . . .

Thank you for listening to Legal Lad's Quick and Dirty Tips for a More Lawful Life. You can send questions and comments to legal@quickanddirtytips.com or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

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