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Introduction to special issue on modelling Popov v. Hayashi

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Notes

  1. It has been suggested that the ball might sell for something in excess of $1,000,000.

  2. The Giants’ website contains a page which shows where each of Bonds’ home runs landed in 2001. This page was introduced into evidence and is part of the record. It shows that most of the balls are clustered in the arcade area.

  3. Ted Kobayashi, a defense expert, testified that there was insufficient reaction time for the crowd to descend on Mr. Popov. This opinion is completely unconvincing. It is premised on the assumption that people did not begin to react until the ball hit Mr. Popov’s glove. A number of witnesses testified that they began reacting while the ball was in the air. People rushed to the area where they thought the ball would land. If people were unable to anticipate where a ball will land while it is still in the air, no outfielder would ever catch a ball unless it was hit directly to him or her. Moreover, the tape itself shows people descending on Mr. Popov even as he was attempting to catch the ball.

  4. Because the probability of truth does not favor the testimony of any of these witnesses in other particulars, their entire testimony is rejected. BAJI 2.22 This finding does not apply to Mr. Hayashi.

  5. Plaintiff argues that the Keppel tape shows Mr. Hayashi biting the leg of Brian Shepard. The tape does not support such a conclusion. The testimony which suggests that a bite occurred is equally unconvincing. In addition, there is insufficient evidence that Mr. Hayashi assaulted or attempted to take the ball away from Mr. Popov.

  6. Defense counsel has attempted to characterize this encounter as one in which Mr. Popov congratulates Mr. Hayashi for getting the ball and offers him a high five. This is an argument that only a true advocate could embrace.

  7. Testimony was also received about events which occurred after baseball officials escorted Mr. Hayashi to a secure area. This evidence was admitted to allow counsel to explore the possibility that Major League Baseball retained constructive possession of the ball after it landed in the stands and later gifted it to Mr. Hayashi. Defense counsel has properly abandoned this theory. There is no evidence to support it.

  8. See generally, Witkin, Summary of California Law, Ninth Edition, section 610. See also, Fresno Air Service v. Wood (1965) 232 Cal.App.2d 801, 806.

  9. Jordan v. Talbot (1961) 55 Cal.2d 597, 610.

  10. Edwards v. Jenkins (1932) 214 Cal 713, 720, Witkin, supra, at section 622.

  11. Henderson v. Security National Bank (1977) 72 Cal.App.3d 764, 771; Witkin, supra at section 624.

  12. Witkin, supra, at section 611.

  13. Zaslow v. Kroenert (1946) 29 Cal.2d 541, 551.

  14. Metropolitan Life Insurance Company v. San Francisco Bank (1943) 58 Cal.App.2d 528, 534; Witkin, supra, at section 617.

  15. See generally, Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?; Cardozo Law Review, May 2002, Paul Finkelman, (Chapman Distinguished Professor of Law).

  16. See generally, Past and Future: The Temporal Dimension in the Law of Property, (1986) 64:667;. Washington U.L. Quarterly, Professor Richard A. Epstein (James Parker Hall Professor of Law, University of Chicago; Irwin v. Phillips (1855) 5 Cal. 140; Potter v. Knowles (1855) 5 Cal. 87.

  17. They are Professor Brian E. Gray, University of California, Hastings College of the Law; Professor Roger Bernhardt, Golden Gate University School of Law; Professor Paul Finkelman, The Chapman Distinguished Professor of Law, The University of Tulsa School of Law; and Professor Jan Stiglitz, California Western School of Law.

    The discussion was held during an official session of the court convened at The University of California, Hastings College of the Law. The session was attended by a number of students and professors including one first year property law class which used this case as vehicle to understand the law of possession.

  18. Brown, The Law on Personal Property (Callaghan and Company, 3rd Edition, 1975) section 2.6, page 19.

  19. Kramer v. United States 408 F2d 837, 840 (CA 8th 1969); State v. Strutt (1967) 236 A2d 357, 359.

  20. Professor Bernhardt is the author of the textbook Property, Cases and Statutes, published by the West Group as well as the co-author of Real Property in a Nutshell with Professor Ann M. Burkhart.

  21. Real Property in a Nutshell, Roger Bernhardt and Ann M. Burkhart, chapter one, page 3.

  22. Brown, The Law on Personal Property (Callaghan and Company, 3rd Edition, 1975) section 2.6, page 21.

  23. Literally.

  24. This definition is hereinafter referred to as Gray’s Rule.

  25. Pierson v. Post 3 Caines R. (N.Y. 1805); Young v. Hitchens 6 Q.B. 606 (1844); State v. Shaw (1902) 67 Ohio St. 157.

  26. Professor Finkelman is the author of the definitive law review article on the central issue in this case, Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?; Cardozo Law Review, May 2002, Paul Finkelman, (Chapman Distinguished Professor of Law).

  27. The degree of control necessary to establish possession varies from circumstance to circumstance. “The law . . . does not always require that one who discovers lost or abandoned property must actually have it in hand before he is vested with a legally protected interest. The law protects not only the title acquired by one who finds lost or abandoned property but also the right of the person who discovers such property, and is actively and ably engaged in reducing it to possession, to complete this process without interference from another. The courts have recognized that in order to acquire a legally cognizable interest in lost or abandoned property a finder need not always have manual possession of the thing. Rather, a finder may be protected by taking such constructive possession of the property as its nature and situation permit.” Treasure Salvors Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel (1981)640 F.2d 560, 571 (emphasis added).

  28. Brady v. S.S. African Queen 179 F. Supp. 321 (E.D.Va, 1960); Eads v. Brazelton (1861) 22 Ark. 499; Treasure Salvors Inc. id. at 571.

  29. Liesner v. Wanie (1914) 145 N.W. 374; Ghen v. Rich 8 F. 159 (D. Mass. 1881); Pierson v. Post 3 Caines R. (N.Y. 1805); Young v. Hitchens 6 Q.B. 606 (1844); State v. Shaw (1902) 67 Ohio St. 157. See also Herbert Hovenkamp and Sheldon Kurtz, The Law of Property (5th ed. West Group 2001) at page 2.

  30. Indian River Recovery Company v. The China 645 F.Supp. 141, 144 (D. Del. 1986); Treasure Salvors Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel (1981)640 F.2d 560; Rickard v. Pringle.

  31. Swift v. Gifford 23 F. Cas. 558 (D. Mass. 1872).

  32. See note 27.

  33. Brady v. S.S. African Queen 179 F. Supp. 321, 324 (E.D.Va, 1960).

  34. Professor Gray has suggested that the way to deal with this problem is to demand that Mr. Popov sue the people who assaulted him. This suggestion is unworkable for a number of reasons. First, it was an attack by a large group of people. It is impossible to separate out the people who were acting unlawfully from the people who were involuntarily pulled into the mix. Second, in order to prove damages related to the loss of the ball, Mr. Popov would have to prove that but for the actions of the crowd he would have achieved possession of the ball. As noted earlier, this is impossible.

  35. There are a number of ways courts can enforce the rule of law. Major League Baseball, as well as each individual team has a duty to provide security against foreseeable violence in the stands. The failure to provide that security, or worse, the tacit acceptance of some level of violence, will inevitably lead to lawsuits against the teams and the parent organization.

  36. The court is indebted to Professor Jan Stiglitz of California Western School of Law for his valuable insights and suggestions on this issue.

  37. See note 14.

  38. Equitable Division and the Law of Finders, (1983) Fordham Law Review, Professor R. H. Helmholz, University of Chicago School of Law. This article built on a student comment published in 1939. Lost, Mislaid and Abandoned Property (1939) 8 Fordham Law Review 222.

  39. Helmholz at fn. 14.

  40. id. at 315.

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    Katie Atkinson

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Atkinson, K. Introduction to special issue on modelling Popov v. Hayashi. Artif Intell Law 20, 1–14 (2012). https://doi.org/10.1007/s10506-012-9122-y

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