Barry Bonds Baseball Brouhaha Poses Perfect Law School Property Exam Question

Barry Bonds has had some unprecedented accomplishments on the baseball field the past two seasons, but his greatest achievement is setting into motion a flurry of events that now constitute the greatest property exam question ever.

Bonds hit his 73rd home run of the 2001 season on October 7, 2001. The ball originally landed in Alex Popov's glove, but a mob descended upon Popov before he could maintain exclusive dominion and control over the ball. The ball skittered away from the human morass, and Patrick Hayashi picked it up off the ground and was heralded as the possessor of the ball. Popov sued Hayashi in California superior court, and the judge handed down his Solomonesque ruling on December 18, 2002.

The judge's ruling focuses primarily upon the concept of possession in property law. Did Popov have possession of the ball prior to being attacked so that Hayashi, an innocent party, may be held to have committed conversion by refusing to give it back to Popov?

In defining possession of a home run baseball, The judge adopted what he called "Gray's Rule" named after a University of California law professor who promulgated it based on tradition property principles: "A person who catches a baseball in 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 the loose ball and secure it becomes the possessor."

The judge found that, as a matter of fact, Popov could not prove by a preponderance of the evidence that he ever had possession of the ball under this definition. Without establishing possession, Popov could not prove conversion. However, the judge added that it is also true that Popov did not have the chance to acquire such possession because of the mob's attack. The judge refused to allow the mob's unlawful actions to decide the case and stated that Popov should have been allowed the opportunity to catch the ball.

Since he was not, the judge held that Popov had a "pre-possessory" interest in the property. The judge ruled that while Hayashi acquired unequivocal dominion and control over the ball, that control was still subject to Popov's pre-possessory interest.

Accordingly, the judge held that the two men had an equal claim to the ball. The judge then relied on Keron v. Cashman, 33 A. 1055 (N.J. 1896). In that case, five boys took turns beating each other with a stuffed old sock which ultimately burst, spilling out $775 in cash. The Keron court found that none of the boys had the intent to possess the sock but each had control of it at some time. Under the circumstances, that court held that the boys had equal claims to the money and equitably divided it into equal shares.

The judge in the Bonds case stated that with regard to Popov and Hayashi, both men had the intent to possess the ball at the time they had physical contact with it. The judge ruled that the principle of equitable division outlined in Keron should apply as well and ordered the ball to be sold and the proceeds divided equally between the parties.

A status conference hearing is set for March 24 to monitor whether the parties will be able to settle the matter or have agreed on the process by which to sell the ball and divide the proceeds.