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Filler v. Rayex Corp.

November 3, 1970

MICHAEL FILLER, BY HIS NEXT FRIEND, BARBARA MITCHELL, AND BARBARA MITCHELL, PLAINTIFFS-APPELLEES,
v.
RAYEX CORPORATION, A NEW YORK CORPORATION, DEFENDANT-APPELLANT



Duffy, Senior Circuit Judge, Cummings and Kerner, Circuit Judges.

Author: Cummings

CUMMINGS, Circuit Judge.

In this diversity action, Michael Filler sued to recover damages for the loss of his right eye, and his mother, Barbara Mitchell, sought to recover her expenses for his hospitalization, artificial eye, and physician's services.

When his injury occurred, Michael Filler was a 16-year-old student at Oak Hill High School, near Marion, Indiana. While he was practicing for a varsity baseball game in the late afternoon of June 10, 1966, fungoes were being lofted to him by a fellow player. Filler lost a fly ball in the sun, although he was wearing flipped-down "baseball sunglasses" manufactured by defendant. After tipping the top of his baseball glove, the ball struck the right side of the sunglasses, shattering the right lens into sharp splinters which pierced his right eye, necessitating its removal nine days later.

Filler's coach was Richard Beck, an experienced ballplayer whose first baseball season at Oak Hill was in 1965. During that season, Beck would not allow his players to use sunglasses, considering them too dangerous. However, before the 1966 season, he read the following advertisement of defendant in Sporting News :

"PLAY BALL!

and Flip for Instant Eye Protection with

RAYEX

Baseball

SUNGLASSES

Professional

FLIP-SPECS"

The advertisement also stated:

"Scientific lenses protect your eyes with a flip from sun and glare anywhere * * * baseball, beach, boat, driving, golfing, fishing, just perfect for Active and ...


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