James Donovan ("J.D.") Cuthbert, J. D., one year removed from law school and practicing at the St. Louis firm Gibson, Smith, and McGwire, P.L.L.C., is on the "fast-track" for partnership.Cuthbert was a prized hire for Gibson, Smith, and McGwire; with an imposing physical presence (6 feet, two inches tall and 210 pounds,) a disarming smile, and enough ambition for an entire courtroom of first-year attorneys, the "grapevine" surmises that Cuthbert will be offered a partnership in four years, far sooner than the standard wait period of seven years.

Summer has arrived, and the Gibson firm has made plans to field its best-ever recreational softball team.The firm's "legal nine" competes annually in the Bar Association of Greater St. Louis Softball League.Attorneys participating in the league compete just as vigorously on the field as they do in the courtroom, and law firms strive to earn the annual "bragging rights" associated with a league championship.

A senior partner at Gibson, Smith and McGwire, Tom Hackman, has recruited Cuthbert to play first base for the team.J.D. was at first reluctant to play (after all, the practice of law is a "jealous mistress,") but he eventually agrees, realizing that impressing the partnership does not occur exclusively in the courtroom.

The Gibson team excels, powering its way to the bar association softball championship game against an impressive foe, The Micah A. Mayo Personal Injury Law Firm.In the bottom of the 9thinning of a tied championship game, with no one on base and two outs, "The Mighty Cuthbert" comes to bat.He swings for the fence and drives the softball to within five feet of a home run.As he reaches third base, Hackman (the team's third-base coach) signals Cuthbert to stay, but he heads for home instead; glory is only ninety feet away, an "inside-the-park" homerun would only add to his legend, and extra innings come with no guarantees.

Playing catcher for the Mayo firm is Albert Flaherty, an imposing figure himself; at 6 feet, five inches tall and 230 pounds, Flaherty is determined to use his height, weight, and mass to save the game for his employer.

Cuthbert and Flaherty collide, a cloud of dust surrounds home plate, and a sickening "crack" and scream are heard by all in attendance.Cuthbert's right leg is severely broken, and he is out.Reasonable minds might differ in terms of which hurts worse.The Gibson firm loses after 10 innings, and the biggest question back at the office is "What would have happened if Cuthbert had stayed on third?" Cuthbert is hospitalized; his medical bills and days out of work are accumulating.

Is Gibson, Smith and McGwire, P.L.L.C. legally liable for Cuthbert's injury? Is the firm ethically liable for Cuthbert's injury?