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Don,
In 2002's rule changes, #46 according to my notes, the defensive player is permitted to use the orange base. When the defense uses the orange base 'cuz the throw is coming from foul territory, the batter-runner may run inside the foul line (out of the running lane) and use the white base. This is the only place that I have actually seen it written that it's OK for the defense to use either base, so it's a good clarification (I have heard from enough folks that I'd have allowed it in past years) . If we say that due to a bad throw, either base is OK for the defense, we have essentially doubled the size of first base for the defense and potentially taken away the normal result of an errant throw.
So, in your example Don, I'd have to say the batter-runner is safe because the fielder was off the bag.
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Steve M
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