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If a baseball fan cries foul, do the courts listen?

TIMOTHY L. EPSTEIN
Law Bulletin columnist

Published: November 16, 2015

“In these games hard balls are thrown and batted with great swiftness … they are liable to be muffed or batted or thrown outside the lines of the diamond, and visitors standing in position that may be reached by such balls have voluntarily placed themselves there with knowledge of the situation, and may be held to assume the risk.” Lorino v. New Orleans Baseball & Amusement Co., Inc., 16 La. App. 95, 96-97 (La. App. Ct. 1931)).

Where personal injuries and sports mix, we find ourselves in the world of sports torts. Sports torts can involve what some may call actual substantive law unique to sports as well as simple spots of intersection between sports and other aspects of the law.

Injuries in sports do not just occur to those who play on the field, though, but can also be suffered by those enjoying the game as fans.

As we just came to the end of another baseball season, there may be some fans licking their wounds from foul balls along with the subpar play of their teams. As such, it is a good time to explore the possibilities for those injured fans becoming spectator plaintiffs.

While there are certainly occasions in which a spectator will execute an express waiver in favor of the entity or individuals promoting the sporting event, at their most basic, sports fan waivers or limitations of venue liability are found in small print on the back of an entrance ticket or are court- or legislature-created limitations on liability for venues.

The policy behind such law is the desire to encourage promoters to put on athletic contests for the fans’ enjoyment and ease the burden on sports venue owners from a litigious spectating public.

While not many baseball fans are aware that they are releasing some level of liability of a venue owner upon entrance into a stadium or field to watch a sporting contest, fans should understand that baseline ordinary negligence will not often be the standard should a fan file a lawsuit against a sports venue owner for injuries sustained as a spectator from objects leaving the field of play.

The most common standard across the country is known as the “baseball rule” or the “limited duty rule,” which holds that a baseball stadium owner’s liability for spectator injuries relative to balls and bats leaving the field of play shall be limited as long as reasonable protection is offered to fans behind home plate in the form of some netting or screen that would not allow a ball or bat to penetrate said barrier.

Additionally, an owner should provide a sufficient number of protected seats to satisfy ordinary consumer demand. So long as a sufficient number of protected seats are available, those patrons who willingly choose to sit in a section not protected by the aforementioned net or screen behind home plate assume the risk of being struck at no liability attributable to the venue owner.

Absent a distraction attributable to the owner, the venue owners have a limited duty here even when the patron is in the aisles. Martinez v. Houston McLane Co., 2013 Tex. App. Lexis 2420 (Tex. App. Mar. 12, 2013). For a lawsuit involving an injured fan at Comerica Park in Detroit, the Michigan Court of Appeals held that “there is no duty to warn spectators at a baseball game of the well-known possibility that a bat or ball might leave the field.” Benejam v. Detroit Tigers Inc., 635 N.W.2d 219 (Mich. 2001).

The baseball rule will hold regardless of the spectator’s experience or knowledge of the game of baseball. Schentzel v. Philadelphia National League Club, 173 Pa. Super. 179 (Pa. Super. Ct. 1953); Brown v. San Francisco Ball Club Inc., 99 Cal.App.2d 484 (Cal. Ct. App. 1950).

Further, venue owners may enjoy relief from liability to a spectator during batting practice and pregame warmups. (See Lorino, 16 La. App. at 95, no duty during batting practice absent willful and wanton conduct, but see Jones v. Three Rivers Management Corp., 380 A.2d 387 (Pa. Super. Ct. 1977), venue owner found liable for injuries to patron in interior walkway during batting practice; see Pira v. Sterling Equities Inc., 790 N.Y.S.2d 551 (N.Y. App. Div. 2005), no venue liability for ‘pregame’ warmup casual toss to the crowd).

Finally, even when a mascot is present in the sight line of a fan who is struck by a ball, no liability will follow the owner. Harting v. Dayton Dragons Professional Baseball Club LLC, 171 Ohio App. 3d 319 (Ohio Ct. App. 2007).

In response to a couple of cases that placed liability on a venue owner, the General Assembly here in Illinois passed the “Baseball Facility Liability Act” (745 ILCS 38/1 et seq.), which holds the basics of the “baseball rule” relative to home plate netting, but also adds that a venue owner, other than for creating or not fixing a defective net behind home plate that results in injury to a patron, shall only be liable for injuries to a spectator from a ball or bat leaving the field if there was willful and wanton conduct on the part of the owner.

Similar case law and statutes exist throughout the country with some objectors like Idaho. See Rountree v. Boise Baseball LLC, 2013 Ida. LEXIS 55 (Idaho Feb. 22, 2013) holding that baseball venues owe the same duty of care to patrons as other business owners, and it is up to the legislature to lessen the duty of care owed.

While cases like Rountree give prospective spectator plaintiffs some hope for possible recovery, the majority rule is one of limited duty owed by the team to the fans for projectiles leaving the field of play.

So, while many fans clamor to be part of the action at baseball games, understand that once you leave the protection of the home plate net, so also likely goes the safety net of insurance and indemnity from the team.

Timothy Liam Epstein is a partner at Duggan, Bertsch LLC and chair of the firm’s litigation practice group and a member of the firm’s sports and entertainment/festival/event practice groups. He also serves as an adjunct professor at Loyola University Chicago School of Law, teaching courses in sports law. His sports law practice is all-encompassing, but focuses on the litigation needs of players, coaches, teams and schools. He can be reached at tepstein@dugganbertsch.com.


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