Jim Porter: Take me out to the ball game … with a helmet
January 28, 2016
Two years ago we wrote a Law Review about the "Baseball Rule" — the legal standard that protects teams from being sued by fans injured at the ballfield — or on the court or ice rink.
Recall in the flying hotdog case a fan at a Kansas City Royals game was hit in the eye when the team's lion mascot Sluggerr threw a foil-wrapped hotdog into the stands which struck a fan in the eye requiring multiple surgeries. As I wrote then, "let's be frank, is there anything he can do?" I never tire of stupid jokes.
The general Baseball Rule protects teams and park owners whose spectators are hit with foul balls. The legal doctrine is "Assumption of the Risk:" fans assume the risk of getting hit by a foul ball as inherent in attending ball games. Baseball team owners essentially have no duty to their spectators sitting in the stands.
Baseball parks have signs warning of foul balls, informing patrons of seats available in protected areas behind screening.
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A New Ball Game
The Baseball Rule is now under attack. Last July a class-action lawsuit was filed in California by an Oakland Athletics season ticket-holder who is asking a federal judge to protect fans from flying bats and balls — by ordering Major League Baseball (MLB) to extend the safety netting at its ballparks the entire length of the foul lines.
The Complaint in Gayle Payne v. the Office of the Commissioner of Baseball cites some interesting statistics: In 2013, MLB had the highest season attendance of any sports league in the world generating approximately $9,000,000,000 in yearly revenue; almost all ball fields have no netting past the dugouts; 1,750 spectators are injured each year by wayward baseballs, more often than a batter is hit by a pitch; in a typical MLB game, 35-40 batted balls fly into the stands; injuries along the first and third baselines in the so-called "Danger Zone" are most serious.
Attached to the federal lawsuit is an extensive list of fan injuries from foul balls and flying bats or pieces of bats.
Distractions at the Park
The lawsuit makes the case that to keep the game lively and fans interested, teams now have many side events which supposedly distract fans from keeping their eye on the ball, such as giant screens, fan-participation contests, mascots wandering around the stadium and sometimes throwing or shooting items like T-shirts and flying franks and second screen Wi-Fi on the backs of seats.
And because such distractions increase the risk of injury to the fans, MLB should be liable and not allowed to rely on the Assumption of Risk Doctrine.
Fans don't assume the risk of being hit by a baseball when they have been distracted by the stadium owner or team owner.
Nets to Protect Fans
A hundred years ago, ballparks didn't have nets behind the batter's box. The area behind the home plate was called the "slaughter pen."
Protective screening behind home plate apparently began in the late 1800s. Netting is now behind the backstop in all major league parks.
According to the lawsuit, netting material has changed from hemp woven screens to screens made with thin lightweight polymers which are much thinner, more durable and longer lasting than old fashioned netting.
Ballparks generally end their netting at first and third base or sooner. No fields that I've ever been to have netting all the way down the right and left field.
The lawsuit makes the case that seats behind home plate in the netted section are substantially more expensive, for example $230 in Oakland's Coliseum, versus an average of about $40 along the first or third baselines.
According to one study cited in the case, a foul ball takes a mere 1.07 seconds to travel 141 feet, less time than it takes to yell "foul." Or "fore." Or is that another sport?
The lawsuit is seeking class-action status for MLB season ticket holders and a subclass of season ticket holders in California located in the Danger Zone. We will see where it goes, whether it is summarily dismissed or gets traction.
We'll keep you posted.
Jim Porter is an attorney with Porter Simon, licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. He may be reached at email@example.com or http://www.portersimon.com.
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