Law Review: Fan hit by foul ball — any liability? |

Law Review: Fan hit by foul ball — any liability?

Jim Porter
Law Review
Jim Porter

United States Supreme Court Chief Justice Benjamin Cardozo first adopted what has become known as the “Baseball Rule,” essentially that spectators attending baseball games assume the risk of injury.


Chief Justice Cardozo applied the common law doctrine volenti non fit injuria (“to a willing person, injury is not done”).

He went on to write: “One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball.”

The Baseball Rule has generally given stadium operators a limited duty to provide a screened area behind home plate. The general concept is foul balls represent an inherent risk to spectators attending baseball games, a risk they assume.


Just recently Baseball Commissioner Rob Manfred announced that all 30 major league teams will expand the protective netting in their stadiums “substantially beyond the end of the dugout” for the 2020 season and that 7 or 8 stadiums will run netting all the way to the foul poles.

Of course, that is if we have a 2020 season.


In February, a case called Sumner v. U.S. Baseball Federation, the Second Appellate District Court of Los Angeles seemed to change the law of the Baseball Rule. The Court allowed Sumner to move her case forward after she was hit in the eye with a foul ball. The Court determined the injury could have been prevented with netting further down the foul ball line than is currently provided at stadiums.

The Court of Appeal rejected the park owner’s argument that it had no duty of any sort to protect spectators from foul balls.

As the Court wrote, installing protective netting down the first and third baselines at least to the dugouts would certainly increase safety and minimize risk to fans sitting in those areas. Would it alter the nature of the game?

The Court reiterated that 30 major league teams and many minor league teams will be expanding protective netting beyond the end of the dugouts for the upcoming (non) 2020 season.


Given that concession, the Court of Appeal allowed Sumner to take her case to a jury — trying to prove the stadium operator could possibly have provided protection without changing the game. Sumner’s case may still be pending, but stadium operators are getting the message that protective netting needs to be expanded. I predict the netting will be installed all the way to the foul poles — I have been predicting this change for a few years.

Yes, spectacular first- and third-base plays catching foul balls falling into the stands may no longer be possible, but the tradeoff is more safety for spectators.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at or

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