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Sunday, October 28, 2018

Personal Injury and the Baseball Rule

This mantra of the soon-to-be World Champion Boston Red Sox's postseason is to "do damage."  Unfortunately, there are times when the damage done is to the fans in the seats cheering on their favorite team.  Injuries by foul balls at baseball games are rare, but can be very serious when they do happen.  So what are an individual's rights when they are struck and injured by a foul ball at a baseball game?

The longstanding so-called "Baseball Rule" has been adopted by the Court in a majority of jurisdictions.  This Rule limits a landowner's duty of care that is owed to spectators to providing reasonable protection in the form of screening behind home plate.  Over the past couple of years, this screening has extending beyond the home plate area, to cover both teams dugouts.  Fans who choose to view the game in an unscreened area have been found to have assumed the "open and obvious" risk of being struck by balls entering the stands during the ordinary course of play.  This Rule categorizing fans who attend baseball games and events in unscreened areas as having "assumed the risk," effectively precludes a potential lawsuit for every ball entering the stands and hitting a fan.  The logic being that everyone is aware that foul balls can enter the stands and therefore attending a baseball game or event means the individual has consented to the possible danger. 

That does not mean that some spectators have not still pursued legal action when injured by foul balls. 

In 2013, Shirley Martinez was hit in the face by a home run hit during batting practice prior to a Houston Astros game at Minute Maid Park.  Ms. Martinez was sitting in an unscreened area in the right field bleachers.  The Astros (like the majority of professional and non-professional baseball stadiums) do not provide screening in the outfield bleacher sections.  At the time of the injury, Ms. Martinez was climbing the stairs with her child and stroller to take the stroller to a designated storage area.  With her focus not on the batting practice, Ms. Martinez turned when hearing someone yell a warning that a fly ball was coming to her, shielded her child with her arms, and was struck in the fall by the baseball.  Ms. Martinez sustained an orbital fracture and corneal laceration.  Ms. Martinez sued the Houston Astros for negligence, but the trial court granted summary judgment in favor of the Houston Astros, thus dismissing Ms. Martinez's lawsuit.  Ms. Martinez appealed and asked the Appeals Court to abolish the "Baseball Rule."  The Appeals Court denied this request.

In 2014, Stephanie Taubin was sitting in the EMC Club at Fenway Park and was struck by a foul ball hit by David "Big Papi" Ortiz.  The glass protection in this area was removed during renovations.  While the Boston Red Sox were not dismissed from this lawsuit, a Suffolk Superior Court jury ruled that the Red Sox had not acted negligently and found in favor of the defendant.

In 2017, John Loos filed a negligence lawsuit against the Chicago Cubs (amongst other parties, including Major League Baseball), after being hit and blinded in his left eye by a foul ball at Wrigley Field while sitting in the outfield section along the first base line.  Mr. Loos argued that the Chicago Cubs "willfully and wantonly" failed to erect safety netting despite knowing of the injury risk to fans.  The Chicago Cubs were also dismissed as a defendant under the "Baseball Rule."     

For now the "Baseball Rule" seems to be still be the law of the land (though there are some Courts and jurisdictions that do not follow up it exactly).  Lawsuits from injured fans and spectators have generally not been successful, though these injuries have caused the major league stadiums to expand the use of protected netting in all ballparks. 

As a general rule, it is important for all fans to be paying attention when the ball is in play, whether it be during the game or not.  I myself was once hit by a foul ball at a Pawtucket Red Sox game on a Cub Scout trip way back when.  I was looking at the program and keeping score in the scorebook that I was given when all of a sudden the book was ripped and my knee was in a lot of pain.  Had I been watching the game, I probably could have avoided (or at least prepared for the injury). 


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