By Ed Edmonds
Kimberlee Slusher’s visit to Great American Ball Park on August 25, 2017, for a game between the Pittsburgh Pirates and Cincinnati Reds, produced a familiar but unfortunate outcome. She was struck by a foul ball on the right side of her face that caused a concussion, serious dental injuries, and a hip sprain. She and her husband, represented by attorney Joseph T. Mordino of Cincinnati law firm Faulkner & Tepe, LLP, filed suit on August 23, 2019, in the Court of Common Pleas of Hamilton County, seeking damages exceeding $25,000. Many points in the couple’s complaint match those raised by plaintiffs in over 100 years of unsuccessful challenges to the “Baseball Rule,” an established bar to plaintiffs attempting to recover from injuries from foul balls and flying bats at a baseball stadium. One point is relatively new — reliance on a September 21, 2017, Reds’ announcement that they would expand the netting protecting fans from balls leaving the playing field from the near end of each dugout to the far end. All major league teams have made this change over the past few years with teams like the Chicago White Sox recently extending netting to the foul poles. This article will consider the Slushers likelihood of success by considering the points raised in the complaint with an analysis of previous Ohio foul ball cases.
Beyond the Cincinnati Reds, the Slushers also sued the Hamilton County Board of Commissioners, Humana, Delta Dental of Michigan, and multiple defendants who “were also responsible for the design, construction, and maintenance of Great American Ball Park and knew or should have known of the risk of injury created by the inadequate netting.”[1] Claims for damages based on injuries to fans due to inadequate netting or a decision to sit in an unprotected seating area have historically been unsuccessful as courts have relied on assumption of risk and contributory negligence to typically dismiss these cases through summary judgment in favor of stadium and team owners.
The complaint does not state where the Slushers were sitting in Great American Ball Park to substantiate that the seats were unprotected or that the Slushers requested seating in a screened section of the stadium. The complaint does raise a failure to warn claim. Courts have typically dismissed these claims in foul ball actions citing the general knowledge of Americans about baseball. Major League Baseball stadiums typically have signs posted throughout the stadium plus announcements on video boards about the “inherent dangers” of the game. Historically, a statement printed on tickets asserting that fans assume the risk of these “inherent dangers” has successfully insulated stadium and team owners from liability. Even the lack of this statement on electronically printed tickets or electronic devices used for admission has not helped injured fans in court.
Ohio Case Law
The Ohio Supreme Court considered Victoria Eno’s jaw injury sustained during batting practice between games of a Reds-New York Giants doubleheader on July 30, 1921, at Redland Field in Cincinnati Baseball Club Co. v. Eno.[2] The court affirmed the decision of the Court of Appeals, Hamilton County, reversing the trial court’s decision entering a directed verdict for the Reds. The basis of the reversal was quite specific to the facts of the case. The batting practice that took place between the games causing the injury was described by the court as between 15 and 25 feet from the grandstands. This appears to be the common practice of the 1920s of playing pepper, an activity that was quickly curtailed by major league rules.
The Ohio Supreme Court stated its acceptance of the general “Baseball Rule” by relying on three non-Ohio cases — Crane v. Kansas City Baseball & Exhibition Company, the first reported appellate level decision regarding a foul ball injury,[3] Wells v. Minneapolis Baseball & Athletic Association,[4] and Kavafian v. Seattle Baseball Club Association.[5] The Eno court determined “that spectators in positions which may be reached by such balls assume the risk thereof. This theory is fortified by the fact that such spectators can watch the ball and can thus usually avoid being struck when a ball is directed toward them. . . . We concur in the soundness of the views expressed in the above cases with regard to injuries incurred by balls thrown or batted during the course of a baseball game.”[6] This statement would seem to cover Kimberlee Slusher’s injury and subsequent Ohio cases cite Eno for this basic statement of the “Baseball Rule” as accepted policy in Ohio. What concerned the court here was the nature of batting practice between games and the directed verdict:
This case, however, presents a situation materially different from those above cited both as to the liability of the defendants and as to the contributory negligence of the plaintiff. The petition herein, in addition to the allegation as to the defendant’s negligent failure to screen the grand stand, alleges that the injury occurred during the intermission and that the defendant was negligent in permitting its players to bat balls from the point from which the ball which caused the injury was batted. No such allegation appears to have been made by the plaintiff in any of the above-cited cases; the claim in each of them being only so far as revealed in the opinions that the management was negligent in not screening the entire grand stand, or at least that part of the stand which the plaintiff occupied. . . . It was a question of fact for the jury whether the owner performed this duty by allowing players to practice so near the grand stand in an intermission when the set games were not being played.[7]
Fourteen years later, the Court of Appeals of Ohio, Hamilton County, the same court where the Slushers filed their lawsuit, decided Ivory v. Cincinnati Baseball Club Co.[8] Here, the plaintiff sought a recovery for an injury when she was hit on the breast by a foul ball — “on analysis of the claim it is seen that two delinquencies are asserted: (1) That the defendant failed to provide any screening or other safeguard or protection for those sitting in the pavilion, and (2) that it failed to warn the plaintiff of the danger by posted notices or otherwise.”[9]
The Ivory court distinguished a Rhode Island hockey case from baseball cases in an important statement that supports the “Baseball Rule” with regards to a failure to warn claim. The court noted that “the average person of ordinary intelligence in this country is so familiar with the game of baseball that it is reasonable to presume that he appreciates the risk of being hit by a pitched or batted ball without being specially warned of such danger. Therefore, a spectator at this nationally known game may ordinarily be held to have assumed such a risk.”[10]
Another relevant Court of Appeals of Ohio case from Hamilton County is the 1972 decision in Stradtner v. Cincinnati Reds.[11] Sharon Stradtner was injured by a foul ball during the May 30, 1970, game at Crosley Field between the Reds and the Montreal Expos. Interestingly, this was one of the last games that the Reds played at Crosley Field; there were only thirteen games played there after this game. The Reds first game at Riverfront Stadium was June 30, 1970, against the Atlanta Braves, and the configuration of the stands at Riverfront Stadium was quite different than that at Crosley Field.
The court affirmed the decision of the Court of Common Pleas of Hamilton County granting summary judgment for the Reds holding that “the record clearly demonstrates that the plaintiff made several attempts to secure screened seating and thus assumed the risk incident to sitting in an unscreened portion of the stands. Plaintiff voluntarily exposed herself to the risks incident to the game.”[12] The court noted that Sharon and her friend purchased tickets from an individual outside of Crosley Park and did not purchase the ticket directly from the Reds at a ticket window. The court did note that the location of the seat was in an unscreened portion of Crosley but that “when plaintiff reached her seat, the game was already in progress. Immediately thereafter, plaintiff and her friend attempted to locate seats in another portion of the stands equipped with screening, but were unsuccessful in their attempt.”[13] Although note addressed in the case, a check of game information at Baseball-Reference.com provides the following information — the game took place on a Saturday afternoon, and the reported attendance was 23,839. Crosley Field’s capacity in 1970 was 30,274. The court quoted the same language from the Eno decision that appears above and cited Ivory before concluding that “the record clearly demonstrates that the plaintiff made several attempts to secure screened seating and thus assumed the risk incident to sitting in an unscreened portion of the stands. Plaintiff voluntarily exposed herself to the risks incident to the game.”[14] So, the fact that Sharon Stradtner convinced the court that she wanted to sit in a protected seat but was unable to do so did not control the ultimate outcome as the court adhered to the basic “Baseball Rule” and assumption of risk doctrine. This ruling is consistent with the vast majority of cases where summary judgment is typically granted to stadium and team owners.
For Kimberlee and David Slusher to win this case against the Reds or the Hamilton County Board of Commissioners, it would seem that they need to convince the court that the Reds decision to increase screening is an admission that they were negligent and breached their duty by not making this change earlier. The recent changes at all Major League stadiums including the Great American Ball Park to increase the number of seats protected by screens is a positive move that will reduce the number of often life-changing injuries that can occur from a foul ball injury. However, to not grant the Reds and Hamilton County summary judgment goes against nearly 100 years of Ohio jurisprudence in similar cases and the great weight of authority from other states.
One other brief point that appears in the complaint is an asserted fact that this writer, a Cincinnati Reds fan for over 60 years, would like to mention. The complaint lists the Reds place of business three times as “100 Nuxall Way.” The short road just west of Great American Ball Park is actually named for Joe Nuxhall, the youngest player to ever appear in a Major League game. Joe Nuxhall pitched for Cincinnati in fourteen years from 1944-1966, and he was a broadcaster for the Reds from 1967-2004. A statue of Nuxhall stands right outside the main entrance to the Great American Ball Park. The correct address is 100 Joe Nuxhall Way.
Ed Edmonds joined the Notre Dame Law School as director of the Kresge Law Library and professor of law in July 2006. Edmonds was the sixth law library director at the Notre Dame Law School. Edmonds is a 1973 graduate of the University of Notre Dame (A.B. — history), and he graduated with an M.L.S. from the University of Maryland and a J.D. from the University of Toledo. He served as the law library director at the Marshall-Wythe School of Law at the College of William & Mary, the Loyola University New Orleans School of Law, and the Schoenecker Law Library at the University of St. Thomas School of Law in Minneapolis, Minnesota. Edmonds teaches Sports Law Seminar, and he has previously taught advanced legal research, antitrust law, criminal law, and entertainment law.
[1]. Complaint, A 1903993, ¶ 12 (Aug. 23, 2019).
[2]. 147 N.E. 86 (Ohio 1925).
[3]. 153 S.W. 1076 (Mo. Ct. App. 1913). For a fascinating discussion of this case and its impact on the creation of the “Baseball Rule,” see J. Gordon Hylton, A Foul Ball in the Courtroom: The Baseball Spectator Injury as a Case of First Impression, 38 Tulsa L. Rev. 485 (2003).
[4]. 142 N.W. 706 (Minn. 1913).
[5]. 177 P. 776 (Wash. 1919); 181 P. 679 (Wash. 1919).
[6]. Cincinnati Baseball Club v. Eno, 147 N.E. 86, 87 (Ohio 1925).
[7]. Id. at 87-88.
[8]. 24 N.E.2d 837 (Ohio Ct. App. 1939).
[9]. Id. at 839.
[10]. Id. at 840.
[11]. 316 N.E.2d 924 (Ohio Ct. App. 1972).
[12]. Id. at 926.
[13]. Id. at 925.
[14]. Id. at 926.
