By Ed Edmonds
On March 24, 2017, a jury in the Cuyahoga County Common Pleas Court ruled in favor of the Cleveland Indians in a lawsuit brought by Keith Rawlins over injuries he sustained when he was hit by a line drive foul ball in the ninth inning of the July 20, 2012, game at Progressive Field against the Baltimore Orioles. The focus of the litigation involved whether of not ushers at the park increased Rawlins potential for injury by asking him, his fifteen-year-old daughter Jenna, and other fans to leave section 171 before the end of the game based on Cleveland Fire Department’s requirements that ten sections in the lower section of the stadium along the left field line be closed to fans for a post-game fireworks show. Cory Shaffer, writing for cleveland.com, noted that the trial included four days of testimony and one day of deliberations.
History of the Litigation
The lawsuit was initially filed in November 2013 against the Indians, Lawrence Dolan (the primary owner of the team), the Cleveland Indians Club, and Major League Baseball Enterprises, Inc. One month later Rawlins agreed to dismiss the Club, Dolan, and MLB Enterprises. In November 2014 the Indians filed a request for summary judgment based on primary assumption of the risk and Rawlins countered with his request for partial summary judgment to dismiss the Indians’ assumption of the risk defense. Common Pleas Court judge Daniel Gaul granted the Indians’ motion based on Ohio precedent that generally aligns with longstanding case law that prevents lawsuits for injuries due to foul balls, thrown balls that enter the stands, or flying bats. In November 2015 the Eighth District Court of Appeals reversed the case and remanded it for trial. The Ohio Supreme Court refused an appeal of that decision on May 4, 2016, paving the way for the trial.
The Incident and the Resulting Injury
Keith Rawlins was injured when struck in the face by a line drive foul traveling around 95 mph. Rawlins was walking up the aisle after leaving his seat in section 171 with his daughter during the ninth inning of the Orioles-Indians game. The Orioles were winning 10-2 after taking a 7-1 lead in the top of the third inning. Rawlins had turned his back to the field, but, when he heard the crack of the bat connecting with a ball he turned to look at the field and was struck on the left side of his face breaking numerous bones and causing Rawlins to lose the sight in his left eye. At the trial Rawlins’ doctors stated that it might be necessary to schedule future surgeries including the possibility of the insertion of a prosthetic eye. His lawyers also argued that the injuries left Rawlins unable to continue his work as a tool and die machinist in Rochester, New York.
Court of Appeals Decision
Critical to understanding the significance of this case is the analysis provided by the Court of Appeals in clarifying the reach of “The Baseball Rule” in Ohio. As noted by the court, “Ohio recognizes three different variations of the common law affirmative defense of assumption of risk: express, primary, and secondary/implied.” In 1925 in Cincinnati Baseball Club Co. v. Eno., Ohio helped to establish what became the so-called “Baseball Rule” limiting significantly any liability for foul ball injuries. The court provided a succinct statement of the rule by summarizing significant decisions from Minnesota, Missouri, and Washington that the court considered to “embody all of the authority in the country upon the precise question:”
“It is common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be thrown or batted outside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof. . . . It is the general rule, also, so far as screening the grand stand is concerned, that due care on the part of the management does not require all of the spectators to be screened in; that the management performs it duty toward the spectators when it provides screened seats in the grand stand and gives spectators the opportunity of occupying them.”
However, the facts of the case, similar to Rawlins, went beyond the typical game situation involved in the three state cases cited by the Eno court. Plaintiff Victoria Eno was injured during the “intermission” between games of a July 30, 1921, doubleheader between the Reds and the Giants at Redland Field. Although not noted by the court, the two teams split lopsided victories with the Reds taking the first game, 8-1, and the Giants reversing fortunes, 12-1, in game two. The court declared that “the specific question, therefore, is whether the spectator is guilty of contributory negligence, as a matter of law, in sitting in an unscreened grand stand when practice batting is going on in a part of the field near to himself while the game is not in progress.” In deciding to allow Victoria Eno to proceed to trial the court noted the distinguishing fact that multiple balls were in play during batting practice, thus, making it more difficult for a fan to watch all of the action simultaneously. The court’s conclusion was that “there was at least a scintilla of evidence in the record tending to show that the management had not performed this duty. This being the case, and it being a question of fact whether the plaintiff herself was guilty of contributory negligence, it was error for the court to direct a verdict in favor of the defendant.”
The Rawlins court next discussed Harting v. Dayton Dragons Baseball Club. Roxane Harting, a 40-year-old native of Centerville, Ohio, was injured during a Midwest League game between the Wisconsin Timber Rattlers and the Dayton Dragons at Dayton, Ohio’s Fifth Third Field on June 16, 2004. A major added feature was the appearance of the Famous San Diego Chicken to entertain the fans. Harting’s seat was in the front row behind the dugout on the third base side, an area with heightened vulnerability because of its unscreened closeness to home plate. Roxane Harting claimed that following the antics of the Chicken needed to be considered by the court, however, the Ohio court of appeals in a different district from Rawlins decided that “after thoroughly reviewing the record, we hold that the doctrine of primary assumption of the risk is applicable to the facts of this case. Thus, it acts as a complete bar to any recovery by Harting.” The Rawlins court cited the fact that Harting remained responsible for her own protection regardless of the presence of the Chicken.
The Rawlins court reversed the trial court’s decision because they felt that a genuine issue of material fact existed for a jury to determine whether or not the Rawlins were asked by ushers to leave their seats and, if so, did it create an attendant circumstance that would make implied assumption of risk the applicable defense instead of primary assumption of the risk. So, here the case was allowed to go to trial opening a possibility that Ohio courts would return to a closer reading of Eno instead of the absolute bar to recovery accepted by the Harting court.
The Jury Verdict
As detailed by Cory Shafer in his cleveland.com report of the jury’s verdict, the jury weighed the conflicting testimony of witnesses at the game regarding whether or not ushers actually asked fans to leave the section before the end of the game. Some fans apparently were leaving at the same time as Rawlins and his daughter, but that is not unusual near the end of a game with a lopsided score against the home team. Shafer stated in his story that “the foreman stood up and told Rawlins that they all felt terribly for what happened,” but they must have concluded that the evidence weighed stronger for the Indians than for Rawlins.
The Legal Legacy
The case does represent a shift away from granting summary judgment in foul ball cases if the situation involves any factual assertion beyond ordinary play. In this sense, the Rawlins Ohio appellate court differed in its handling of the matter from the Harting court’s decision nine years earlier. The facts of Harting, where the injured fan was sitting in the first row behind the dugout, is important because screening that area of ballparks is the focus of current decisions at both major league and minor league stadiums. Although screening this area is not mandated by Commissioner Rob Manfred’s December 2015 recommendations that focused on screening between the home plate sides of each dugout, a number of teams have expanded their screening to the far side of each dugout. If Fifth Third Field in Dayton had such screening in 2007, Roxane Harting would likely have been spared a significant injury.
Resources:
Cincinnati Baseball Co. v. Eno, 147 N.E. 86 (Ohio 1925).
Harting v. Dayton Dragons Baseball Club, L.L.C., 870 N.E.2d 766 (Ct. App. Ohio 2007).
Rawlins v. Cleveland Indians Baseball Co., Inc., 48 N.E.3d 136 (Ct. App. Ohio 2015).
Corey Shafer, “Jury Sides with Cleveland Indians in Suit Brought by Fan Blinded by Foul Ball,” cleveland.com (Mar. 26, 2017).
