By Jordan Kobritz
When the lead news story includes a photo of one of your female fans bleeding profusely from a gash on her head, it’s never good for business. So in an effort to counter that negative publicity, Major League Baseball (MLB) issued a statement which said “Fan safety is our foremost goal.” But is it?
Immediately after a fan was struck by a shard from a broken bat during a game at Fenway Park on June 5, they issued a statement, which said, “Fan safety is our foremost goal.” But is it?
Tonya Carpenter was struck by a shard from a broken bat during a game at Fenway Park on June 5. At the time, she was sitting in the second row of seats along the Red Sox’ third base line — beyond the netting that protects fans sitting behind home plate — when a flying piece of wood found her. Although her injuries were serious, she is currently out of the hospital and on the mend. But who knows if the next victim will be as fortunate?
This isn’t the first such ghastly incident and it’s unlikely to be the last. Susan Rhodes was attending a game at Dodger Stadium in 2007 when she was injured by the fragment of a maple bat that slammed into the left side of her face. Rhodes suffered serious facial injuries that required multiple surgeries, including the installation of a titanium plate and screws to reconstruct her jaw. Rhodes sued the Dodgers in 2010 for negligence and premises liability.
The Rhodes incident, along with several others that occurred around the same time, prompted MLB and the Players’ Association to collaborate on a 2008 study to determine the cause of a precipitous rise in broken bats. The culprit turned out to be maple bats which were increasingly being used as a substitute for the traditional ash bats. The study also determined that maple bats are three times more likely to shatter than ash. Shards from a shattered bat can be propelled through the air upwards of 100 feet, far enough to endanger fans sitting in the unprotected box seat sections between home plate and the dugouts, and even further down the lines in some ballparks.
One relatively simple way to eliminate this risk would be to extend the netting that exists behind home plate to the dugouts and beyond, something baseball fans in Japan are familiar with. But as any fan who has recently attended a MLB game knows, that hasn’t happened. The reason won’t surprise you: Money. However, it’s not the cost of the netting – baseball reportedly generated more than $9 billion in revenue last year. As a percentage of league revenue, the purchase and installation of additional netting in Major League ballparks would cost a pittance.
Instead, the concern is fans that prefer to sit close to the action – in order to kibitz with the players and obtain foul balls – will be unwilling to pay the premium prices teams currently charge for seats close to the field if they are required to watch the game through a screen. Although there’s no research to back that up, teams are loathe to take any chance that their revenue will suffer.
Another option, which MLB proposed after the study was completed, would have been to outlaw maple bats. However, the union refused to give its consent to such a ban. In an attempt to place the onus on the owners, the union included the issue of additional netting in the 2007 and 2011 CBA negotiations. MLB turned down the request on both occasions.
Players had become enamored of maple bats, in part because Barry Bonds famously used them to set multiple home run records. Maple bats are harder, denser and have thinner handles than their ash counterparts, leading some players to believe they are better than ash. Never mind that at least one study, conducted by researchers at the University of Massachusetts at Lowell, determined that maple bats provide hitters with no advantage over ash.
So in lieu of additional netting or banning maple bats, MLB instituted new design standards for manufacturers which were intended to minimize the likelihood of splintering. According to MLB, the adjustments have led to a fifty percent reduction in splintered bats since the beginning of the 2009 season. While that qualifies as risk reduction, it’s a long way from risk elimination.
MLB’s trade off — fan safety for increased revenue — is generally supported by the courts based on the longstanding legal concept known as the “Baseball Rule.” One author [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)] suggests that the rule was first adopted at the appellate level over a century ago [in Crane v. Kansas City Baseball & Exhibition Co, 153 S.S. 1076 (Mo. App. 1913)]. While not adopted in every state — among them Idaho and Georgia, both of whom refused to apply the rule in recent cases — the upshot of the rule is that when a fan enters a ballpark, they should expect that bats and balls will be flying into the stands and therefore they assume the risk of injury from such projectiles.
Not surprisingly, in the Rhodes case the Dodgers raised assumption of the risk as a defense. In their pleadings the team’s attorneys stated that the risk of injury from errant balls and flying bats is “simply part of the game.” The suit was ultimately dismissed because Rhodes’ attorney couldn’t overcome that presumption.
It should be noted that the Baseball Rule doesn’t cover every potential risk to fans that enter a ballpark. Exceptions include risks arising from such things as wet and slippery floors and unruly fans. In those cases, liability is determined under the various theories of negligence.
Interestingly, a number of courts have decided that although mascot activities are customary at most Major League and Minor League parks, they are not so common to baseball — e.g., they do not exist uniformly in either professional or amateur levels of the sport — that they rise to the level of a risk that is “inherent to the sport,” like foul balls and flying bats. (for example, see Coomer v. Kansas City Royals Baseball Corporation, 437 SW 3rd 184 [Mo. 2014]). In Coomer, the plaintiff suffered an injury to his eye from an errant hot dog tossed into the stands by the Royals’ mascot, “Slugerrr.”
Most teams go to great lengths to advise fans of the risks inherent in attending a game. They print warnings on ticket backs, make PA announcements before and during games, instruct ushers to verbally warn fans sitting in high risk areas to pay attention at all times, and post signs around the ballpark advising fans to beware of foul balls and flying bats. A sign in Fenway Park not far from where Carpenter was struck read, “Be Alert. Foul Balls and Bats Hurt.” Similar language appeared on signs around Dodger Stadium at the time that Rhodes was injured.
According to Edwin Comber, who created the website foulballz.com which is a treasure trove of information on the history of foul balls, including an exhaustive list of lawsuits that have been filed since 1900, 53,000 foul balls enter the seating areas of ballparks every year. An analysis by Bloomberg News found that 1,750 of those balls injure spectators at Major League games. Fortunately, the Bloomberg study determined that the majority of those injuries are minor in nature, a busted lip here and a bruised limb there. But as the Carpenter and Rhodes cases demonstrate, when bats splinter and pieces fly into the stands, the result can be potentially lethal. In fact, the unthinkable happened on at least one occasion. In 1970, a foul ball off the bat of Manny Mota killed a 14-year old boy in Dodger Stadium.
When I owned the Maine Guides, I was a defendant in an errant bat case. A bat inadvertently slipped out of one of my players’ hands while the team was playing in Rochester, hitting a Red Wings’ fan squarely in the mouth. She sued us, the International League and the Cleveland Indians, our Major League affiliate. After depositions were taken, the case was settled. Although I was never told the exact terms of the settlement and am therefore not bound by any confidentiality agreement, my understanding was a set of season tickets and an autograph was all that was required to close the case.
Without the Baseball Rule, there’s no doubt that MLB teams would take fan protection much more seriously. Despite the league’s statement after Carpenter was injured, if fan safety was their foremost goal, they would have installed additional netting long ago. It’s clear from that omission that their foremost goal is generating revenue.
Jordan Kobritz is a former attorney, CPA, and the owner of two Minor League Baseball teams, the Maine Guides in the Class AAA International League and the Daytona Cubs in the Class A Florida State League. He is a Professor in the Sport Management Department at SUNY Cortland and maintains the blog: http://sportsbeyondthelines.com Jordan can be reached at jordan.kobritz@cortland.edu.
