Attorneys for a spectator, who was injured by a foul ball at a minor league baseball game, have petitioned the Indiana Supreme Court for hearing after an Indiana Appeals Court reversed a lower court’s finding for the spectator, and, in effect, introduced a limited duty rule for the state.
The appeals court’s decision, summarized here, rested primarily on the Assumption of Risk Doctrine, who holds that spectators assume the risk of injury when they go to a game, and that as long as the facility or team provides the requisite protection and does not increase the risk of being hit by a foul ball, then they are shielded from litigation.
On May 23, 2009, Juanita DeJesus attended a South Shore Railcats minor league professional baseball game in Gary, Indiana with her fiancé and two friends. The court noted that DeJesus was a baseball fan, and particularly a fan of the Railcats, having attended numerous Railcats games prior to that date.
She was aware, noted the court, that foul balls could strike spectators and that that the defendant provided warnings to spectators of such risks.
One of those warnings was the exculpatory language on the back of her ticket:
“WARNING. By using this ticket and entering the Stadium, the ticket holder assumes all risk and danger incidental to the game of Baseball, whether such risks occur prior to, during, or subsequent to the actual playing of the game, including specifically, (but not limited to) the danger of being injured by thrown bats and thrown or batted balls. The holder further specifically agrees that SouthShore Baseball, LLC … [is] not liable for any injuries from such causes and hereby waives and releases the same from any such causes.”
DeJesus also arrived at the stadium early enough that day to hear the following warning read by the stadium announcer:
“The Gary SouthShore RailCats management would like to remind you of the risks inherent to the game of baseball. Thrown bats and batted or thrown balls may enter the seating area at a high rate of speed and, as a result, can be very dangerous. Please be alert at all times and watch out for the youngsters in attendance tonight. The Gary SouthShore RailCats and the City of Gary shall not be liable for injuries or loss of personal property or equipment.”
Shortly after the beginning of the game, the second batter “hit a pop-up foul ball. DeJesus saw the batter make contact with the ball and saw the ball pop up in the air. DeJesus noticed that the people sitting around her were looking up in the air, so she looked up in the air as well. DeJesus heard someone say, ‘Look out,’ and while DeJesus was looking for the ball, it hit her in the face. As a result of being hit by the foul ball, DeJesus suffered serious injuries, including several fractured bones in her face and blindness in her left eye,” wrote the court in citing the complaint.
DeJesus sued South Shore Baseball, LLC on November 24, 2009, alleging that the defendant was liable for her injuries under a theory of premises liability. On March 2, 2011, DeJesus filed her first amended complaint, which restated her claim against South Shore Baseball. It also added a claim against Northwest Sports Venture, LLC, in which she claimed that Northwest Sports Venture “was liable for her injuries because it negligently failed to provide protective screening continuously from first to third base.” The defendants filed a motion for summary judgment in which they asserted that, as a matter of law, they could not be held liable for DeJesus’s injuries. The trial court denied their motion. The defendants appealed, leading to the instant opinion.
One of the key elements was whether the defendants created “an unreasonable risk of harm to such invitees,” a tenet of a successful premises liability claim.
In agreeing with the defendants, the panel relied upon Lorino v. New Orleans Baseball & Amusement Co., 16 LA. APP. 95, 133 So. 408 (La. Ct. App. 1931); Erickson v. Lexington Baseball Club, 233 N.C. 627, 65 S.E.2d 140, 141 (N.C. 1951); McNiel v. Fort Worth Baseball Club, 268 S.W.2d 244, 246 (Tex. Civ. App. 1954); Rudnick v. Golden West Broadcasters, 156 Cal. App. 3d 793, 202 Cal. Rptr. 900, 905 (Cal. Ct. App. 1984; Benejam v. Detroit Tigers, Inc., 246 Mich. App. 645, 635 N.W.2d 219, 222 (Mich. Ct. App. 2001), as well as many others.
“(T)he issue is not what risk the plaintiff subjectively incurred but whether the defendants objectively should have expected that the plaintiff would be oblivious to the danger or fail to protect herself from it,” held the panel.
Further, “the undisputed evidence demonstrates that DeJesus was a baseball fan who was aware of the risk that a foul ball would be hit into the stands. DeJesus acknowledged that she saw the warnings about the potential for balls to enter that stands that were posted throughout the stadium, that she was aware of the similar warning printed on the back of her ticket for admission, and that she heard the verbal warning about the potential for balls to enter the stands that was read by the stadium announcer prior to the start of the game. Further, the record is devoid of any evidence that would create a genuine issue of fact as to whether the defendants should have expected that patrons, including DeJesus, would not recognize or discover the risk of injury associated with foul balls entering the stands. Accordingly, we find no genuine issue of fact to contravene the objectively reasonable expectation by the defendants that persons attending a baseball game would realize the risk of being struck by a foul ball and take appropriate precautions.”
Next, the panel turned to DeJesus’ claim that the defendants “should be held liable for her injuries under a general theory of negligence because they failed to install protective screening continuously from first to third base. In support of this claim, DeJesus designated the affidavit of Alan R. Caskey, Ph.D., in which Caskey opined that he believed that there should be protective screening continuously from first to third base. DeJesus, however, did not designate any evidence suggesting that any of the generally accepted standards for construction and operation of a baseball stadium would impose a duty on the defendants to erect protective screening continuously from first to third base.”
The panel noted extensive case law from its “sister jurisdictions” that supports “the limited duty rule. … (O)ur research has uncovered no jurisdiction that would impose the duty suggested by DeJesus.” The defendants “cannot be held liable for DeJesus’s injuries so long as they met their limited duty of providing protective screening in front of an adequate number of seats behind home plate.” The panel found that the defendants met this threshold “and as a result, could not be held liable for her injuries.”
Arguments Being Made on Appeal
As for the petition to the high court, DeJesus’ attorney, Walter Alvarez, reportedly argued that the appeals court ignored evidence showing that the protective netting was defective, and included a gap used to throw T-shirts and other promotional materials to fans in premium seating. DeJesus testified at her deposition the ball that struck her had flown through the gap.
Alvarez also claimed that DeJesus was issued a ticket with a seat assignment, for which there could be no refunds, exchanges or transfers. This would mean, he argued, that she could not have opted for safer seating.
Finally, Alvarez maintained that his client’s petition should be considered since the appeals court adopted a new “limited duty rule” for Indiana.
“Personally, I feel on behalf of any client, a lawyer should use what is available to protect the interest of that individual, which in turn may relate to society as a whole,” he told the media.
South Shore Baseball, LLC, d/b/a Gary South Shore Railcats, and Northwest Sports Venture, LLC v. Juanita DeJesus; Ct. App. Ind.; No. 45A03-1205-CT-222, 982 N.E.2d 1076; 2013 Ind. App. LEXIS 69; 2/15/13
Attorneys of Record: (for appellant) Nicholas J. Parolisi, JR., Mitchell H. Frazen, James R. Branit, Litchfield Cavo LLP, Chicago, Illinois. (for appellee) Duke T. Escue, Walter J. Alvarez, David A. Wilson, Walter J. Alvarez, P.C., Crown Point, Indiana.
View the opinion.
