By Carla Varriale, Esq.*
In an effort to attract spectators (and revenue), ballparks are increasingly producing a family-oriented experience that is packed with marketing and promotional activities. Just as what comprises a day at the ballpark is evolving, the nature of spectator injury cases is changing. Attending a baseball game subjects a spectator to an array of marketing and advertising activities. Courts are increasingly confronting the issue of whether the ballpark owner or operator or the spectator should bear the risk of injury during these “fan-friendly” activities.
Under common law standards, the owners and operators of ballparks are not the insurers of spectators’ safety. In many jurisdictions[1], an owner or operator is simply required to provide protected seats where the danger of being struck by an errant baseball or bat is the greatest, i.e. the seats behind home plate. When an owner or operator does so, it discharges its limited duty of care. A spectator who sits in an unprotected area voluntarily assumes the risks inherent in doing so and consequently extinguishes the duty of care that is owed to him or her.[2] Assumption of risk, a bedrock defense in spectator injury suits, requires evidence that the spectator had an understanding of the activity and the risks presented so that he or she consented to them. Moreover, the risk must be inherent in the activity and the owner and operator cannot enhance the risk. This raises the question of what risks are inherent in the sport and which arise out of other activities at the ballgame.
Personal injury actions brought by souvenir-seeking spectators are often dismissed based on assumption of risk. For example, in Pira v. Sterling Doubleday (2005 N.Y. App. Div. Lexis 2313), an injured spectator’s personal injury action was dismissed because he was struck by a baseball tossed into stands as a souvenir by a pitcher prior to the game. The pitcher admitted that this sort of activity was commonplace and considered “fan-friendly.” Many courts hold that it is immaterial whether the throw occurred in between innings or after the game. See, e.g., Loughran v. The Phillies (2005 Pa. Super Lexis 4093); and Dalton v. Jones (2003 Ga. App Lexis 485).
Distracted or inattentive spectators (due to cavorting mascots, t-shirt tosses or other promotional activities that are arguably not “integral” to the sport) have attacked traditional defenses such as assumption of risk, sometimes with success. In Lowe v. Cal. League of Professional Baseball (1997 Cal. App. Lexis 532), the Court held that the antics of the team’s dinosaur mascot were not essential or integral to the sport and that it was a jury question whether the mascot’s antics increased the risks inherent to the plaintiff. In Pinaki Ray v. Hudson Valley Renegades (2003 N.Y. App. Div. LEXIS 6212), the plaintiff’s “distraction theory” was rejected by the Court, largely because the plaintiff was familiar with the risk of injury associated with sitting in an unprotected area of the ballpark and chose to do so anyway.
A recent case Maisonave v. The Newark Bears Professional Baseball Club, Inc. (2005 N.J. Lexis 1108), a case of first impression in New Jersey, illustrated the tension between the traditional ballgame and the modern entertainment event. In Maisonave, a foul ball struck the plaintiff as he purchased a beverage from a mobile vending cart. Although vending carts were provided in a protected area, the cart Maisonave patronized was not. At the time of the accident, he faced the playing field but did not observe the foul ball before it hit him. The Court crafted a hybrid duty of care. It held that spectators who observed the game from the stands and the areas immediately adjacent to the stands designated as “standing room only” and dedicated solely to viewing the game were subject to the limited duty of care. The danger of errant baseballs is an inherent, expected and desired part of the spectator’s experience. However, in a nod to the commercial activity at the ballpark, it applied the business invitee rule, the standard of care generally applied to business enterprises, to spectators like Maisonave who were injured in other areas of a ballpark. Under the business invitee rule, an owner or operator owes a duty of reasonable care to guard against any dangerous conditions on the premises that he or she either knows about or should have discovered in the exercise of reasonable care.
The Maisonave decision sparked an outcry and swift legislative action. Recognizing the unique position that the sport holds and the potential blow to the minor league teams that provide economic as well as entertainment benefits to the state, New Jersey joined the cadre of states (Colorado and Illinois) that have enacted a baseball liability statute. These baseball liability statutes curtail specators’ lawsuits against baseball owners and operators based upon the spectators’ assumption of inherent risks. The statutes encourage attendance and ensure ticket prices are affordable. However, these statutes may not impede a spectators’ ability to sue in every instance, for example if the spectator is injured due to an activity that is not integral to the game, such as a t-shirt toss.
Although courts often dismiss a spectator’s action if it arises out of an integral part of the sport, the law is evolving with regard to what is integral to the spectator’s experience at the ballpark. How courts (and legislatures) will respond to future lawsuits involving spectators injured by the various activities at the ballpark will be worth watching.
*Carla Varriale, Esq. is a partner at Havkins Rosenfeld Ritzert & Varriale, LLP, where she specializes in the defense of owners and operators of sporting and recreational facilities, including major and minor league baseball teams. She can be reached at: carla.varriale@hrrvlaw.com.
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[1] California, New York, Ohio and Texas have adopted the limited duty rule while states, such as Florida and Arizona apply traditional negligence principles or comparative negligence.
[2] Another defense is the waiver and release set forth on a spectator’s ticket. The risk of injury by errant bats and balls is reflected in the exculpatory language located on the back of a spectator’s ticket. However, depending on its wording, the disclaimer language may not be broad enough to encompass injuries associated with promotional and marketing activities. Furthermore, some jurisdictions will not enforce this language because it is against public policy.
