Ignorance is no defense when a person attends a baseball game, is injured by an errant foul ball, and subsequently sues the home team for negligence.
That was the conclusion of a Massachusetts appeals court, which affirmed a lower court’s ruling that a woman who attended a Boston Red Sox game assumed the risk of injury when she took her seat up the first base line. Central to the plaintiff’s claim was that the plaintiff knew very little about the game and that the Red Sox’s warnings were insufficient.
The incident occurred in the fall of 1998, when the plaintiff and three companions attended a Boston Red Sox baseball game at Fenway Park. Arriving at the game in the fifth inning, the plaintiff took her seat in an unscreened area in the upper box section on the first base line. Within ten minutes of arriving at the park, the plaintiff was struck by a foul ball that caused severe and permanent injuries to her face.
The plaintiff sued the Boston Red Sox in Superior Court, arguing that the Red Sox were negligent for failing to adequately warn of the dangers of being hit by a foul ball. The Red Sox subsequently moved for summary judgment, a motion the judge granted and the plaintiff appealed.
The appeals court began its review of the case by noting a spreadsheet produced by the Red Sox that showed the annual number of patrons hit by foul balls at Fenway Park at around 45 a year. It also quoted from the plaintiff’s expert, a professor, who had concluded that fans have very little time to react, 1.07 seconds, to a foul ball. The court’s conclusion was that such incidents are common and there’s not a lot a fan can do about it.
At the core of the plaintiff’s claim was her position that she was markedly ignorant of the game of baseball. She noted that she had only been to one other game in her life, when she was 8 years old. “Before the evening of her injury, she understood a foul ball to be one that simply rolled off to the side after being hit,” wrote the appeals court.
Unlike other negligence claims involving baseball teams and foul balls, the plaintiff did not pin her argument to the contention that the team should have extended the protective netting beyond just the home plate area or that the design of the park was faulty.
“She claims only that she was entitled to an adequate warning of the dangers of sitting in an unprotected location so that she could have made an informed choice whether to remain there,” noted the court.
While she acknowledged the existence of a disclaimer printed on her admission ticket, she argued that the print was extremely small.
She also argued that the fact that the team’s decision to installed signage along the first base line, which read “BE ALERT. FOUL BALLS AND BATS HURT,” after her injury reinforced the notion that such signage was “feasible and necessary” before her accident.
The appeals court turned to case law for guidance, the most relevant case being Shaw v. Boston Am. League Baseball Co., 325 Mass. 419 (1950), where the Supreme Judicial Court held, as a matter of law, that a baseball club was not liable to a spectator who was injured by a foul ball.
The difference, however, in Shaw and the instant case is that assumption of risk was abolished as an affirmative defense in 1974 and that the plaintiff in the instant case “must be taken as ignorant of the danger of being hit by a foul ball,” as opposed to Shaw, who was an admitted “fan.”
However, the appeals court concluded that the following rationale would apply to both cases:
“Although an owner or possessor of land owes to all persons lawfully on the premises a common law duty of reasonable care to maintain the property in a reasonably safe condition and ‘to warn visitors of any unreasonable dangers of which the landowner is aware or reasonably should be aware,’ O’Sullivan v. Shaw, 431 Mass. 201, 204 (2000), quoting from Davis v. Westwood Group, supra at 743, the duty to warn does not extend to dangers that would be obvious to persons of average intelligence. O’Sullivan v. Shaw.”
An ignorant fan could be construed as a person of average intelligence, according to the appeals court.
“Even someone of limited personal experience with the sport of baseball reasonably may be assumed to know that a central feature of the game is that batters will forcefully hit balls that may go astray from their intended direction,” wrote the court. “We therefore hold that the defendant had no duty to warn the plaintiff of the obvious danger of a foul ball being hit into the stands.”
The court extended its own reading to other such cases going forward, noting a “consensus” among reported decisions “that baseball stadium owners should not be held responsible for injuries to spectators that result from balls leaving the field during play — at least if adequate safety screening has been provided to protect areas of the stadium in the vicinity of home plate, where the danger is thought to be most acute.”
Carla Varriale, a partner at the defense law firm of Orenstein & Brown, told Sports Litigation Alert that she took “great comfort in the Massachusetts ruling” for a couple of reasons. First, she pointed out that the court concluded that the risk should have been “obvious” to someone of “average intelligence.”
She also noted that Massachusetts had done away with “assumption of risk,” which is “a powerful defense in our arsenal” in New York and other states.
Costa v. The Boston Red Sox Baseball Club, No. 02-P-1433, App. Ct. Mass., 6/9/04
Attorneys of Record: (for plaintiff) James R. Burke. (for defendant) Douglas L. Fox.
