By John E. Tyrrell and Matthew S. Cioeta, of Ricci Tyrrell Johnson & Grey
In April of 2018, plaintiff/appellant Monica Mayes was attending her son’s collegiate baseball game between visiting Marymount University (for whom her son was pitching) and La Sierra University, when she was struck in the face by a foul ball. Mayes v. La Sierra University, No. E076374 (Cal.App.4th. Jan. 7, 2022). Mayes was sitting in a grassy area behind the third base dugout when she was hit. Id. at 2. The roof of the dugout was eight feet off the ground, and there was no protective net or fencing above the dugout. Id.
Mayes made four allegations in her complaint alleging that La Sierra was negligent in maintaining the premises of the baseball field: (1) La Sierra failed to provide protection of any sort over its dugouts; (2) The university failed to warn spectators of the lack of protection; (3) La Sierra failed to provide a sufficient number of protected seats for spectators; and (4) the school failed to exercise proper crowd control. Id.
On appeal, the California Appellate Court considered whether the trial court erroneously granted La Sierra’s Motion for Summary Judgment when it held that Mayes’s negligence claim was barred by the primary assumption of risk doctrine. Id. In support of its Motion, La Sierra offered the following facts: the university did not sell tickets nor charge admission to the game, and they did not dictate where spectators where they could or could not sit at games. Id. at 5. Mayes had previously attended over 300 of her sons’ baseball games and was familiar with the fact that baseballs frequently flew into spectator areas. Id. Since 2009, there had been no reported spectator injuries caused by baseballs hit out of the playing field at La Sierra. Id.
Additionally, La Sierra asserted that it offered portable bleachers for seating, which were behind home plate and a protective backstop and accessible for any spectator. Id. La Sierra did not ask any of the spectators in the grass along the baselines to take down their tents or umbrellas, nor did it request spectators to sit behind the backstop. Id. The university would only assist with crowd control if the game’s umpire requested it. Id. Furthermore, there was no requirement for a California Pacific Conference member or a National Association of Intercollegiate Athletics (NAIA) institution to put protective netting over the dugouts. Id.
In response, Mayes offered, while there were bleachers behind the backstop at home plate, there was only one seat available and “the bleachers were on a hilly, rocky, and dirt-covered area. The dirt was blowing around and making it ‘potentially dangerous’ to sit in that area.” Id. at 6. Mayes and her husband proceeded to set up their folding chairs in the grass along the third base line, where hundreds of other spectators had done the same, roughly 60 feet from the playing field. Id. at 6-7. There were no posted signs advising the crowd that they had the option to ask La Sierra’s athletic director or the umpire to control the crowd. Id. at 6.
Mayes had been to hundreds of her sons’ baseball games over the previous 15 years, and was not concerned for her safety because she assumed that La Sierra had protective netting over the dugouts like every other field she had been. Id. at 7. She had never seen a spectator struck in the face by a ball. Id.
Mayes offered expert opinion testimony from a ballpark safety and management expert. The expert opined that, while NCAA standards did not apply to this facility (NAIA standards did), the field would have violated NCAA standards for a college baseball field which require 60 feet of unobstructed space between the foul line and the fence around the field; La Sierra had 32 feet of space. Id. at 8.Mayes was able to sit too close to the field which unreasonably increased her chance of injury. Id. That distance, combined with raised dugouts which obstructed spectators’ view and a lack of crowd control, created an unreasonable risk of harm for spectators. Id. To get La Sierra’s field up to the safety standards maintained by the NCAA and Major League Baseball, La Sierra would have had to install protective netting over the dugouts for approximately $8,000-$12,000. Id. at 9.
In granting La Sierra’s Motion for Summary Judgment, the trial court held that the case was a “textbook assumption of the risk case.” Id. at 10. The court opined that being struck by a foul ball is an inherent risk to being a spectator at a baseball game and that the primary assumption of the risk serves as a bar to injuries that are common in baseball. Id. Further, the trial court did not believe that La Sierra increased the risk of harm to Mayes and that she made a choice to sit in an area without protective netting. Id.
In its decision to overturn the trial court’s grant of La Sierra’s Motion for Summary Judgment, the Appellate Court cited case law to support the proposition that many sports and recreational activities are inherently dangerous, and that some efforts to reduce the risk of harm in those activities may significantly alter participation in them. Id. at 13 (citing Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154-56). The primary assumption of risk doctrine is in place to avoid imposing a duty to eliminate risks of harm inherent in those activities, which would theoretically create a chilling effect on participation. Mayes citing Nalwa at p. 1156.
However, that does not absolve sport and event operators of owing any duties to participants. Owners and operators of sports venues have a duty not to increase risk of injury over the risk of injury inherent to the sport. Nalwa, 55 Cal.App.4th at p. 1154. Additionally, owners and operators of these facilities have a duty to take reasonable steps to protect participants’ and spectators’ safety, so long as those steps do not alter the nature of the sport or the activity. See Knight v. Jewett (1992) 3 Cal. 4th 296, 318. Put succinctly, the Court noted, “[a]s a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity without also altering the nature of the activity, the operator is required to do so.” Mayes at p.15, quoting Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th at pp.1299-1300 see also Summer J v. United States Baseball Federation (2020) 45 Cal.App.5th 261 (emphasis in original).
The Court considered Summer J as well as the century-old “Baseball Rule.” In Summer J, the court acknowledged the two duties that owners and operators of sports facilities owe to participants and spectators. The Baseball Rule, which California first applied in 1935, provides that professional baseball teams and their owners are not liable for injuries to spectators by foul balls so long as the teams and owners took minimal steps to protect the spectators from harm. Summer J 45 Cal.App.5th at p.265. In practice, this means “that spectators assume the risk of injury from foul balls if they chose to sit in unscreened seats, even if no screened seats are available.” Mayes No. E076374 at p. 24. An additional factor to consider, the Summer J court noted, is that recent developments to baseball stadiums and baseball games, such as spectators being closer to the field, velocity of pitched and hit balls, and more distractions at games such as free Wi-Fi, all increase the risk of harm to spectators at games. Id. at 274 citing Grow & Flagel, The Faulty Law and Economics of the “Baseball Rule” (2018) 60 Wm. & Mary L. Rev. 59, 85-98.
In in its decision to overturn the trial court, the Mayes Court reasoned that the baseball rule “is out of step with California’s primary assumption of risk doctrine.” Mayes No. E076374 at p. 24 citing Grotheer 14 Cal.App.5th at pp. 1300-01. The Court held that the trial court, similar to the baseball rule in general, failed to consider the second part of La Sierra’s duty: take reasonable steps to increase safety and minimize the risk of harm to spectators if it could be done without materially altering the game for players or spectators. Mayes No. E076374 at 23-24. The Court held there were four triable issues of fact to determine whether La Sierra breached its duty of care by: (1) failing to install protective netting over the dugouts; (2) failing to warn spectators of the lack of netting over the dugouts; (3) failing to provide a sufficient number of screened seats; and (4) failing to exercise proper crowd control. Id. at 25.
This opinion highlights the need for sports and recreational facility owners to frequently evaluate their premises for potential safety hazards for participants and spectators alike. Likewise, these owners and operators should monitor trends within their industries for advances to safety materials that could be reasonably introduced without altering the nature of the activity.
John E. Tyrrell is the Managing Member at Ricci Tyrrell Johnson & Grey and has decades of experience in sports and events liability litigation and risk management. Matthew S. Cioeta is an associate at Ricci Tyrrell.
