By Gil Fried
Over the past couple years, we have covered a rule covering a specific baseball safety issue several times. Several courts in western states have either failed to adopt the rule when it was a first blush analysis or have weakened the rule’s application. However, a recent California decision has the potential to significantly change the rule. The decision is critical because California is often a harbinger for a legal tide that might sweep across the country.
The case is Summer v. United States Baseball Federation (20 Cal. Daily Op. Serv 1263, filed Feb. 18, 2020). The appellate court examined the question of whether the provision of adequate protective netting in a perceived zone of danger behind home plate (or for field-level seating along the first- and third-base lines between home plate and the dugouts) increased safety and minimized the risk of injury to spectators without altering the nature of baseball as it is played today in professional and college ballparks. This court concluded it would.
Lee Summer sued the City of Long Beach, California State University-Long Beach, and US Baseball (who sponsored the game) for injuries she received when she was hit by a foul ball. The basic claim was negligence and premises liability. Summer claimed that the limited netting at the stadium gave her a false sense of security that watching games beyond the netting was safe. In a second amended complaint the plaintiff claimed the stadium configuration brought spectators in the front row closer to the field of play than the 70 feet recommended for college stadiums by the National Collegiate Athletic Association (NCAA) rules. The defense, relying on the baseball rule, also claimed that the risk is open and obvious. The lower courts held for US Baseball and their demurrer to the complaint.
California’s primary assumption of risk doctrine provides that the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate and the defendant generally owes no duty to protect the plaintiff from those risks. “[A] court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.” The court observed that the California Supreme Court had repeatedly emphasized the question of duty in the recreational context depends not only on the nature of the activity but also on the “role of the defendant whose conduct is at issue in a given case.” Those who maintain athletic facilities have a duty not to increase the inherent risk. Thus, a stadium owner may have a duty to take reasonable measures to protect spectators from a carelessly thrown bat as long as they can minimize the risk without altering the nature of the sport.
Citing prior California Supreme Court cases, the court concluded “[w]hile the operator or organizer of a recreational activity has no duty to decrease risks inherent to the sport. it does have a duty to reasonably minimize extrinsic risks so as not to unreasonably expose participants to an increased risk of harm”. Another way to summarize the court’s position is that inherent risks within a sport are still covered by primary assumption of risk to protect customers from those specific risks. But the primary assumption of risk doctrine does not absolve operators of any obligation to protect the safety of their customers. Thus, if a facility can take measures that increase safety and minimize the risk of injuries, without altering the nature of the activity, the facility operator is required to take those measures.
The court then applied this legal analysis to the facts. The court highlighted how the stadium was modified to increase box seats down the first and third base line that were closer to the field. The court also examined how the stadium created unnecessary distractions such as large advertisements on the outfield wall and stronger Wi-Fi access to encourage patrons to use their mobile devises during a game. The court also examined past arguments against increasing netting that would impact game play, such as players chasing after balls in foul territory and being impeded by the net. However, citing Major League Baseball’s suggestions to expand netting at ballparks, the court concluded that such changes show that netting really does not impact the game of baseball. Thus, the nature of the sport is not impacted by increasing safety netting for fans. Furthermore, a number of experienced baseball players provided analysis that extending the netting would minimize the inherent risk without fundamentally changing the game created, at least for pleading purposes, an enforceable duty. The court concluded that the plaintiff should be permitted to file an amended pleading alleging that US Baseball had a duty to ensure there was adequate protective netting and unreasonably breached that duty by failing to provide netting at least from home plate to the dugouts. The plaintiff would need to support these allegations by evaluating the extent of the existing stadium netting, the proximity of unprotected seats to the playing field, and the history of previous injuries in that specific seating area.
These last three points raised by the court will determine how stadiums need to respond to such cases. They also represent how stadiums should examine what areas need to be protected. The law in California has been clarified and stadiums have to take appropriate safety steps beyond the home plate backstop as long as there is no impact on the game. If a facility tries to claim in other cases the netting would impact the game, this decision and the decisions of MLB to advocate for more netting (and MLB teams actually increasing that netting) would be used to attack any such defense. Further, the baseball rule requires stadiums to protect the most dangerous parts of the ballpark. This decision will require teams to prove they are protecting the most dangerous parts with their existing netting. How can that be proven? The answer is by showing how much netting is in place, how close the seating area is to the field, and how many people were injured in given areas. This raises some issues for stadiums. One is that MLB field diagrams highlight a requirement of 60 feet between the baseline and home plate to the backstop. However, a number of stadium/teams have obtained exemptions from MLB to move seating closer and in some stadiums the distance is actually closer to 50 feet. Maybe MLB needs to modify what is the required distance and use data to help prove the necessary distance rather than using what some might call an arbitrary number. It could be considered arbitrary if MLB does not really enforce that distance- which could be examined as a possible suggestion rather than a required distance for safety purposes.
Second, teams have to undertake a better job of recording where foul balls are landing on the first and third base lines. While stadium incident management systems (IMS) might help track injuries entered into the system, there are numerous foul balls that could have created serious injuries but resulted in no injuries because no fans were sitting in that area, luck, or other reasons. Courts will be requesting more detailed information that is easy to collect, and more accurate, to identify the most dangerous areas that would need additional protection.
While this decision is from California, courts throughout the United States will likely apply this well-reasoned and researched ruling.
