Baseball? Bat? Doesn’t Matter in Ohio

Jan 13, 2005

In a case of first impression, an Ohio state appeals court has found no distinction between a baseball and broken bat flying into the stands in assessing whether a spectator, who was injured at a Cleveland Indians baseball game, can successfully sue the club for negligence.
Pointing to the doctrine of Primary Assumption of Risk, the appeals court affirmed a lower court’s decision to grant summary judgment to the Cleveland Indians and the Office of the Commissioner of Baseball.
Donna and Ronald Rees were sitting just off third base at a baseball game between the Cleveland Indians and the New York Yankees at Jacobs Field in Cleveland in 1998 when Donna Rees was hit in the face by a broken bat.
Five years later, they sued the New York Yankees Partnership and Rawlings Sporting Goods Company, Inc., alleging negligence and willful and reckless failure to protect spectators from objects such as baseball bats and baseballs from flying into unprotected and uncovered stands and failure to warn spectators of these risks.
While the plaintiffs voluntarily dismissed that claim, they filed another against the Indians and the Office of the Commissioner shortly thereafter. The defendants moved for summary judgment, arguing that the plaintiffs’ claims were barred by the affirmative defense of primary assumption of the risk.
The court granted the motion, and the plaintiffs appealed.
The plaintiffs pointed to several assignments of error. First, it alleged that material facts exist, which preclude summary judgment. While admitting that baseballs flying into the stands are commonplace, they argued that broken bats flying into the stands is “not a common occurrence and, thus, they claim they were unable to appreciate such a risk.”
The appeals court wrote that “Ohio courts have consistently held that assumption of the risk bars recovery by spectators who are injured by baseballs thrown or batted during the normal course of the game. See, Stradtner v. Cincinnati Reds, Inc. (1972), 39 Ohio App.2d 199, 316 N.E.2d 924; Eno, supra. Moreover, other states have determined that baseball games present inherent risks that are well known to the public, and that anyone who attends these events assumes the risk of injury. See, e.g. Alwin v. St. Paul Saints Baseball Club, Inc. (2003), 41 Mass. App. Ct. 643, 672 N.E.2d 568; Friedman v. Houston Sports Ass’n (1987), 731 S.W.2d 572.”
It further pointed to an Ohio Supreme Court opinion — Gentry v. Craycraft, 101 Ohio St. 3d 141, 144, 2004 Ohio 379, 802 N.E.2d 1116 – where the justices noted that “the determinative factor in a defendant’s liability in sports and recreational activity cases is the conduct of the defendant himself, not the participant’s or spectator’s ability or inability to appreciate the inherent dangers of the activity. Id. at 144.”
The high court further wrote “that spectators as well as participants ‘must accept from a participant conduct associated with that sport’ or activity and that where injuries stem from ‘conduct that is a foreseeable, customary part’ of the activity, the defendant ‘cannot be held liable for negligence because no duty is owed to protect the victim from that conduct.’ Id., citing Thompson v. McNeil (1990), 53 Ohio St.3d 102, 104, 559 N.E.2d 705.”
The instant court also pointed to a source that was more national in scope:
“In limiting a defendant’s liability in sports and recreational activities, courts have relied upon primary assumption of the risk and have reasoned that ‘those entirely ignorant of the risks of a sport, still assume the risk (in this ‘primary’ sense) by participating in a sport or simply by attending the game. The law simply deems certain risks as accepted by plaintiff regardless of actual knowledge or consent.’ (Footnotes omitted.) Susan M. Gilles, From Baseball Parks to the Public Arena: Assumption of the Risk in Tort Law and Constitutional Libel Law (2002), 75 Temple L.Rev. 231, 236. Id. at 144.”
While writing that the instant case is one of “first impression,” it did find an instructive case in Michigan, where a state appellate court, in Benejam v. Detroit Tigers (2001), 246 Mich. App. 645, 635 N.W.2d 219, addressed the issues of duty of care and the duty to warn a spectator about projectiles, other than baseballs, that entered the stands.
“For most fans, the everyday reality of attending a baseball game includes voluntarily subjecting oneself to the risk that a ball or bat might leave the field and cause injury,” that court wrote (Id. at 656). As long as protective seating is provided, “the baseball stadium owner has fulfilled its duty and there can be no liability for spectators who are injured by a projectile from the field.” Id. at 652. The Ohio appeals court added that the court “found no analytical difference between baseballs and bats that leave the field of play and cause injury.”
The Ohio court then described the experience that Donna Rees had had in attending baseball games.
“We find that because of her familiarity with the stadium, the game of baseball, and the specific location of her seat, she knew that she was unprotected from objects that might enter the stands,” the court wrote. “Therefore, we find that the defense of primary assumption of the risk is an appropriate defense in this case, thus barring the Reeses’ claims against the Baseball Defendants. The Baseball Defendants owed no duty to the Reeses in this matter.” Donna Rees et al. v. Cleveland Indians Baseball Company, Inc., et al.; Ohio Ct.App.8th; NO. 84183; 11/18/04
Attorneys of Record: (for plaintiffs) Dennis J. Niermann Co., L.P.A., Cleveland, Ohio and Bruce B. Elfvin of Elfvin & Besser, Cleveland, Ohio; David B. Malik, Chesterland, Ohio. (for defendants — Cleveland Indians Baseball Company, Inc., New York Yankees Partnership, and the Office of the Commissioner of Baseball): Thomas R. Wolf, Reminger & Reminger, Cleveland, Ohio.


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