By Carla Varriale-Barker, of Segal McCambridge
“The reports of my death are greatly exaggerated.”- Mark Twain
Although a Georgia court recently overturned the dismissal of a spectator injury lawsuit, reports of the demise of the “Baseball Rule” are premature. The recent decision in Norris v. Atlanta Braves, Inc. focused on the procedural versus the substantive issues in the case. The decision rationalized that, at the pleading stage and without the benefit of discovery, there is still a possibility that the plaintiffs could introduce some evidence to warrant some of the relief they seek. In a concurring opinion, Judge Gobeil, expressed a “wait and see” approach as to how the plaintiffs’ case would fair at the summary judgment or the directed verdict stage.
Last month, the Court of Appeals of Georgia reinstated a personal injury action brought by Myra and Scott Norris against the Atlanta Braves, Inc. (the “Braves”) baseball team and a Braves player, Jorge Soler. The facts of the case are not unusual: Mayra Norris was a spectator who was struck and injured by a baseball that entered the stands during a World Series baseball game at Truist Park (the” Stadium”). The plaintiffs alleged that they sat in Section 109 in the right field corner of the stadium. Their pleading did not state whether the plaintiffs sat in a protected area, and this was a significant issue to the court. Before the game resumed (another significant issue to the court) in the fifth inning, Soler allegedly threw a baseball “overhand, with great force, speed, and intensity” in Mayra’s “immediate direction.” The plaintiffs claimed the game was not in play at the time Soler threw the baseball and that his throw was neither incidental to the game, nor a warm-up between the players. Mayra sustained an orbital fracture, among other things, and her husband asserted a derivative action for the loss of his wife’s consortium.
The plaintiffs sued the Braves and Soler. They asserted premises liability and vicarious liability against the Braves, negligence loss of consortium, and punitive damages against both defendants and attorney’s fees. The defendants answered the complaint and then jointly filed a motion to dismiss, contending that the plaintiffs’ complaint failed to state a cause of action. The defendants contended that the “Baseball Rule” barred their claim since spectators assume the risk of being injured at a baseball game.
The trial court had previously granted the motion to dismiss for failure to state a claim based on the “Baseball Rule,” which applies to all risks inherent to an unprotected seat at a baseball stadium. The trial court analyzed Soler’s thrown baseball to souvenir baseballs being thrown into the stands and noted it is an inherent risk assumed by spectators.
However, the Court of Appeals concluded that the trial court erred by determining that the “Baseball Rule” barred the plaintiffs’ claim at the motion to dismiss stage. At the outset, the court noted that the standard on a motion to dismiss is a demanding one. The trial court was required to give deference to the allegations in the plaintiffs’ complaint and resolve all factual disputes in favor of the plaintiffs. The Court of Appeals noted that the trial court had not converted the defendants’ motion to a motion for summary judgment.
Specifically, the Court of Appeals noted that, at this early stage, evidence could be adduced that will sustain a grant of relief to the plaintiffs. The Court of Appeals also noted that plaintiffs alleged the elements of a premises liability claim against the Braves and that its employee, Soler, allegedly threw the baseball with “a great deal of speed and force” in Mayra’s direction in the scope of his employment with the Braves, thereby causing substantial injuries. The plaintiffs’ rudimentary pleading was, therefore, sufficient to survive a motion to dismiss.
The Court of Appeals declined to apply the “Baseball Rule” to the fact of this case and highlighted the absence of authority from the Supreme Court of Georgia regarding the application of the “Baseball Rule.” The Court of Appeals analyzed the” Baseball Rule” – a specialized duty of care upon the owners and operators of a baseball stadium as a specific application of the assumption of the risk doctrine concerning risks inherent in baseball games. In Georgia, this is an affirmative defense. The Court of Appeals observed that in this case, the plaintiffs did not admit all of the elements of the assumption of the risk defense, and they did not assert whether they were in an unprotected portion of the stadium at the time of the alleged accident. The plaintiffs did not admit, for example, that they could be subject to baseballs thrown in Mayra’s immediate direction when the game was not in play or that they voluntarily exposed themselves to this risk. None of the elements of the assumption of the risk affirmative defense were admitted in the complaint or disclosed on the face of the complaint. Consequently, the pleadings did not conclusively establish the defendants’ assumption of the risk defense to authorize the dismissal of the Plaintiffs’ pleading.
The Court of Appeals reasoned that the facts of this case were distinguishable from other Georgia precedent. Unlike a warm-up, which is a necessary part of the baseball game, thereby warranting application of the Baseball Rule, Mayra was struck during the fifth inning when Soler allegedly tossed a baseball into the stands. It was not clear whether this was a “souvenir” or an errant baseball, either the courts’ analysis was stunted because the courts reviewed a motion to dismiss on the pleadings versus a summary judgment on a full record after the benefit of discovery. Therefore, the defendants’ motion to dismiss for failure to state a cause of faction should have been denied.
In a concurring opinion, Judge Gobeil noted that she did not agree with the entirety of the majority’s analysis. However, she agreed that at the early stage of the litigation, the plaintiffs’ complaint properly survived the motion to dismiss but she stated that expressed “no opinion “as to the merits of the case upon a summary judgment motion or at the directed verdict stage. She concluded that any issues that the plaintiffs may have in ultimately proving their case is not a basis to dismiss their case at the pleading stage. Her skepticism may be echoed, in the event the Georgia Supreme Court ultimately rules on the case, or as the case proceeds through discovery and dispositive motions.
For more information on Varriale-Barker, visit https://www.segalmccambridge.com/attorneys/carla-varriale-barker/
