Baseball Spectator Takes Another Swing, and Misses, at The Baseball Rule

Nov 24, 2017

By Carla Varriale, of Havkins Rosenfeld Ritzert & Varriale
New York’s Appellate Division, First Department unanimously affirmed the summary judgment decision in Zlotnick v. New York Yankees Partnership and Major League Baseball that dismissed the personal injury action against defendants New York Yankees Partnership’s (“NY Yankees”) and Officer of the Commissioner of Baseball d/b/a Major League Baseball (“MLB”).
The media seized upon Zlotnick because it involved questions of whether the “Baseball Rule” was outmoded. The Baseball Rule was crafted by New York’s Court of Appeals in 1981 and it has been a bedrock specialized duty of care that requires owners and operators of baseball stadiums to screen the area behind home plate. The question of whether the protective screening should be extended beyond home plate became a national debate, particularly after several spectators sustained horrific injuries (including Mr. Zlotnick) because they were struck by an errant baseball while watching the game from an unprotected area. Indeed, Mr. Zlotnick (an attorney) became an advocate for extending the netting in order to protect spectators, notwithstanding the Baseball Rule. He also argued that the presence of umbrellas (permitted by the Yankees if there was inclement weather) during baseball gams obstructed his view of errant baseballs and enhanced the risks presented to him
The Appellate Division, First Department was not persuaded by either argument. Although the Court observed that the Court was “painfully aware” of recent cases involving spectator injuries during the argument of the appeal, the panel noted that it was constrained by New York’s precedent to apply the Baseball Rule to the facts of the case. Plaintiff would have to appeal to the Court of Appeals and request that it revisit the Baseball Rule.
The decision affirming summary judgment on behalf of the NY Yankees and MLB mirrored the Appellate Division’s comments and questions during the argument of Mr. Zlotnick’s appeal. There was no dispute that the NY Yankees provided the requisite netting and complied with the Baseball Rule; Mr. Zlotnick simply contended it was not sufficient to protect spectators who were vulnerable to injury. Mr. Zlotnick’s argument that he did not assume the risk of injury under the circumstances were similarly unavailing. Aside from his admitted awareness of the risk of watching a baseball game from an unprotected area, warnings were provided on back of his ticket, the back of his seats and made over the public-address system. Mr. Zlotnick did not request to change his seats or express any concerns about his safety to stadium personnel prior to the accident. These undisputed facts were fatal to his negligence action.
Mr. Zlotnick intends to seek leave to appeal to the Court of Appeals in order to take another swing at the Baseball Rule. In order to prevail, must first persuade the Court of Appeals that it should revisit the Baseball Rule and that the issue is one of public importance. He does not have the right to appeal to the Court of Appeals under New York’s procedural rules. He will undoubtedly try to persuade the Court of Appeals to hear his case, as he has in his advocacy to extend the netting at stadiums, because the Baseball Rule is outmoded and places vulnerable spectators such as children at risk of injury. If the Court of Appeals agrees to hear his case and then agrees to upend the stalwart Baseball Rule, that would be a stunning legal double play.
Carla Varriale is Partner at Havkins, Rosenfeld, Ritzert & Varriale, LLP in New York. Her practice focuses on the sports and recreation industries. She also teaches Sports Law and Ethics at Columbia University’s School of Professional Studies. She can be contacted at


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