The Pennsylvania Supreme Court has affirmed in a majority decision a lower court’s ruling that the Philadelphia Phillies and one of its outfielders, who tossed a ball into the stands after getting the third out in an inning, did not owe a duty to a spectator, who was injured by the ball.
The decision was significant because the state had abolished its Assumption of Risk Doctrine years earlier, but the courts there have gradually reinforced a “no-duty” provision.
The accident leading to the litigation occurred on July 5, 2003 when Jeremy Loughran was attending a baseball game between the Phillies and the Florida Marlins. At the end of the top half of the seventh inning, Loughran was injured when Philadelphia centerfielder Marlon Byrd, after catching a ball for the last out, tossed the ball into the stands. Among Loughran’s immediate injuries were bleeding around his left eye, a concussion, facial contusions, and abrasions. Later on, he allegedly suffered from severe headaches, vomiting, confusion, incoherence, hallucinations, loss of balance, head and neck pain, photophobia, eye spasms, sleep disruption, and depression.
On March 8, 2004, Loughran sued, claiming Byrd and the Phillies were negligent. The defendants then moved for summary judgment, which was granted by the trial court, which wrote: “the applicable law clearly states that recovery is not granted to those who voluntarily expose themselves to risks by participating in or viewing an activity.” The plaintiff appealed.
In establishing the foundation for a decision, the court noted that for the plaintiff to succeed he would have to establish four basic elements: duty, breach, causation, and damages.
The high court first looked at “the nature of the ‘no duty’ rule and specifically, its application on the baseball diamond.
Previously, it had held that “the operator of a place of amusement is ‘not an insurer of his patrons,’ and therefore, patrons will only be able to recover for injuries caused by the operator’s failure to exercise reasonable care in the construction, maintenance, and management of the facility.” Romeo v. The Pittsburgh Associates, 2001 PA Super 343, 787 A. 2d 1027 (Pa.Super. 2001) (quoting Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (Pa. 1978)).
“The ‘no duty’ rule applies to bar a plaintiff’s claims for injuries suffered as a result of common, frequent and expected risks inherent during the activity in question. Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (Pa. 1978). It can be said that the ‘no duty’ rule has evolved into a modified version of the assumption of the risk doctrine, which has been largely abolished in Pennsylvania. Romeo v. The Pittsburgh Associates, 2001 PA Super 343, 787 A. 2d 1027 (Pa.Super. 2001).”
Before the Supreme Court, the plaintiff argued that his injuries were not the result of “a throw that could in any way be construed as a common, frequent or expected part of the game.” Appellant’s Brief, at 13.
“When determining what is a ‘customary’ part of the game, it is our opinion that we cannot be limited to the rigid standards of the Major League Baseball rule book,” wrote the majority. “We must instead consider the actual everyday goings on that occur both on and off the baseball diamond. We must consider as ‘customary’ those activities that although not specifically sanctioned by baseball authorities, have become as integral a part of attending a game as hot dogs, Cracker Jack, and seventh inning stretches. Fans routinely arrive early for batting practice in hopes of retrieving an errant baseball as a souvenir, and fans routinely clamor to retrieve balls landing in the stands via home runs or foul balls. Although not technically part of the game of baseball, those activities have become inextricably intertwined with a fan’s baseball experience, and must be considered a customary part of the game. Similarly, both outfielders and infielders routinely toss caught balls to fans at the end of an inning.”
Further, the plaintiff admitted to having attended numerous baseball games in the past, and witnessing balls being tossed into the stands on previous occasions. “Our courts have held that even a first-time spectator at a baseball game is imputed with the common or ‘neighborhood knowledge’ of the risks of the game. Schentzel v. Philadelphia National League Club, 96 A.2d at 186.
“We agree with the trial court that the injuries received by appellant from actions taken by Phillies centerfielder Byrd constituted an inherent risk of the game. Countless Pennsylvania court cases have held that a spectator at a baseball game assumes the risk of being hit by batted balls, wildly thrown balls, foul balls, and in some cases bats. See Schentzel v. Philadelphia National League Club, 173 Pa. Super. 179, 96 A.2d 181 (Pa.Super. 1953); Ierovlino v. Pittsburgh Athletic Co., 212 Pa. Super. 330, 243 A. 2d 490 (Pa.Super. 1968). See also, Dalton v. Jones, et al., 260 Ga. App. 791, 581 S.E.2d 360 (Ga.Ct.App. 2003) (holding that the doctrine of assumption of risk precluded recovery from the Atlanta Braves and their centerfielder when the centerfielder tossed a ball to fans in between innings, resulting in a permanent eye injury to a spectator).
“While appellant makes much of the manner in which the ball was thrown, and warns of the slippery slope the trial court’s decision could result in, he fails to establish that Byrd or the Phillies deviated from the common and expected practices of the game of baseball or acted in a manner which would take them out of the purview of the “no duty” rule.”
In the dissenting opinion, the justice wrote that “there is a difference between a ball that enters the stands on an errant throw during game play and one thrown into the stands gratuitously and outside the parameters of game play.”
“In my view, since the act of tossing a ball to fans as a souvenir is extraneous to the game and not necessary to the playing of the game, a spectator does not ‘assume the risk’ of being struck by a ball entering the stands for this purpose, nor is there any valid reason in law or policy to extend the immunity of the ‘no duty’ rule to this practice.
“Rather, if a baseball player wants to go beyond the confines of the game and provide a gratuitous souvenir to a fan, he should be charged with the obligation of doing it in a reasonably safe and prudent manner. Here, there is certainly evidence from which a factfinder might conclude that the manner in which Byrd threw the ball into the stands was imprudent. Thus, a question of material fact remains and the motion for summary judgment should have been denied and the case should have proceeded to trial.”
Loughran v. The Phillies and Marlon Byrd; S.Ct. Pa.; No. 652 EDA 2005; 11/23/05
