Examining the Increase in Foul Ball Cases and the Reasons Why

Apr 12, 2019

By John Pinkman
I was recently asked, “Why does it seem like there are more foul ball cases today than there were 20 years ago?”
There are six potential reasons:
A conundrum in the personal safety culture
More foul balls?
Increased velocity of pitches thrown
Angle of swing path
Increased stadium distraction
Stadium design
Conundrum of Safety Concerns
Today’s culture is increasingly interested in personal safety: safer cars, safer foods, and safer environment. This however presents a conundrum — we want personal safety with ‘conditions’. We want convenience. We want safety on our terms no matter how little we know about the consequences of our actions. We don’t want safety to interrupt our usual habits. Finally, we don’t want safety to make us look as if we are afraid or weak. As athletes, safety cannot interfere with how cool we look.
In my experience as a consulting expert, perhaps the greatest example of a baseball safety conundrum is the routine lack of safety and training when throwing behind L screens. An “L” screen is a protective net shaped like the letter L which pitchers stand behind as they throw to batters during practice. Throwing a ball behind an L screen is perhaps the most dangerous place in baseball. Yet coaches refuse to wear protective headgear. They also allow student-athletes to throw behind the L screens with no protection either. It is my long-held belief that student-athletes should never throw behind an L screen. When coaches are asked why they refuse to wear protection their answer is, “I’m ok, I can handle it. I’ve never been seriously hit by a ball.” Yet if you would ask, as I have, “have you been in a serious automobile accident in the past 10 years?” They say, “No… not even close.” So I ask, “well I guess then you don’t wear seatbelts.”
As in many areas of sports, education, and business, safety is not a priority until someone is seriously injured. The cost of risk mitigation by increasing the safety standards of the equipment, field structure or the stadium, is miniscule to the seven-figure litigation costs of defense and final settlement. Plus there is the overriding ethical question in the inherent duty to protect.
Several years after the date of a catastrophic injury to a young player, I had the occasion to again visit the site. The case was settled in favor of a plantiff and resulted in a multiple seven-figure award. I discovered the same culture and conditions that caused the accident remained and had actually gotten worse. Therein lies the conundrum. How was the personal guilt and sorrow forgotten? How was the disastrous business decision forgotten as well?
It is important to try to understand the sports culture and the history behind behavior. Safety in sports is always (but should not be) weighed against a strange combination of convenience, effort, cost, and coolness. The false bravado of toughness flies in the face of safety in all sports at all levels of play!
More Foul Balls?
My first inclination that more people are getting hit with foul balls was simply that there are more foul balls being hit. It stands to reason that the more foul balls that are hit, the greater the likelihood of someone in the stands being hit. I found little research on the subject to study. According to Foulballz.com, however, my supposition is not true. They state the rate of foul balls has stayed the same over the years. They also state the games have become longer; therefore more foul balls are hit. Perplexing? Me too. FoulBallz.com also obtains its data from a collection of social media sources and not exact statistical sources.
Without getting too nerdy I approached it from a different angle. Although there is scant public data on this, I found the number of pitches thrown in an average nine-inning game has increased roughly 16 pitches per game since 1988. Sixteen pitches represents approximately one inning. Even then we are talking about three or four more foul balls. Therefore, I cannot conclude there has been an enormous increase in the foul balls. But where are they being hit?
Higher Pitch MPH & Higher Swing Path Angles
The speed of the pitch and the angle at which it is hit also seem likely contributors to the location of foul balls. Without the benefit of Sabermetric data, which is not at my disposal, my experience leads me to believe that there are two reasons why more foul balls are being hit higher into the stands as opposed to a straighter line back into the back stop or catcher’s glove. Increased pitch velocity and an elevated swing path are good leads to pursue. Twenty years ago, there may have been a few pitchers throwing above 92 miles an hour. Today it’s fairly routine for college players to throw that fast. Major league velocity of 95 to 100 MPH is not unusual.
Perhaps you have fantasized about swinging at a 98 MPH fastball. Here’s the reality. The 60 foot-6 inch distance from the mound to home plate is actually not the distance the ball is thrown. The ball is released anywhere from seven to nine feet closer to the plate (assuming an efficient delivery). Research shows that a 98 MPH ball travels to home plate in less than 0.4 of a second. This response time breaks down an 85 MPH pitch:
0.1 of a second for a batter to visually locate the ball in the air
0.1 of a second to determine if it’s a ball or a strike
Finally, 0.2 of a second to execute a swing
Stunning isn’t it? So today baseballs are traveling faster and batters have to react quicker in less time. Remember, it’s a round ball being hit by a round bat. Try to figure out the dimensions of that center mass contact surface! More than any other sport, baseball requires maximum explosive skill with maximum accuracy. (Here’s a tip — if a batter fouls one off— he’ll foul two off. So pay attention to where the first ball went!)
Also, swing paths have changed. In the ‘70s and ‘80s batters were taught to swing in a downward plane. That has proven to be the most inefficient way to hit a ball and score runs. In the ‘90’s Ted Williams and my friend Mike Epstein partnered to formulate a teaching method to hit the ball farther with an elevated swing plane. That standard is in current use today in all levels of advanced baseball and softball. It is the reason more home runs are being hit in today’s game. However, the increased angle created by the elevated swing plane may create more and higher foul balls that subsequently fly into the stands, as opposed to flying off the bat in a straight line into the catcher or into the low part of the backstop screen.
Fan Distraction
More fans may be being hit by foul balls simply because they aren’t paying attention. Stadium distractions are becoming another reason more fans may be being hit by foul balls. Stadiums are becoming sideshows to the on-field competition. It’s well known that certain professional ballparks and teams are more focused on the entertainment value of the event rather than the competitive game. For instance, if you went to a N.Y. Yankee home game the fans are more likely to focus on every pitch. They’re paying close attention. Other stadiums’ business plans are directed more towards the entertainment values that sell parking, seats, refreshments, and memorabilia than they are with the competitive baseball operations of acquiring elite players and coaches throughout the entire system. There are many very profitable professional sports teams that annually produce very poor team performances. A prominent example is the Washington Redskins. Or the wandering L.A. Angels, who although are not very successful, placed sixth among 30 major league teams in total attendance in 2018. However, they recently spent $400 million on Mike Trout to change their luck!
Stadium operations also try to increase entertainment value with cell phone use, vibrant video scoreboards, electronic dynamic advertising signs, baseball trivia games, the kissing cam, and the silly dancing cam. Granted, many of these activities happen between pitches or between innings. The surrounding stimuli are competing with the game for fan attention. Nonetheless, the goal is to present a massive entertainment value — and oh yeah — there’s a baseball game going on. That’s dangerous.
We all should admit the truth. We are spending too much time on smart phones while in dangerous places. Texting while driving, reading emails and texting while crossing streets, talking and watching videos while at baseball games at all levels of play.
Stadium design
According to FoulBallz.org, stadiums are also being designed to bring fans closer to the field of play. Since 2002 new stadiums and redesigned seating have decreased foul territory. Some seats are now within yards of foul lines and stands are very vertical, thereby accommodating closer proximity and view of the field.
And of course there are those fans that think they can catch a ball. It is extraordinarily difficult to catch a foul ball. Think of the catcher who tries to catch a foul ball behind home plate and then all of a sudden lands on his backside because he misjudged the curvature flight of the ball over his head. The aerodynamic phenomenon of a rocket line drive down the first or third baseline easily curves five or six feet as it nears its destination. The fans that are in danger may never think the screaming line drive will end up in their lap — or forehead!
Are owners and facility managers doing enough to protect patrons? What could they be doing that they are not doing?
The answers to these questions are somewhat historic. In my opinion, Major League Baseball has been the last to implement safety changes. Specific issues such as performance enhancing drugs, safety equipment, and smokeless tobacco are traditionally changed at the collegiate and minor league level, then finally at the major league level. This is not unique to baseball. Other sports such as football and hockey resist change as well. Base coaches were not required to wear helmets until a coach died during a game after being hit by a line drive. To this day, all pitchers resist wearing protective headgear. This is another example of a cultural aspect of the game. That culture extends to the stands.
One of my favorite sayings is — “you can’t push a rope”. With the players resisting protection and enforcement of rules that would improve their health, it is reasonable for the culture to have a less intensive priority to introduce new safety standards for the fans in the stands as well.
In addition to the attitudes of the team owners, it is necessary to consider the attitudes of fans and television broadcasters. While it is common place in Japan to have extensive netting to protect fans, United States fans and television producers generally have not been in favor of netting that they believe obstructs their view. Some fans object to the inability to get autographs at the fences due to netting. The nets prevent players from frequently tossing balls to begging fans. If there is slow interest on the part of owners and opposition from television producers and fans, it understandable that there has been a slow safety roll out. That is — until a fan is severely injured on TV.
Having said all of that, it’s my experience that even fans attending several games per year do not fully comprehend the damage a foul ball can inflict. To address this, many collegiate and all professional teams require protective netting from the backstop to the outfield end of the dugouts.
What do you like most about being an expert witness and what do you like least?
Believe in what you do!
Everything I’ve done in my life I have done with passion. I am a teacher. When people smile they learn quicker. Safety is not something new to my world. I have preached safety and expressed safe solutions throughout my career since becoming a lifeguard during college. From the plaintiff’s side it’s been my experience that I can examine the evidence and create a logical sequence for the plaintiff’s counsel based on facts, not bias or boilerplate research text. It is important to discover the existing (or lack of a) safety culture. The true expert clearly seeks to understand, from a baseball perspective, what happened, why it happened, who is responsible, and most of all how the accident could have been prevented. A vital aspect of that forensic study is discovering whether the plaintiff was placed in a culture that promoted safety or was exposed to a lack of consistent supervision. Was the accident a one off or was the safety culture so negligent that an accident could have happened to anyone at any time? Regrettably it just happened to the plaintiff that day. That, however, is a much bigger subject than I have time to talk about at this time.
I’m also a never-ending student. Each new case affords me the opportunity to share baseball knowledge and experience. It also presents the possibility to learn much more about the law. Increasing that knowledge helps me become a better communicator with retaining counsel.
My direct on-field experience may help insurance companies avoid lengthy litigation by assessing the case early in the process. In other words, reviewing the facts in the case and determining if the plaintiff has a logical position or if the defense should defend the company with intensity.
From the defendant’s perspective, exaggeration or fraud needs to be exposed as well. However, it has been my experience that defendants that are represented by insurance companies may tend to seek textbook, boilerplate, quick and easy answers, rather than a thorough in depth and detailed investigation to discover the truth. This is shortsighted, because in the long run, diligence and persistence may be in their favor and save them from a costly settlement.
Occupational Hazards
There are two areas that I like the least or would like changed. Every game has a final score. As a coach, I’m used to knowing the score. But an expert really never knows the final outcome of the case. Most all cases are settled. Retaining counsel most often does not contact and inform me if the case is still active or if it was settled. I’m constantly following up. I also understand the heavy caseload attorneys endure and with the case closed the call to me falls low on the priority list.
Another disappointment is when it appears to me that cases are not settled on the merits of the case but on the remaining case budget. It often seems to me that it’s a game of chicken. The plaintiff has a case budget of, let’s say, $100,000 and the defense has a budget of $85,000. They charge at each other spending money until one admits to themselves, “I strategically defer. Actually, I’m out of budget — let’s settle.” I realize this may be a fact of life in the legal world. However, above all I believe in my work and I’m a competitor and want to be successful.
Relative to fan safety, do you think that major-league baseball games are safer than amateur recreational games?
It’s my direct experience over 35 years that the younger the competitor the more dangerous the experience. That goes for players on the field and for people in the stands. As brutal as it sounds, citing lack of time and money, many recreational coaches are less informed, less interested in increasing their knowledge, have a difficult time weighing the benefits of safety versus winning, and care little about the field condition and safety equipment.
The collegiate and professional players and fans represent an investment. The organization expects and protects a return on its investment. College and professional organizations are coming to the realization that they have to protect people in the stands with a greater priority. The main reason, again in my opinion, is to mitigate the risk of lawsuits. While MLB attendance is slightly declining over recent years, collegiate attendance is definitely on the rise. Increased netting extending high and down past the first base and third base dugouts are one added safety precaution. Though there is some disagreement that netting lulls fans into a false sense of security, it presents an overt effort to increase safety.
High school and recreation ballparks are perhaps more dangerous. Frequently citing lack of budget, it is not unusual to see fences that are lower or in need of repair, netting with numerous holes lacking years of maintenance and repair. Again and again I find it very difficult to understand why an organization will not invest a small amount of time and money to meet standards in safety and not recognize the very present risk of injury and litigation. Meanwhile their recreation fans tend to pay less attention to the game and more to the social conversations, unless their son or daughter is in the spotlight.
It is also my experience that it is easier to sue corporate organizations than community organizations. I’ve had many cases where retaining counsel has to aggressively advise litigation to parents in response to a catastrophic injury to their child. Potential plaintiffs often decide not to sue due to the potential negative response in the community, even when it is abundantly clear there was gross negligence on behalf of the defendants. I understand. But in almost every case in which I have been retained by the plaintiff, the injury more likely than not could have been avoided if someone was a better supervisor and trainer or spent a little bit of money on maintenance, repair or safety, to prevent the outcome.
John Pinkman is a legal consultant and frequent expert witness. He can be reached at john@pinkman.us


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