By Scott A. Andresen, Esq.
“Major League Baseball prides itself on providing fans in our ballparks with unparalleled proximity and access to our players and the game taking place on the field. At the same time, it is important that fans have the option to sit behind protective netting or in other areas of the ballpark where foul balls and bats are less likely to enter.” Rob Manfred, Commissioner, Major League Baseball (December 9, 2015)
August 29, 2017 was just another day at historic Wrigley Field in Chicago. John Loos and his son had secured great seats to watch the first place Chicago Cubs take on the Pittsburgh Pirates. Pitchers Jake Arrieta and Chad Kuhl were locked in a 0-0 pitchers duel as the game entered the fifth inning, but that is where things took a decidedly bad turn for Koos. Kuhl (now a batter) fouled off Arrieta’s 77th delivery of the game into the first base stands, striking Loos in the face. Months after the fateful incident, Loos still has no vision in his left eye and is facing the possibility of a prosthetic eye.
As a result of injuries sustained, Loos filed a lawsuit in the Circuit Court of Cook County, Illinois against the Chicago Cubs and Major League Baseball alleging negligence against MLB and ‘willful and wanton’ Conduct against the Chicago Cubs.[i] In particular, Loos alleged that MLB and the Cubs:
Failed to mandate/install spectator netting of a height, type, and in a manner that would prevent patrons like Loos from being injured;
Failed to assess/re-assess spectator netting to determine if it was of a height, type and in a manner than would prevent patrons like Loos from being injured in light of multiple incidents of injuries to patrons caused by baseballs being hit into the stands;
Failed to properly warn patrons like Loos of the risks of serious injury or death posed by baseballs being hit into the stands; and
Failed to take steps to protect patrons like Loos from the risks of serious injury or death posed by baseballs being hit into the stands.
Despite the dramatic nature of Loos’ injury, he faces long odds of winning in court. Not only have judges across the country thrown out such lawsuits due to the “Baseball Rule” discussed below, but Illinois is one of four states where the Baseball Rule has been codified into statutory law.
The Baseball Rule
The first appellate court decision addressing the liability of a professional baseball club to a patron injured by a foul ball was rendered in 1913 by the Missouri Court of Appeals in the matter of Crane v. Kansas City Baseball & Exhibition Co.[ii]The Crane court upheld a lower court dismissal of a lawsuit filed by a patron injured by a foul ball during a minor league baseball game, while simultaneously setting forth the general framework for deciding similar cases for the next century.
The “Baseball Rule” currently upheld in most states is generally recognized as having its origins a year later in Edling v. Kansas City Baseball & Exhibition Co.[iii] [iv] The Edling court opined:
One of the natural risks encountered by spectators of a professional baseball game is that of being struck by a fouled ball, and it goes without saying that defendant was not required by law, and did not undertake, to insure the patrons of the screened—in portions of its grand stand immunity against injury from such source, but, being in the business of providing a public entertainment for profit, defendant was bound to exercise reasonable care to protect its patrons against such injuries.
Defendant recognized this duty by screening that part of the grand stand most exposed to the battery of foul balls, and impliedly assured spectators who paid for admission to the grand stand that seats behind the screen were reasonably protected.
The Baseball Rule can succinctly be said to absolve stadium owners of liability so long as an adequate number of seats, namely in the area around home plate, are behind properly-maintained protective netting. Fans who sit elsewhere are presumed to have willingly assumed the risk of being hit by a ball or bat.
Illinois’ Baseball Facility Liability Act
Likely in response to two court cases decided against the Chicago Cubs and Chicago White Sox six months earlier[v], the Illinois state General Assembly became the first legislative body to codify the common law Baseball Rule in 1993 with the implementation of its Baseball Facility Liability Act.[vi] The Act states, in relevant part:
The owner or operator of a baseball facility shall not be liable for any injury to the person or property of any person as a result of that person being hit by a ball or bat unless: (1) the person is situated behind a screen, backstop, or similar device at a baseball facility and the screen, backstop, or similar device is defective (in a manner other than in width or height) because of the negligence of the owner or operator of the baseball facility; or (2) the injury is caused by willful and wanton conduct, in connection with the game of baseball, of the owner or operator or any baseball player, coach or manager employed by the owner or operator.
Under Illinois law, willful and wanton conduct is viewed as an aggravated form of negligence. Thus, in addition to pleading and proving the basic elements of a negligence claim, namely, that (i) defendant owed a duty to the plaintiff, (ii) defendant breached the duty, and (iii) the breach was the proximate cause of the plaintiff’s injury, a plaintiff must also allege (iv) either a deliberate intention to harm or an utter indifference to, or a conscious disregard for, the welfare of the plaintiff.
In the present matter, the plaintiff will have a very difficult time proving “willful and wanton” conduct on the part of the Cubs as the Cubs adhered to Major League Baseball’s December 2015 recommendation to extend protective netting to the inner edge of the dugouts at Wrigley Field.[vii] The Cubs have also announced plans to move their dugouts further down the baselines prior to the 2018 season, thus further extending the protective netting that extends to the inner edges of those dugouts.[viii]
Despite the long odds faced by Loos, there are “business reasons” for the Cubs and MLB to resolve this matter prior to a determination by the court. First and foremost, there is a batting American League pitcher’s chance that Loos could prevail on the merits against one or both defendants. Legal counsel for Loos has carefully crafted his lawsuit to allege a cause of action outside of the protection afforded by the Illinois Baseball Facility Liability Act. Namely, counsel has alleged “willful and wonton” conduct on the part of the Cubs. The presumption is that counsel will argue that the Cubs were aware of prior serious injuries at Wrigley Field and around Major League Baseball from batted foul balls and still failed or refused to extend their protective netting beyond its then-current configuration. Further, counsel has stated that he will attempt to convince the presiding judge that Major League Baseball is not covered by the protection afforded by the Baseball Facility Liability Act.[ix] Counsel could also argue that MLB was negligent in not making its 2015 recommendations regarding safety netting (discussed below) mandatory. Second, there is a public relations reason for the Cubs (and MLB) to resolve this matter as the financial costs of providing some level of compensatory remuneration would pale in comparison to the negative PR that would accrue to the team and MLB should they decide to take a “hard line” in this matter.
Outside the Courtroom
In December 2015, Major League Baseball issued a recommendation to its clubs to add netting, or some sort of protective barrier, to shield fans from balls and bats in all field-level seats between the near ends of both dugouts and within 70 feet of home plate.[x] To date, only about one-third of MLB teams have implemented this recommendation.[xi]
Never shy to weigh in on issues involving America’s Pastime, one U.S. Senator also recently took notice of this issue. The Senate’s second-ranking Democrat (and Cubs fan), Illinois’ Dick Durbin, sent a communication to MLB Commissioner Rob Manfred demanding that “For the good of the sport and the safety of your fans: extend the nets.” Durbin concluded his communication with a fist in a velvet glove statement that he is “eager to discuss the steps being taken to encourage common sense safety measures at ballparks.”[xii]
While it would appear that the Chicago Cubs and Major League Baseball would ultimately prevail in the current litigation initiated by John Loos, there are a number of reasons for the Cubs and MLB to resolve this matter prior to a judicial determination. It would also be advisable for MLB to re-address its prior studies on the issue of protective netting and issue a mandate (rather than a recommendation) that all clubs install additional netting as may be determined necessary and appropriate to the extent that they have not already done so.
[i] John “Jay” Loos v. Major League Baseball and Chicago Cubs Baseball Club, LLC, Case No. 2017-L-010195 (Cir. Ct. Cook County, October 6, 2017).
[ii] Crane, 153 S.W. at 1078.
[iii] 168 S.W. 908 (Mo.Ct.App. 1914).
[iv] Two earlier cases involved injuries resulting from baseballs, but neither occurred in connection with attendance at a professional baseball game. Williams v. Dean, 111 N.W. 931 (Iowa 1907) (patron injured watching horse a race held simultaneously with a baseball game); Blakeley v. White Star Line, 118 N.W. 482 (Mich. 1908) (patron injured at a dance by baseball thrown by practicing baseball players).
[v] See Coronel v. Chicago White Sox, Ltd., 230 Ill.App.3d 734, 171 Ill.Dec. 917, 595 N.E.2d 45 (1992), and Yates v. Chicago National League Ball Club, Inc., 230 Ill.App.3d 472, 172 Ill.Dec. 209, 595 N.E.2d 570 (1992).
[vi] 745 ILCS 38/
[vii] See http://www.chicagobusiness.com/article/20151209/BLOGS04/151209770/more-safety-netting-coming-to-cubs-sox-games
[viii] See https://ballparkdigest.com/2017/09/26/tigers-cubs-extending-ballpark-netting-for-2018/
[ix] See http://www.chicagotribune.com/news/local/breaking/ct-met-lawsuits-injuries-ballparks-20171010-story.html
[x] See http://m.mlb.com/news/article/159233076/mlb-issues-recommendations-on-netting/
[xi] See https://www.10tv.com/article/teams-vow-put-netting-after-girl-hit-foul-ball-yankees-game
[xii] See https://www.bloomberg.com/news/articles/2017-09-21/after-yankees-fan-hit-a-senator-goes-to-bat-for-protective-nets