Is It Fair Or Foul?

Jul 4, 2008

By Carla Varriale, Esq. and Gil Fried, Esq.*
The following represents a brief exchange between two experienced attorneys who have been involved in numerous spectator injury cases arising out of errant baseballs, bats, hockey pucks and promotional items during a sporting event. They obviously do not see eye-to-eye on the liability issues, however, their dialogue provides an insight into the legal and public policy aspects involved..
What is the law?
Carla: The limited duty rule is a specialized standard of care applied to sporting venues because of the unique risk posed by objects leaving the field of play. The rule mandates that an owner or operator that provides protected seating in the most dangerous section of the venue and makes such seating available for those spectators who desire it, has satisfied its duty of care. A spectator who chooses not to occupy a seat in the protected area cannot maintain a negligence action against an owner, operator or, arguably, a player.
Gil: The limited duty rule is the law, and I, in fact, have no problem with the law. My concern is in the interpretation of its elements.
Carla: The limited duty rule is a good framework for owners, operators and spectators alike. At least twelve jurisdictions have adopted the limited duty rule, most recently the Supreme Court of the State of New Jersey in Sciarrotta v. Global Spectrum, et al., 2008 N.J. Lexis 314 (2008), and the Supreme Court of the State of Nevada in Turner v. Mandalay Sports Entertainment, LLC 180 P. 3d 1172, 2008 Lexis 23, 124 Nev. Adv. Rep. 20 (2008). The courts have recognized that the specialized duty of care is appropriate in the context of such sporting event. It is unreasonable, given the nature of the activity, to hold an owner, operator, team or even a player to be an insurer of a spectator’s safety. As Justice Cardozo put it, “the timorous may stay at home.”
The two recent cases illustrate this point perfectly. In Sciarrotta, the plaintiff elected not to sit in an area that was protected by the netting which extended above the Plexiglas. During the pre-game warm-up period, when each team used as many as twenty-five pucks, an errant puck struck a goal post, flew above the Plexiglas and hit Ms. Sciarrotta, causing her to sustain injuries.
The Supreme Court of New Jersey concluded that the limited duty applies to “all activities on the field of play, including pre-game warm-ups.” In finding that there are no “temporal limitations” to the application of the limited duty rule, the Supreme Court expressly rejected the argument that there are differing levels of distraction, depending on whether the game is in progress. Moreover, the Court found that many spectators attend sporting events for the “entire experience” and that some hockey fans arrive early to “. . . scramble for the pucks the players inevitably lift into the stands for the spectators’ delight.”
In Turner, the plaintiff left her seat and went to the concession area known as the “Beer Garden.” As she sat at a picnic table, which was not within a protected area, a foul ball struck her in the face. In recognizing the importance of establishing parameters around personal injury litigation stemming from professional baseball in Nevada, the Supreme Court adopted the limited duty rule and reiterated a concern for the demise or substantial alteration of the game of baseball. The Court noted that the Stadium was a specialized venue, with specialized activities and risks that are an inherent part of the experience. It is different that other venues, such as a shopping mall.
Gil: My perspective is borne out of the fact that there have been very few, if any, studies undertaken to examine what is the most dangerous part of the ballpark. While I could argue that most protected seats are not accessible because they are in the possession of season ticket holders, my main argument is based upon changes in the game. The early foul ball cases were prior to 1930 when being a baseball spectator was a different experience. People sat or stood by their seats, they were just starting to sell food in the stands, and people came to the game dressed in suits. The ball was different, the players were different, and the facilities were of all shapes and sizes. Now, the ball is “juiced,” pitchers are throwing faster pitchers, players are stronger, fans are closer to the action, there are countless distractions to avert attention from the game, and the danger is so real that teams are protecting their own players through putting screens in front of dugouts, but fans inches away are not protected.
Carla: All of this goes back to the open, obvious, and fully disclosed nature of the risk. And I do not know that it is fair to say that the ball is “juiced.”
For example:
• There is an average of 49.9 foul balls hit in a typical professional baseball game.
• There are an estimated 105,000 foul balls hit a year just in MLB.
• In a study of 81 published foul ball cases, only nine of the cases involved foul balls behind home plate. The majority (21) were down the first base line, 14 were down the third base line, and 10 hit fans in the bleachers.
• There are 52 reported cases of death from foul balls with three occurring at the professional level and the rest occurring at the amateur level. Three of the deaths involved spectators behind home plate, three deaths occurred on the first base line, and ten deaths occurred down the third base line.
• In a 25 game study at one professional baseball park, there were a total of 548 observed foul balls. An average of 6.6 foul balls per game (for a total of 165) landed between the dugouts in what is called the dugout boxes. Only 24 of these foul balls were hit in an area normally screened. A whopping 215 foul balls landed in the “field boxes” (average of 8.6 per game). The picnic area where the plaintiff (what plaintiff?) was sitting would have been considered part of the “field boxes.” These numbers do not show severity of the foul balls, but highlight that foul balls hit into the “backstop” are not as frequent as line shots down the first or third base line. It should be noted that when a foul ball is hit behind home plate the batter has undercut the ball and has taken a lot of the power off the ball. In contrast, a foul ball hit down the first or third base lines is often hit with full strength and power, but the batter has swung early or late.
Carla Varriale, Esq. is a partner at Havkins, Rosenfeld, Ritzert and Varriale, LLP in New York, New York, where she specializes in the defense of injury claims brought by spectators and participants at sporting events. She has successfully defended claims arising out of marketing and promotions at sports and entertainment venues and has guest lectured at Gil’s Sports Management class at Columbia University.
Gil Fried is a professor of Sport Management at the University of New Haven and serves as of Counsel with Sabia, Taimen, et al. in Hartford, Connecticut. He has served as an expert in numerous foul ball and hockey puck cases along with other crowd management issues.


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