By Gil Fried and Takao Ohashi
Most of those familiar with sport law, especially the liability side, know about the “baseball rule.” The rule as applied by many courts for almost 100 years is that an owner or operator of a ballpark should not be held liable if a patron is hit by a projectile leaving the field if the owner/operator has provided enough screened seats for those who might demand such protected seats and if the most dangerous part(s) of the ballparks are protected. The law has faced challenges over the past couple years with some courts refusing to adopt the principal and using a basic negligence approach (such as assumption of risk). There currently is a class action suit against Major League Baseball (MLB), which faced a summary judgement decision in California last month based on jurisdictional issues with teams outside of California. The suit, examining what MLB is doing to protect fans, was also impacted by a recommendation by MLB before the start of the 2015-16 season to encourage teams to expand the amount of netting at ballparks.
Regardless of how that case will conclude, it is important to examine where we stand with the baseball rule in light of how the game has changed over the years. When the rule was first developed by courts- it was in the early 1900’s with some cases before 1920- the game was a lot different back then. People came to the games in suits and top hats. There were no mascots, scoreboards, Ferris wheels, outdoor pools, kid zones, and other distractions at the game. Nowadays, the players are stronger, the bats are better, the pitchers are stronger, fans are closer to the action, and some claim the ball is a lot livelier. Also, the fans have changed in terms of their viewing habits. Years ago fans were not burdened by live streaming, social media updates, and surfing the web. Yes, some fans kept score in the program, but were able to really watch the game and notice foul balls entering the stands. Teams/stadiums are enabling this activity and encouraging fans to be as engaged as possible with content and the team. Thus, the viewing patterns have changed and fans need enough protection to reflect the current state of the industry.
What do these changes mean? It means that maybe the baseball rule is not as appropriate as in years past. As an expert witness in probably 20 batted ball cases over the past 20 plus years, I have been a strong advocate, believe it or not, of a modified baseball rule. I feel that in certain areas of a stadium a fan should not be able to recover for being hit by a foul ball. However, there are locations where injured fans should recover- if the area was not safe. That is what I want to focus on in this article. The baseball rule requires a team/stadium to protect the most dangerous part of the stadium, but where is that?
As a college professor, we rely on research to identify possible concerns and solutions. Many teams/stadiums track incidents through their incident management software system. These systems track everything from broken seats to fan complaints and fan injuries. The data can be used to identify where fans are most likely to be injured and where the most frequent locations are for foul balls. Medical treatment records can also help shed light on such incidents. One of my peer reviewed articles several years ago examined data from fan injury reports at an MLB stadium, foul balls tracked at an MLB stadium, and foul ball locations at a minor league park. From these studies, as well as other research, we identified the first and third base lines as the most dangerous parts of the ballpark. The question then becomes whether the new MLB recommendations will actually cover these areas? The area extends beyond just the start of the dugout and runs the length of the dugout according to our perspective. The same analysis has also been undertaken in Japan and I want to summarize some of that research provided by my colleague Takao Ohashi (who practices sport law in Japan for the Toranomon Kyodo Law Office). There are 12 teams in the Nippon Professional Baseball Organization.
In 2005, the Tokyo Dome protected field seating with netting installed so as to extend in front of infield and outfield seats. Similar netting was used in 2008 at the Seibu Dome, in 2010 at the Osaka Dome, and in 2013 at the Yokohama Stadium. However, in 2005, the protective netting for the infield seats was removed at Yokohama Stadium, and the netting for the infield seats was removed from the Sapporo Dome in 2006.
In Japan, announcements are typically made before and during games at ballparks to warn spectators about being hit by foul balls. Warnings are also displayed on signs and on scoreboards, employees blow whistles when a foul ball is hit, warnings are printed on the backs of the tickets, and fan viewing rules are posted on the team websites, as examples. MLB teams often use some of the same techniques, but Mr. Ohashi’s opinion is that there are more frequent warnings in Japan.
Foul ball warning sign at a Japanese stadium
In contrast to the rich history of cases around the baseball rule, the first verdict in a foul ball injury case in Japan was handed down in the Kleenex Stadium case in 2011. That same year saw a verdict in the Kamagaya Stadium case, followed by a verdict in the Koshien Stadium Case in 2014, and a verdict in the 2015 Sapporo Dome case (which was just decided on appeal). Thus, the law in Japan is much less developed.
There is no limited duty rule in Japanese law, and the point at issue in foul ball accident litigation is construction liability (Civil Law, Article 717), which focuses on whether or not the stadium is “as safe as it normally should be.” Specifically, these cases focus on the safety of locations where foul ball accidents occur and generally take into consideration the physical situation and measures undertaken to alert people to foul ball accidents. According to this standard of judgment, Japanese case law up to 2013 recognizes that conditions are safe to the extent that there is appropriate balance between three elements: protection of spectators’ safety, the obligation for spectators to exercise due caution, and the sense of presence that is an essential element of professional baseball. Further, this standard recognizes that the responsibilities assumed by teams and stadium owners are limited to the extent that spectators having a normal capacity to make decisions would obviously be aware of foul balls when they watch a professional baseball game at a stadium. All three of the cases up to 2013 were lost by the injured plaintiffs.
The Sapporo District Court, in a 2015 decision involving the Sapporo Dome, did not adopt the principle of “sense of presence” that had been one of the elements considered in previous decisions. The court held that safety should not be sacrificed in the pursuit of a sense of presence. This same decision limited the spectators’ duty to exercise caution and for the first time handed down a victory to a plaintiff, holding teams and stadium owners accountable for implementing safety measures that take into account the presence of spectators who may not be paying attention to the ball. The appellate court in 2016 decided not to adopt the “sense of presence” rule so the plaintiff lost that claim. The plaintiff prevailed against the team, Hokkaido NipponHam Fighters, on a contract claim. The plaintiff was a parent guardian on a school field trip to the stadium and since this was her first game ever attended and she was working (not their as a baseball fan but supervising children) the team had an obligation to provide her with additional warnings.
Similar to the limited available public research on MLB foul balls, the only foul ball study from Japan focused on the Japanese high school spring and summer national championships in 2002 (both held at Koshien Stadium). This research was undertaken to develop safety measures in the wake of an incident at the summer national championship in 2001 in which a member of a brass band, who was seated in the infield “Alps” seats, was struck and blinded by a foul ball. Although this was not necessarily an accurate comparison to professional baseball (they were high school students using metal bats) it is clear that the areas subject to sharp foul balls were the first and third base sidelines.
MLB’s 2015 recommendations do not speak to the height of protective nets, saying only “…that shields from line-drive foul balls in all field-level seats that are located between the near ends of both dugouts.” Similarly, there are no consistent rules or guidelines for protective netting in NPB. Japanese courts rely on the construction guidelines for baseball stadiums issued by the Exterior Sports Facilities Committee of the Sports Facilities Association as guidelines. These guidelines suggest that stadium infield protective netting should be approximately 3 m (9 feet) high. The average height of stadium infield protective netting is approximately 4.59 m (13.77 feet)(fence and protective net), and judicial precedent up to 2013 made use of the question of whether or not the standard was met as a basis for decisions. In the 2015 Sapporo Dome foul ball case, the accident occurred with a net approximately 5.6 m (16.8 feet) above ground level. The netting was actually lower than it had been in the past. Nevertheless, the court did not attach much importance to this fact, and as indicated earlier, limited the spectator’s obligation to exercise due care, which resulted in a victory for the plaintiff.
Of course MLB and NPB are not the same and there games are different. However, as Japanese and American courts are starting to more liberally interpret the baseball rule (or to get away from its strict interpretation), MLB teams should consider examining every stadium to determine what are the most dangerous areas and how much actual protection they need. While MLB claims that fans do not want the net to interfere with their viewing and fans want souvenirs, the facts show that the most expensive seats at most stadiums are already behind the home plate screen and these fans do not complain. Furthermore, having a net in the infield protects against the sharp line drives, but allows the less harmful pop-ups to still be caught by fans. The same concern was raised by the NHL before the death of a Columbus Blue Jackets fan, but after the NHL increased netting at all their arenas they do not hear any complaints from their fans. I hope it doesn’t take a death for MLB to provide enough netting to protect the most dangerous areas in their stadiums. I would challenge every MLB team to publicly release data showing where the most frequent line drives land and how many people were injured in those seats and how many people could have been protected by adding enough netting to cover the area impacted by the most frequent line drive foul balls.
Gil Fried, is sport management professor at the University of New Haven and has been serving as an expert on sport facility safety issues for almost 25 years.
Takao Ohashi is an attorney in Japan and a partner in the Toranomon Kyodo Law Office.
