A Washington state appeals court affirmed a trial court’s decision, dismissing the claim of a spectator at a Seattle Mariners baseball game, who was struck by a foul ball. In so ruling, the panel of judges echoed the judge’s finding that the club did not breach its limited duty of care, and, alternatively, that assumption of risk bars any recovery.
The incident occurred when plaintiff Teresa Reed-Jennings attended a Mariners game at Safeco Field on May 4, 2009. She arrived more than an hour before the game to watch batting practice, sitting along the right field foul line, two rows up from the field in section 116.
Her game ticket included a warning that explained the dangers of balls and bats entering the stands. Cliff Jennings, Teresa’s husband, read the warning, but Teresa did not. On the concourse above section 116, several support posts for the lower level warned spectators about bats and balls leaving the playing field. Near the Jennings’ seats on the wall separating the seats from the field, additional warnings cautioned spectators about bats or balls leaving the field. The back of each seat in section 116 warned spectators about “bats and balls leaving the field.” The plaintiff maintains she did not see any of these warnings but “knew that balls could come into the stands” during batting practice.
Safeco Field has a permanent 26-foot safety screen behind home plate. For batting practice, the Mariners place a batting cage above and around three sides of home plate and temporary safety screens at first base, second base, center field, and the pitcher’s mound. Since 2002, the Mariners have placed 8- by 10-foot temporary safety screens along the left field and right field foul lines. Major League Baseball (MLB) did not require teams to have temporary safety screens along the foul lines until 2012.
The appeals court noted that from 2005 to May 2009, over 10 million spectators attended a Mariners baseball game. Of those fans, 300 spectators have been hit by either fair or foul balls. Of those 300, only 5 spectators were injured while sitting in section 116.
Before May 4, 2009, Reed-Jennings had never attended or seen batting practice, during which “multiple balls could be batted into the air simultaneously.”
On that fateful day, the plaintiff saw a foul ball land near her seat during batting practice. Shortly after that, a batter hit a ball into center field, and Teresa attempted to track the ball’s flight. Before that ball was caught, Teresa heard another ball being hit. When she turned her head, the second ball hit her in the face. Teresa sustained serious injuries to her left eye. She twice tweeted several days after the game: “A foul ball landed in the seats in front of us and the young man next to Cliff scampered over the seats and grabbed it,” and “I said, well, that really should have been my ball. I just wasn’t fast enough. I said I wanted another one to land right there. It’ll be mine,” according to the court.
The couple sued the Mariners, alleging negligence. The Mariners moved for summary judgment, arguing it satisfied its limited duty to protect spectators from foul balls by placing several temporary safety screens on the field and a permanent 26-foot safety screen behind home plate. The Mariners also argued Teresa assumed the risk of her injury because “she knew batting practice was ongoing” and “a foul ball had landed in her seating area earlier.”
The Jennings argued the adoption of comparative fault statutes abrogated the limited duty rule. They also argued the implied primary assumption of risk doctrine does not bar their recovery because the Mariners breached its duty to exercise “reasonable care.”
The trial court granted summary judgment to the Mariners.
On appeal, the plaintiffs argued that genuine issues of material fact exist as to whether the Mariners breached its duty of care and whether Teresa assumed the risk posed by multiple batted balls being simultaneously in play during batting practice.
The appeals court noted that Washington state follows the limited duty rule. “For many decades throughout the United States, the majority of jurisdictions have applied the limited duty rule to define the duty a baseball stadium operator owes to its patrons injured from foul balls before or during a game. The limited duty rule requires baseball stadium operators ‘to screen some seats … to provide protection to spectators who choose it.’ This rule imposes two requirements on baseball stadium operators. First, baseball stadium operators must provide a sufficient number of protected seating for those spectators ‘who may be reasonably anticipated to desire protected seats on an ordinary occasion.’ Second, baseball stadium operators must ‘provide protection for all spectators located in the most dangerous parts of the stadium, that is, those areas that pose an unduly high risk of injury from foul balls (such as directly behind home plate).’”
The panel noted that the Mariners “clearly satisfied its limited duty to screen a reasonable number of seats. Safeco Field has a permanent 26-foot safety screen behind home plate. The Mariners’ head groundskeeper Bob Christofferson testified that he and his crew place temporary safety screens on the field during batting practice, including a batting cage above and around three sides of home plate and temporary safety screens at first base, second base, center field, and the pitcher’s mound. As previously noted, since 2002, the Mariners have placed 8- by 10-foot temporary safety screens along the left field and right field foul lines. MLB did not require teams to have temporary safety screens along the foul lines until 2012. Christofferson placed the temporary safety screens along the foul lines ‘to reduce the number of line drive foul balls reaching the spectator seats.’ No evidence in the record suggests the Mariners’ screening of certain sections of the stadium deviated from the screening customarily employed at other MLB stadiums.
“The record reveals a very low risk of injury in section 116 from foul balls. For example, the Mariners’ Vice President of Ballpark Operations Scott Jenkins testified that from 2005 to May 2009, over 10,000,000 patrons attended a Mariners game at Safeco Field. During that period, for both games and batting practice, ‘300 people had some form of injury or contact with a ball that left the playing field.’ Of those 300 incidents, only 5 occurred in section 116 where Teresa was injured. Nothing in the record indicates “foul balls of this kind cause serious injuries with sufficient frequency to be considered an unreasonable risk.” Similar to throwing balls pregame in Taylor v. Baseball Club of Seattle, L.P., batting practice is a normal part of pregame warm-ups. No evidence suggests the batting practice here did not conform to MLB custom.”
The appeals court summarized that because the Mariners “satisfied its duty of screening a reasonable number of seats, the Jennings chose not to sit in those screened seats, and the seats they chose did not pose an unduly high risk of injury from foul balls, they fail to demonstrate any breach of duty regarding injury from a foul ball in section 116 during batting practice. The trial court properly applied the limited duty rule.”
Turning to the argument that the implied primary assumption of risk would preclude any recovery, the panel revisited the plaintiff’s argument that “she did not fully subjectively understand the specific risk that she could be hit and injured by a foul ball sitting in an unscreened seat during batting practice when multiple batted balls are simultaneously in play.
She contends she did not voluntarily choose to encounter that specific risk.”
The appeals court disagreed.
“To establish the implied primary assumption of risk defense, the defendant must show the plaintiff fully subjectively understood the specific risk’s nature and presence, and he or she voluntarily chose to encounter the risk,” according to the panel. “In other words, the spectator ‘knowingly and voluntarily chose to encounter the risk.’”
While the plaintiff claimed “she did not appreciate the specific risk posed by multiple batted balls simultaneously in play during batting practice,” the appeals court wrote that the court in Simpson v. May dictates otherwise: “(O)ne who attends a baseball game may be precluded from recovering for damages suffered when hit by a ball or broken bat. This preclusion may apply even if the circumstances leading to the injury were somewhat bizarre.”
The appeals court continued: “The particular risk faced in attending batting practice at a Mariners game at Safeco Field is the occasional risk of an errant throw or foul ball or bat entering the stands. The record here supports that Teresa had a full subjective understanding of the specific risk, both its nature and presence, that a foul ball could be hit into section 116 and injure her during batting practice.”
Teresa Reed-Jennings et al. v. The Baseball Club of Seattle, L.P., et al.; Ct. App. Wash.; No. 71545-3-I, 2015 Wash. App. LEXIS 1074; 5/26/15
Attorneys of Record: (for appellants) Thomas Moulton Geisness, Max James Pangborn, Geisness Law Firm, Seattle, WA; Peter Thomas Geisness, The Geisness Law Firm, Seattle, WA. (for respondent(s): Thomas Charles Stratton, Rockey Stratton PS, Seattle, WA.
