By Gil Fried, Esq., of University of West Florida
The parents of a toddler who was hit by a foul ball during a May 29, 2019 Houston Astros game, fracturing her skull, have recently reached a settlement with the team. The child, who was two years-old at the time, was hit by a ball off the bat of Cubs center fielder Albert Almora Jr. The child suffered a fractured skull and has, according to the family attorney, a permanent brain injury. At the time of the game in 2019, Minute Maid Park’s netting reached from the end of one dugout to the other. Unfortunately, the child was sitting farther down the left-field line. Several months after the incident, the team extended its netting farther down the baselines.
In January 2020, MLB announced that every team would have extended netting for the upcoming season, following reports of fans getting injured and even killed by foul balls. Linda Goldbloom, died after attending a Padres-Dodgers game at Dodger Stadium on Aug. 25, 2018. During the game, a foul ball went over the protective netting and struck her in the head.
Teams have been able to avoid liability in many jurisdictions by using the Baseball Rule as a strategy to avoid liability. The Baseball Rule was started back around 1911 where a team/venue was not held liable for fan injuries that could be expected and for which a team/venue has taken some reasonable precautions. The Baseball Rule basically says that fans assume the risk of injury from projectiles entering the stands if the team/stadium protect the most dangerous parts of the ballpark. The Rule has survived for over 100 years, even though of late a number of state supreme courts have struck down the Rule. While I expect the number of suits to go down as MLB is now protecting a broader swatch of seats in “the most dangerous” parts of the stadium. The most dangerous parts of stadiums are often down the first and third base lines before and after the dugout. This has been an evolving area as fans are sitting closer to the action, and balls/players are faster than in years gone by.
One element that has not been considered by the courts is legislation enacted back in the “good ole days” codifying the Baseball Rule. The Baseball Rule has been interpreted by many state courts as a common law doctrine. However, after several losses in state courts and the great lobbying efforts of teams to require new laws for a team to move to a given state, four states have codified the Baseball Rule in statutes. Arizona and Colorado were the two states where new teams lobbied to get the law to change before playing their first games at their new ballparks. In Illinois and New Jersey, the state legislatures codified the Baseball Rule after the Baseball Rule had been rejected (wholly or in part) by the courts. These statutes can be found as follows: ARIZ. REV. STAT. ANN. § 12-554 (2021); Colorado Baseball Spectator Safety Act of 1993, COLO. REV. STAT. ANN. § 13-21-120 (2021); Baseball Facility Liability Act, 745 ILL. COMP. STAT. ANN. 38/10 (2021); New Jersey Baseball Spectator Safety Act of 2006, N.J. STAT. ANN. §§ 2A:53A-43-48 (2021).
For example under Arizona’s statute:
“A. An owner is not liable for injuries to spectators who are struck by baseballs, baseball bats or other equipment used by players during a baseball game unless the owner ‘does not provide protective seating that is reasonably sufficient to satisfy expected requests.”
Thus, the predicate is what fans want, compared to what is the safest area.
The statute goes on to define the intended area of protection as follows:
3. “Protective seating” means either:
(a) An area in which a screen to prevent a ball or bat from entering the seating area exists between the spectator and the playing field.
(b) An area that is reasonably safe for the avoidance of injuries from baseballs, baseball bats or other equipment used by players during a baseball game.
Based on this definition, even having a 20-foot-wide screen would technically meet the requirements of the law without exploring where injuries actually occur and what is the real dangerous area. It would be akin to a law protecting a ship if there is an accident as long as there was a little lifeboat-even if it could only help a small percentage of those on the ship.
The Colorado law specifies that the team/stadium could be sued if they “fail to make a reasonable and prudent effort to design, alter, and maintain the premises of the stadium in a reasonably safe condition relative to the nature of the game of baseball.” This vague language makes it unclear what constitutes a reasonably safe condition- especially as it relates to the nature of the game of baseball. Even though the language is unclear, the legislature in Colorado took pains to insert a clause that the law was designed to:
SECTION 3. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.
Who cares if a good number of people were seriously injured, the legislature had it in their mind to protect the “people”- not the owners/operators of ballparks in the state.
The Illinois law removes all question that a team/venue cannot be sued even if they had a 10-foot-wide screen and there were numerous concerns on either side of the small screen. The statute provides:
“Sec. 10. Liability limited. 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.” (emphasis added by author)
Thus, in Illinois, a team could have a ten-foot-high and ten-foot-wide screen that only blocked five percent of all foul balls- and they would still receive immunity protection.
New Jersey provided the same basic insulation from liability to teams so long as they have installed netting protecting the most dangerous area of their stadium (specifically identified by statute as being that behind home). The New Jersey law, expands the traditional scope of foul ball liability protection to cover anywhere one might be hit by a foul ball anywhere “on the premises” which could be interpreted to mean even those hit by foul balls in concession lines or even outside the stadium at a minor league park.
The interesting part of the New Jersey law is how the legislature concluded that the most dangerous part of the ballpark is right behind home plate. The specific statutory language is as follows:
“Nothing in section 4 of this act shall prevent or limit the liability of an owner who fails to provide protection for spectators in the most dangerous sections of the stands. This limited duty may be satisfied by having a net behind home plate.”
How did law makers who might have played ball as kids, or even up to college baseball know that the area behind home plate was the only area that needed protection? Of course, they didn’t. They took the common knowledge that ballparks have screens behind home plate, so home plate obviously is the most dangerous area. As everyone knows- common knowledge is rarely correct and can be disproven with unbiased research.
These laws help demonstrate how the law sometimes does not keep up with reality. MLB baseball realized that there was an issue with netting and that the most dangerous part of the ballpark might not just be the area behind home plate. Yet, law makers have not revisited these laws to make sure reality is followed. It might just be a matter of time that some injured fans might challenge these laws as out of date or inaccurate. While courts will probably rely on legislative intent, the question becomes based on what did these state legislatures create and craft these laws? If teams were the primary lobbyist for such legal protections, and then they changed what the teams in fact do, should the law be changed or will courts keep applying these laws knowing that teams/venues have expanded the area covered by netting. It might turn out that the court of public opinion will be the driving force with team settling these cases to avoid the lightening storm caused by a child being wheeled away on a stretcher uploaded and viewed by millions on social media.
My hope is that with the expanded netting fewer people would be seriously hurt and teams will be able to show with hard data that they are protecting the most dangerous parts of the stadium, regardless of where they might be (remember all stadiums are different so the risks will vary in every stadium). If this is what teams do then they should receive protection from fans who should assume some of the risks with going to a game. State laws codifying legal protections should be revisited to make sure they are consistent with reality and do not provide unreasonable protection that can harm baseball fans.