By Jacqueline Sudano, Esq.
A spectator struck by a wild foul ball at a minor league baseball game in Round Rock, Texas, wants teams to do more to protect fans from injuries like those she sustained on one fateful spring night at the ballpark last year. Jennifer Speer lost sight in her right eye permanently after being hit by an errant ball while sitting in the ninth row during a Round Rock Express game at Dell Diamond. Speer refused an offer made by the team’s insurer to cover her medical expenses that her personal health insurance would not cover, because doing so would preclude her from publicly discussing the incident and prevent her from seeking future financial recovery from the team.
But what about the assumption of risk that is inherent when a spectator purchases a ticket to a sporting event involving some sort of potential harm to its fans? A statement acknowledging that the ticketholder assumes the risks of being present at such events is usually printed on the backside of the ticket to the event itself. Dell Diamond also had conspicuous signs at the ballpark warning fans: “Heads up for foul balls.” This was in addition to announcements made during the game over the stadium’s PA system. Reid Ryan, the team’s chief executive, declined to comment to the Austin American Statesman about Speer’s case, but did say that the danger of being hit by a foul ball is “part of the game. I don’t think it’s a secret when you go to a baseball game that you are going to have a foul ball come your way.”
Assumption of risk is not only a factor in baseball, but is seen often in other sports as well. For example, there was a recent case (Betty Geeslin, As Personal Representative of The Estate of Bill Geeslin, Deceased v. Kobe Bryant; W.D. Tenn; No. 06-2768-STA, 2010 U.S. Dist. LEXIS 56994; 6/9/10) where a fan was suing Kobe Bryant for allegedly battering him during a game where he was sitting courtside, and happened to be in the way. The court ruled in Bryant’s favor, granting him summary judgment. Then there are the many cases involving hockey fans, who were hit by pucks that leave the ice in excess of 50 mph. A recent case surfaced in New Jersey, when a woman was struck by a wayward puck at a New Jersey Devils game (Sylvie Dumont v., New Jersey Devils, New Jersey Sports & Exposition Authority; Sup. Ct. N.J., App. Div.; DOCKET NO. A-5898-08T2, 2010 N.J. Sup. Unpub. LEXIS 2166; 9/1/10). Again, the team and arena prevailed against the fan. While these are tragic occurrences, the leagues have implemented security measures for all spectators across the board, whether it is putting up netting behind home plate or the goalpost, Plexiglas, extra boards, making announcements, having policies in place to accommodate fans who are not comfortable sitting in their assigned seats, and putting warnings on the back of admission tickets to each event.
Speer is currently reportedly searching for another lawyer to take her case and attempt to hold the Round Rock Express liable for her permanently impaired vision, a case in which it will likely be difficult to prevail. In Speer’s case, she will be going up against strong precedent opposing her position. Historically, especially in Texas, courts have routinely held that baseball teams are not liable to their fans for injuries sustained from being hit by fly balls during the course of a baseball game.
What attorneys have nicknamed the “Baseball Rule” is interpreted by courts as requiring minimal effort on the part of teams when it comes to protecting spectators from fly balls.
“Under common law standards, the owners and operators of ballparks are not the insurers of spectators’ safety,” Carla Varriale of Havkins Rosenfeld Ritzert & Varriale recently wrote in Sports Litigation Alert. “In many jurisdictions, an owner or operator is simply required to provide protected seats where the danger of being struck by an errant baseball or bat is the greatest, i.e. the seats behind home plate. When an owner or operator does so, it discharges its limited duty of care. A spectator who sits in an unprotected area voluntarily assumes the risks inherent in doing so and consequently extinguishes the duty of care that is owed to him or her.”
While Speer told the Statesman that “I kept my head up and I still got hit by a foul ball,” she admitted that her reason for attending the game was to catch up with her friends. “The reason I went was not for a baseball game,” she said. “The reason I went was to visit with our friends.” However, Speer claims that she was watching the game when the ball was hit in her direction, but that it happened so fast, she was unable to see the ball or duck to safety. After she was struck, she was ushered to the ballpark’s medical room, where she reportedly made an offhand comment that she should at least be able to keep the ball that hit her. An Express employee gave her a ball signed by team owner and baseball great Nolan Ryan. Thereafter, she was brought to Round Rock hospital, where she was treated for a broken nose and received stitches near her eye. It wasn’t until later that Speer discovered she would never regain vision in her injured eye.
“Does a person of reasonable intelligence know that they can be permanently disabled?” she said to the Statesman. “Does a person of reasonable intelligence know they can be killed?” Speer said her mission is to educate fans on the risks of the sport by telling her own story, and to hold the team accountable for fan injuries sustained at their games. While time will tell if she is successful, Texas courts are likely to rule, again, in favor of the team.
