by Jake Calvert*
Should stadium owners or operators be liable for injuries to spectators caused by foul balls, or is limiting such liability necessary to protect America’s pastime? Jake Calvert (’17) explores this question, based on his experience at the 2016 Tulane Mardi Gras Sports Law Invitational on February 3rd, 2016. Historically, the baseball rule has limited the duty of care game attendees on the grounds that a more typical negligence analysis would force venue owners and teams to take unreasonable precautions. The Contribution ultimately argues that the baseball rule should be supplanted by more modern notions of tort liability, such as comparative fault, that would account for the specific factors of a particular baseball game injury.
There is a historic devotion to the “baseball rule” in torts, a tool of public policy intended to protect the business of baseball, but there is very little consistency in how the rule is formulated and applied across jurisdictions. Originally sourced from common law but sometimes codified in statute, the basic justification for the baseball rule appears to be that it safeguards against a large number of once-willing but later-injured baseball fans suing in large numbers. Ultimately, the recurrent litigation might constrain opportunities for the public to continue to enjoy America’s national pastime. This piece takes the position that such fears—while perhaps justifiable based on a relatively limited pool of data—should not shape the law and that the baseball rule should either be re-shaped to better reflect modern tort doctrine, or perhaps be cast aside entirely to allow injured spectators’ claims to be weighed on their individual merits.
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Foreign objects regularly intrude upon spectator areas during baseball games. Usually, it is the baseballs themselves that make their way into common areas, often at high speed.2 Such occurrences inevitably result in injuries, but most courts are willing to view these harms as a “natural risk” of attending a baseball game.3 While it is difficult to quantify the number of spectator injuries caused by foul balls at professional and amateur baseball games, one recent Major League Baseball study found that for every million spectators per year there were about 35 foul ball injuries requiring medical care.4 For context, Major League Baseball attendance for 2015 was estimated at 73.8 million people.5 Another recent study estimated a total of nearly 2,600 foul ball injuries per major league baseball season.6 One major league ballpark was the site of 300 such injuries over the course of just over four seasons with an attendance of 10 million people, which is consistent with that estimate.7 These figures also do not include the vast number of minor league and amateur baseball games, and it is likely that there are many more such injuries across the country each year.
In grappling with the early litigation of such injuries, courts focused on the inevitability of such injuries and the obviousness of the inherent danger to spectators. The refrain became that reasonable people know that there is a “possibility that a ball could enter the stands and injure” them.8 The danger was described as “open and obvious.”9 Ordinary spectators at a baseball game understand that the batters “cannot and do not control the direction of the ball.”10 Such occurrences were “commonly incident to the inherent nature of the game.”11 Some courts even opined that these circumstances might be welcomed as part of the thrilling experience of attending a baseball game.12 But while assumption of the risk was an important part of courts’ treatment of baseball games, it was the frequency and inevitability of these foul ball injuries that appear most critical to the institution of the baseball rule. Courts combined spectators’ knowledge of risk with the not insignificant rate of injury to create a rule of special treatment for baseball.
This approach led to a near-uniform adoption throughout the states of some form of a limited duty of care for stadium owners and operators of ballparks, now known as the baseball rule. Early court holdings varied in minor ways, but they did not waiver in eliminating liability for spectator-endured foul ball injuries if certain criteria were satisfied. The court in Akins v. Glens Falls City School District specifically mentioned two alternate approaches:
Some courts have held that an owner merely has a duty to screen such seats as are adequate to provide its spectators with an opportunity to sit in a protected area if they so desire. Other courts have stated that a proprietor of a baseball field need only screen as many seats as may reasonably be expected to be applied for on an ordinary occasion by those desiring such protection.13
The Akins court went on to adopt a two-pronged approach, in which stadium owners and operators must provide: (1) a protective barrier for the most dangerous area of the stadium, understood to be the area directly behind home plate; and (2) protected seating for as many spectators as may reasonably be expected to request it on an ordinary occasion.14 If an owner or operator meets those requirements, then they have met the duty of care as a matter of law and are not responsible for any injury caused by a foul ball leaving the field of play.15
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The baseball rule, as a rule of limited duty, has functioned as an escape hatch for courts confronting facts that, under a traditional negligence analysis, would almost certainly reach a jury. But courts have generally held that applying the general duty of care for ordinary property owners to baseball facilities would require owners and operators to take “precautions that are clearly unreasonable,” thus requiring stadiums to shield all spectators at all times from the sport they enjoy and compromising the appeal of a game that Americans embrace.16 When faced with this dilemma, courts sided with baseball. The baseball rule operates by applying the duty prong of traditional torts analysis with “greater specificity” in order to screen out most, if not almost all, foul ball injuries, regardless of the specific circumstances of any particular injury.17 The goal is to protect spectators from unreasonable, unexpected dangers while avoiding the “substantial alteration of the game of baseball as a spectator sport.”18 The driving concern is that, without the baseball rule, negligence claims brought by spectators would ultimately hinge on a judge’s or jury’s evaluations of site-specific safety features and procedures, an unpredictable proposition.19
The few jurisdictions that do not use the baseball rule differ in their justifications for why the rule is inappropriate. In Rountree v. Boise Baseball, LLC, the Idaho Supreme Court declined to adopt the baseball rule based on the perception that the rule is neither justified by public policy nor in accord with recent developments in tort law.20 The case’s relevance to the current debate surrounding the baseball rule is somewhat tenuous. The Rountree court was in a unique posture: the baseball rule had never been taken up by that court, a state of affairs that is distinguishable from essentially all other jurisdictions given the rule’s long history.21 Additionally, the state’s case law provides that the court must determine whether there is a “compelling public policy” reason to adopt limited duty rules.22 The court found the state’s previously stellar safety record to be confirmation that a single injury in seven years is not a sufficient policy justification to adopt the rule.23
But judges and other analysts have presented strong policy-based justifications for the baseball rule. Searching for such rationales is common practice when defining the scope of a duty of care.24 The baseball rule has often been justified as necessary based on the aggregation of foul ball injuries across all baseball facilities in the country. Many courts have also concluded that judges are not well prepared to analyze the design of individual stadiums for safety flaws and might default towards a rule of maximum safety features. Such heightened safety features, of course, are described as undesirable to the spectators.25 Moreover, they argue that legal norms should not infringe on spectators’ viewing experience of America’s pastime.26 Without the baseball rule, baseball would be less accessible to the public, due to higher ticket prices or fewer facilities. The baseball rule’s economic impact directly addresses the potentially “onerous burden[s] on owners and operators,” both large and small.27 In fact, the only court thus far to cite the Rountree decision favorably on policy grounds still went on to deny relief to the plaintiff, because the facility had netting in place behind home plate.28
A more interesting court decision was handed down in New Mexico, where the court rejected the baseball rule, acknowledging that establishing a limited duty for owners and operators of baseball stadiums was judicially inappropriate; instead, the court decided to establish a duty of ordinary care so as not to increase the inherent risk of being struck by an object leaving the field of play.29 The court noted the widespread adoption of the comparative negligence doctrine might abrogate the need for the baseball rule, by overriding much of the law related to contributory negligence and assumption of risk as a defense for business owners.30
These courts, including the court in Maisonave, interpreted comparative fault in a way that resulted in the creation of an entirely new limited duty rule that, like the baseball rule, still limits the specific duty owed to spectators.31 This duty would require owners and operators to present baseball in a way that does not increase the risks to spectators beyond those inherent to the game.32 The holding in Maisonave also included a reciprocal element: spectators have an affirmative duty not to increase the risk that they might be struck.33 This approach might best address some of the most difficult cases at the margins of the baseball rule, such as whether distracting mascot activities or airborne hotdogs are inherent risks to the game.34
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Diverse facts have tested the boundaries of the baseball rule over time, and while this has led to some variation in application, courts have not used unique circumstances to reject the baseball rule outright. Such variations have included defining what persons constitute spectators at a baseball game and what the territorial limit of the baseball rule’s efficacy is within a stadium or park.35 The most common variation is an emphasis on the location within the ballpark where the spectator was struck. A small number of courts have held that the baseball rule covers only the stands themselves, whereas spectators in other areas away from the field—such as food concourses or in restroom queues—may be owed a greater duty of care than the traditional baseball rule confers.36 But this approach is relatively rare, and most courts extend the baseball rule’s limitations on liability to spectators in areas outside of the stands.37
As discussed above, the more modern approach involving comparative fault might be most useful in the analysis of cases that involve some other sort of interference with a spectator that led to an injury.38 However, other courts that had initially adopted the baseball rule based on these earlier doctrines have re-examined the baseball rule in the modern era and found that it remains valid, particularly for the common injuries that flow from ordinary foul balls.39 And while the Rountree court, in rejecting the baseball rule, did so on the facts of a routine foul ball that entered a luxury box, it did so as a matter of first impression while searching for a compelling public policy reason to adopt a limited duty rule as required by Idaho’s previous jurisprudence about adopting such rules, not based on evolutions in tort theory.40
While there has been some recent pushback pressure at the bounds of the baseball rule, there is no indicator of any sea change in how courts will respond when a fan is struck by a batted or thrown ball. Such situations have created a status quo that allows for what can only be described as inequitable treatment for some injured spectators and appears to be reflective of a bygone era. Many, though far from all, courts are beginning to acknowledge the inherent unfairness present where netting behind home plate will almost certainly relieve a facility’s owner of any liability to a spectator, regardless of any other circumstance. If courts develop a new standard that is more reflective of the myriad variables at issue in the context of spectator injury, it would almost certainly be an improvement over the blunt nature of the current majority approach to the baseball rule.
* Jake Calvert argued in favor of the traditional baseball rule at the Tulane Mardi Gras Sports Law Invitational in February 2016. The torts dimension of the problem asked whether the Court of Appeals appropriately declined to adopt the baseball rule as a matter of law for the imaginary District of Tulania as a matter of first impression, much like the Idaho Supreme Court in the Rountree case discussed below.
2. See generally Javier Diaz, Beware of Flying Bats: An Examination of the Legal Implications of Maple Bat Injuries in Major League Baseball, 22 Seton Hall J. Sports & Ent. L. 311, 311 (2012).
3. Quinn v. Recreation Park Ass’n, 46 P.2d 144, 146 (Cal. 1935).
4. See James E. Winslow & Adam O. Goldstein, Spectator Risks at Sporting Events, The Internet Journal of Law, Healthcare and Ethics, Vol. 4, No. 1 (2006), 2, http://print.ispub.com/api/0/ispub-article/4003.
5. Maury Brown, MLB Sees Nearly 73.8 Million In Attendance For 2015, Seventh-Highest All-Time, Forbes (Oct. 6, 2015, 2:34 PM), http://www.forbes.com/sites/maurybrown/2015/10/06/mlb-sees-nearly-73-8-million-in-attendance-for-2015-seventh-highest-all-time/.
6. See Andrew M. Milsten, et al., Variables Influencing Medical Usage Rates, Injury Patterns, and Levels of Care for Mass Gatherings, Prehospital and Disaster Medicine, Dec. 2003, at 339, https://www.cambridge.org/core/services/aop-cambridge-core/content/view/A7F3AB273FB38625F47FFE5959F95B3E/S1049023X00001291a.pdf/variables-influencing-medical-usage-rates-injury-patterns-and-levels-of-care-for-mass-gatherings.pdf.
7. See Reed-Jennings v. Baseball Club of Seattle, L.P., 351 P.3d 887, 891 (Wash. Ct. App. 2015).
8. Id. at 894.
9. Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 881 A.2d 700, 705 (N.J. 2005).
10. Brisson v. Minneapolis Baseball & Athletic Ass’n, 240 N.W. 903, 904 (Minn. 1932).
11. McNiel v. Forth Worth Baseball Club, 268 S.W.2d 244, 246 (Tex. App. 1954).
12. See Maisonave, 881 A.2d at 706 (describing baseball fans as routinely cheering foul balls and often risking life and limb to obtain them as a keepsake).
13. 424 N.E.2d 531, 533 (N.Y. 1981) (internal citations omitted).
14. Id.
15. Id.
16. Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 223 (Mich. Ct. App. 2001).
17. Id.
18. Id.
19. See Akins, 424 N.E.2d at 533–34 (criticizing the jury-focused approach advocated by the dissent as overly harsh on defendants who have taken reasonable precautions to protect spectators in dangerous areas within a baseball stadium). See also Wex S. Malone, Contributory Negligence and the Landowner Cases, 29 Minn. L. Rev. 61, 77 (1945) (“A stadium protected in all its areas would prove financially disastrous to management . . . and would outrage many devotees of baseball who like to watch the game without obstruction.”).
20. See Rountree, 296 P.3d at 373.
21. Id.
22. Id.
23. Id.
24. See Crawn v. Campo, 643 A.2d 600, 604 (N.J. 1994).
25. Maisonave, 881 A.2d at 706.
26. See generally Walter T. Champion, Jr., Fundamentals of Sports Law, §6.3 (2004).
27. Maisonave, 881 A.2d at 709. See also Ross H. Freeman, The (Hot) Dog Days Of Summer: Missouri’s “Baseball Rule” Takes A Strike, 80 Mo. L. Rev. 559, 571 (2015) (noting that any increased risk of litigation would necessarily lead to increased ticket prices).
28. South Shore Baseball LLC v. DeJesus, 11 N.E.3d 903, 911 (Ind. 2014) (noting plaintiff’s admission that “there could be a chance that the ball could come that way”).
29. See Edward C. v. City of Albuquerque, 241 P.3d 1086, 1088 (N.M. 2010). The New Mexico Supreme Court later criticized the Edward decision based on its use of foreseeability as a tool for analyzing the policy concerns related to duties of care, but that decision did not appear to abrogate the ultimate result. Rodriguez v. Del Sol Shopping Center Associates, 326 P.3d 465, 469 (N.M. 2014) (declining to adopt the Edward court’s reasoning in determining the duty of care of a shopping center owner in the event of a runaway vehicle).
30. Id.
31. 881 A.2d at 709.
32. Id.
33. Id.
34. See Lowe v. California League Prof. Baseball, 56 Cal. App. 4th 112, 120 (Cal. Ct. App. 1997) (finding that a mascot’s tail striking and distracting a plaintiff from an incoming foul ball was an increase in the risks associated with baseball spectatorship); Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184 (Mo. 2014) (holding that whether or not a hot dog thrown into the crowd by a mascot was an inherent risk of the game was not an appropriate question for the jury).
35. E.g., Clark v. Goshen Sunday Morning Softball League, 493 N.Y.S.2d 262, 262 (N.Y. App. Div. 1985).
36. See Maisonave, 881 A.2d at 709.
37. See, e.g., Alwin v. St. Paul Saints Baseball Club, 672 N.W.2d 570, 574 (Minn. Ct. App. 2003) (spectator returning from the restroom could not see the batter, was not watching the game, and could not recover); Clark, 493 N.Y.S.2d at 265 (injured plaintiff who was standing on the field before the game was a spectator as a matter of law).
38. Infra N.39.
39. E.g., Akins, 424 N.E.2d. at 533–34.
40. 296 P.3d at 378.