Contributions

The Baseball Rule is Not a Rule, It’s a Relic

by Jake Calvert 1

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

*****

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.

Notes:

  1. 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.