Reconsidering the Spectator Protection 'Baseball Rule'

April 23, 2020, Department, by James C. Kozlowski, J.D., Ph.D.

2020 May Law Review Reconsidering the Spectator Protection Baseball Rule 410

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In the case of Summer J. v. United States Baseball Federation, 2020 Cal. App. LEXIS 124 (2/18/2020), 12-year-old Summer J. was seriously injured by a line drive foul ball while watching a baseball game sponsored by defendant U.S. Baseball.

Summer attended U.S. Baseball’s national team trials on August 17, 2014 at Blair Field, located on the campus of California State University, Long Beach (CSULB), a stadium jointly owned and maintained by the city of Long Beach and CSULB. Summer was seated in the grandstand or “spectator bleachers,” an area of the stadium without a protective screen or netting. When she was “momentarily distracted from the field of play,” Summer was struck in the face by a line drive foul ball that caused serious injury, including damage to her optic nerve.

Summer sued the city of Long Beach, CSULB and U.S. Baseball, alleging negligence and premises liability. In so doing, Summer alleged defendant U.S. Baseball sponsored the game at which she was injured and controlled the stadium on that day.

Summer further alleged inadequate protective netting was provided for spectators at Blair Field “in the perceived zone of danger behind home plate.” In particular, she claimed the “presence of some limited netting at the stadium gave Summer a false sense of security that watching the game in a seat beyond this protected area would be safe.” In addition, Summer alleged “U.S. Baseball and the other defendants were aware of the inadequate nature of the netting, yet failed to provide any warnings regarding the danger of being struck by a batted ball.”

In response, U.S. Baseball claimed Summer’s lawsuit was barred under the primary assumption of risk doctrine. U.S. Baseball also argued the alleged dangerous condition at the stadium was open and obvious, relieving it of any duty to warn or correct the condition it might otherwise have.

Under the circumstances of this case, Summer argued primary assumption of risk should not apply because “dangers at Blair Field from hard-hit foul balls that were not inherent risks in the sport of baseball.” In particular, she alleged inherent dangers had been unreasonably increased by “the failure to install protective netting for field-level seating along the first- and third-base lines between the batter’s box and the dugouts.” Further, Summer claimed “the configuration of seating that brought spectators in the front rows closer to the field of play than 70 feet, as recommended for college stadiums.” In addition, she contended “the provision of enhanced Wi-Fi to encourage use of mobile devices and brightly colored advertising on the outfield fences” had “distracted fans from the activity on the field.”

The trial court agreed with U.S. Baseball and granted the motion to dismiss the case. In so doing, the trial court found Summer’s complaint had failed to allege any legal basis for liability because her claims were “barred under the primary assumption of risk doctrine.” Summer appealed.

Participants Assume Inherent Risks
As cited by the appeals court, the primary assumption of risk doctrine is based on the following “straightforward policy foundation”:

[Primary assumption of risk addresses] the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty [i.e., personal injury liability law] to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty would work a basic alteration — or cause abandonment of the activity.

Moreover, within the context of assumption of risk in a “sport setting,” the court would find injured participants “to have assumed the particular risks inherent in a sport by choosing to participate and the defendant generally owes no duty to protect the plaintiff from those risks.” Further, in determining the applicability of assumption of risk, the appeals court would “evaluate the fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.”

In particular, the appeals court noted “operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” Further, within the “context of businesses selling recreational opportunities,” the court found “those responsible for maintaining athletic facilities have a similar duty not to increase the inherent risks”:

Safety is important, but so is the freedom to engage in recreation and challenge one’s limits. The primary assumption of risk doctrine balances these competing concerns by absolving operators of activities with inherent risks from an obligation to protect their customers from those risks.

That being said, “while the operator or organizer of a recreational activity has no duty to decrease risks inherent to the sport,” the appeals court would find “a duty to reasonably minimize extrinsic risks so as not to unreasonably expose participants to an increased risk of harm.” (Emphasis of court)

Further, the court found: “Duties with respect to the same risk may vary according to the role played by particular defendants involved in the sport.” For example, the court made the following distinction between a batter in a baseball game and the duty owed by the stadium to spectators at the game:

[A] batter in baseball has no duty to avoid carelessly throwing a bat after hitting the ball — such conduct being an inherent risk of the sport — but a stadium owner, because of his or her different relationship to the sport, may have a duty to take reasonable measures to protect spectators from carelessly thrown bats. For the stadium owner, reasonable steps may minimize the risk without altering the nature of the sport.

Accordingly, in applying the assumption of risk doctrine, the court would consider the “significance of the defendant’s role as the operator or organizer of the activity in defining the scope of its duty to an injured participant or bystander.” In so doing, the court found the primary assumption of risk doctrine would not “absolve operators of any obligation to protect the safety of their customers.” On the contrary, the court acknowledged “the primary assumption of risk doctrine has never relieved an operator of its duty to take reasonable steps to minimize inherent risks without altering the nature of the activity”:

As a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity without also altering the nature of the activity, the operator is required to do so.” (Emphasis of court)

Major Leagues Expand Protection
On appeal, this California state appeals court further indicated it would consider the extent to which a more “modern, practical view of the importance of protective netting” for baseball spectators should reshape the traditional “Baseball Rule,” which had limited “the responsibility of stadium owners to minimize spectator injuries from foul balls.”

As cited by the appeals court, in the 1929 case of Murphy v. Steeplechase Amusement Co., 250 N.Y. 479,166 N.E. 173, Benjamin Cardozo, chief justice of the New York Supreme Court, had described what has become know as the “Baseball Rule,” defining “a baseball fan’s fundamental responsibility to protect himself or herself from injury from a foul ball.” According to Cardozo: “One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as ... a spectator at a ball game the chance of contact with the ball.”

Under the traditional “Baseball Rule,” courts in a majority of jurisdictions have held that “a stadium operator had a limited duty to provide a screened area at the ball park” only in the “zone of danger”; i.e., directly behind home plate where spectators would be unable to react in time to avoid being struck by a speeding foul ball. Accordingly, contrary to Summer’s argument, the traditional Baseball Rule would not require protective screening down the baselines. Unlike the unavoidable risk of being struck by a speeding foul ball directly behind home plate, spectators down the baselines would presumably have time and opportunity, looking out for their own safety, to avoid being struck by a foul ball.

The state appeals court in this particular case acknowledged the traditional Baseball Rule had reflected the majority “judicial view of fans’ accountability for their own protection from balls hit into the stands.” However, in “sharp contrast” to the traditional Baseball Rule applied by courts over the past century, the court noted Major League Baseball had recently decided to expand spectator protection beyond a limited “zone of danger” directly behind home plate:

[A]t Major League Baseball’s 2019 winter meetings, Commissioner Rob Manfred announced that all 30 major league teams will expand the protective netting in their stadiums “substantially beyond the end of the dugout” for the 2020 season and that seven or eight stadiums will run netting all the way to the foul poles.... Extended netting is also being installed in many minor league ball parks.

In light of these recent developments, the question before the state appeals court was whether the traditional legal duty of a ballpark operator to provide “adequate protective netting in a perceived zone of danger behind home plate” should be expanded to include “field-level seating along the first- and third-base lines between home plate and the dugouts.” In addressing this issue, the court would consider whether such a requirement would “increase safety and minimize the risk of injury to spectators without altering the nature of baseball as it is played today in professional and college ball parks.”

In her complaint, Summer had alleged that “Blair Field had inadequate protective netting in the perceived zone of danger behind home plate,” as well as “field-level seating along the first- and third-base lines between home plate and the dugouts.”

Summer had also alleged “the danger to spectators of being hit by hard-hit foul balls in the high-risk, unscreened area at Blair Field had been increased by addition of box seats on the field level along the first- and third-base lines.” Specifically, Summer claimed these seats were more dangerous because these seats “were closer to the field of play than the distance recommended for college baseball stadiums by the National Collegiate Athletic Association (NCAA).” In her complaint, Summer further claimed owners and operators of the stadium had increased the danger to spectators by creating “unnecessary distractions at the ball park, including large, colorful advertising on the outfield wall and Wi-Fi ready access to encourage spectators to use their mobile devices during ball games.”

The trial court had ruled these allegations in Summer’s complaint were “insufficient to state a cause of action for either negligence or premises liability because being hit by a foul ball is an inherent risk to spectators attending baseball games.” According to the trial court: “The lack of netting is not an increase of inherent risks.” Applying the reasoning of the traditional Baseball Rule, the trial court had found no legal duty to install extra netting that “might decrease the inherent risks of being hit by a foul ball.”

On appeal, U.S. Baseball reaffirmed the ruling of the trial court, which had found no legal basis for Summer’s claims of negligence and premises liability. Specifically, U.S. Baseball argued: “There is no legal duty to eliminate the inherent risk of being hit by a ball while watching a baseball game or to otherwise protect a spectator from being hit by a ball.”

[A]s a matter of policy, in the context of risks inherent in a sporting event, the duty to be imposed on sponsors is limited to a duty not to increase those risks. Primary assumption of risk precludes any other duty relative to the inherent risks of the sport.

Increase Safety and Minimize Risks
As characterized by the appeals court, this argument by U.S. Baseball and the ruling of the trial court “fundamentally misperceive the nature of U.S. Baseball’s duty to fans attending the August 17, 2014 national team trials.” While readily acknowledging “foul balls are part of baseball,” the appeals court found U.S. Baseball’s legal duty was not necessarily limited to exercising “due care not to increase the risks to spectators inherent in the game.” On the contrary, in the opinion of the appeals court, the applicable legal duty might require the owner or operator of a stadium to “take reasonable measures that would increase safety and minimize those risks without altering the nature of the game.” In the opinion of the appeals court: “Installing protective netting down the first- and third-base lines at least to the dugouts would certainly increase safety and minimize risk to fans sitting in those areas.” The question before the appeals court was, therefore, whether imposing such a legal duty would “alter the nature of the game.”

As cited by the appeals court, precedent in an earlier case had found “protective screens would interfere with the players’ ability to reach into the spectator area to catch foul balls, changing the very nature of the game itself.” Similarly, another case had found “it would be impossible to play the game...if foul balls hit into the stands were eliminated.”

While past generations of courts have agreed with this reasoning, the appeals court took particular note of the above described plans by Major League Baseball and many minor league teams “to expand protective netting in their stadiums substantially beyond the end of the dugouts for the upcoming 2020 season.” According to the appeals court, these plans may have been in response to “developments during the past 25 years that have increased the risk of being injured by foul balls at professional baseball games.” Such developments have included “changes in stadium construction that bring spectators closer to the playing field, elevated velocity of pitched balls and increased distractions, such as free Wi-Fi.”

The appeals court further noted that Summer had cited in her complaint the views of “experienced baseball professionals,” which favored “extending protective netting along the first- and third-base lines” to “minimize the inherent risk of being injured by a foul ball without fundamentally changing the game.”

In light of these recent developments, the appeals court would allow Summer an opportunity to amend her original complaint to allege “U.S. Baseball had a duty to ensure there was adequate protective netting at Blair Field on August 17, 2014.” Accordingly, in her negligence claim, Summer could claim U.S. Baseball had “acted unreasonably” and breached the applicable duty of care by “failing to provide netting on the field level along the first- and third-base lines at least from home plate to the dugouts.”

The appeals court would then determine whether the evidence would support the allegations in the amended complaint. In so doing, the appeals court would have the trial court reevaluate the amended complaint to consider “the extent of the stadium’s existing netting, the proximity of unprotected seats to the playing field and the history of previous injuries in the seating area at issue.”

Open and Obvious Danger
In her negligence claim, Summer had also alleged “U.S. Baseball was aware of the inadequate nature of the netting at Blair Field, yet failed to warn her of the danger of being struck by a foul ball where she was seated.” In response, U.S. Baseball had contended “that danger was so obvious it had no duty to warn Summer of the risk.” The appeals court described the “open and obvious danger” rule as follows:

Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition. In that situation, owners and possessors of land are entitled to assume others will “perceive the obvious” and take action to avoid the dangerous condition.

In response to U.S. Baseball’s open-and-obvious defense, Summer had argued “the nature of the risk of injury had been concealed.” Specifically, she claimed “the presence of some protective netting misled her (as well as other reasonably prudent spectators) into believing the unprotected seats were outside the perceived zone of danger with a high risk of injury from foul balls.” In addition, Summer claimed the risk was not “open and obvious,” because “the protective netting behind home plate was unusually narrow and the spectator seats atypically close to the field of play.” Accordingly, Summer maintained the dangers in the unprotected seating at Blair Field “are noticeable only if the spectator has expertise in mathematics, physics, human factors, or stadium design.”

In the opinion of the appeals court, these points cited by Summer were sufficient, if proven at trial, to provide a legal basis for liability. Accordingly, the appeals court would require the trial court to conduct further proceedings to determine “whether the danger of injury from foul balls in unprotected seating was sufficiently obvious to relieve U.S. Baseball of its duty to warn Summer of its existence.”

Having found a potential legal basis for liability under the circumstances of this particular case, the appeals court ordered the trial court to vacate its order which had dismissed her liability claims as “barred under the primary assumption of risk doctrine.” On remand, the trial court would fully consider Summer’s claims of negligence and premises liability consistent with the above described opinion by the appeals court.

For further reading, check out the article, “Majority ‘Baseball Rule’ Limits Spectator Liability” by James C. Kozlowski, Parks & Recreation, May 2013, Vol. 48, Iss. 5.

 James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism at George Mason University. Webpage with link to law review articles archive (1982 to present).