Even though the baseball season is over, there’s always room in a torts blog to talk about the grand old game. Because as long as the phrase “foul ball” has been in our lexicon, there have been injured fans. In few sports do we expect the key component of the game--the thing that the sport is named after, in fact-- to be peppered among the paying audience and turned into a souvenir. And yet, at nearly every baseball game a significant percentage of attendees bring their trusty mitt, hoping to snag a piece of the game.
Unfortunately, some fans come home with an entirely different kind of souvenir: an injury. A recent study estimated that 1750 fans are injured a year at Major League Baseball games--a number that is likely dwarfed by the total when considering minor league and college games. For the unlucky many, welts and bruises are the norm, with the more unfortunate fans being rewarded for their attendance with a broken bone or worse.
When I was a kid, I went to a Mets game with my friend and his mother, who had absolutely zero exposure to baseball in her life. We sat in the cheap seats, far, far away from the zone of danger. The game went to extra innings and just about everybody left, except us. So being the enterprising youths that my friend and I were, we dragged his mom all the way down to the primo seats along the first base line. Some time during the extra frames, a guy named Derek Bell launched a line drive right at us--my friend's mom put her arm up at the last second and the ball fractured both of the main bones in her forearm. Compound fractured. It was...horrible. So an unknowing person was dragged by two children directly into the zone of danger. Was that an assumption of risk?
“...that where a proprietor of a ball park furnishes screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest and that screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game, the proprietor fulfills the duty of care imposed by law and, therefore, cannot be liable in negligence.”
That is, if there are some safe seats and you’re not in one, any injury is on you. The Baseball Rule is evolving, and some courts refuse to enforce it. But for the most part it is still in effect. Teams reinforce the Baseball Rule by issuing game tickets that ostensibly warn attendees with disclaimers on the back. This text reads like a contract, saying that in exchange for the “license” to enter the stadium, you assume the risk of being injured. Here is the relevant portion of a Nashua Silver Knights ticket I picked up this past summer:
“DISCLAIMER: Management reserves the right to revoke the license granted by this ticket. Holder assumes all risks incidental to the game of baseball including, but not exclusively, injury resulting from thrown or batted balls, thrown batts, or damage to personal property in or adjacent to the ballpark whether occurring prior to, during, or subsequent to the game.”
How enforceable is that agreement? Is it vital to protecting the legal interest of baseball teams in all cases, or just “minor batteries” like a bruise? As it turns out, the ticket agreement is quite enforceable. Courts are loathe to even entertain a baseball fan injury case, although I wonder if there’s a bit of a chicken-and-egg conundrum with respect to the ticket’s enforceability and the aforementioned Baseball Rule. Is the ticket just a written description of the Baseball Rule, or would it be just as enforceable in an entirely different setting? The fact is that the ticket disclaimer is a contract of adhesion. Given that courts sometimes refuse to enforce contracts of adhesion but almost always enforce ticket disclaimers, I tend to think that the Baseball Rule is the real source of the ticket’s enforceability.
This past summer I unintentionally tested this hypothesis. A friend and I attended a game where a sponsor, a beer company, had provided free admission--sans ticket--to the general admission section of the stadium (a place rife with people selling their product!). In an admittedly-unlikely turn of events, a pitcher warming up in the bullpen let loose an errant throw that nicked off the catcher’s mitt and redirected right at me. I was struck by the ball. Given that I was in the stadium without a ticket, did that make me a slightly better potential plaintiff than my ticketed brethren in the expensive seats?
Foul ball injuries have been going on for as long as the game has been played. While only one fan has ever been killed at a Major League Baseball game, that number goes way up if you count minor league, college, and amateur competition. A book called “Death at the Ballpark” goes into great detail to describe 850 baseball-related deaths, the majority of which involve players but many spectators as well. And for every death there are hundreds or thousands of injuries, some of them severe. We seem to be reaching a zenith moment in terms of teams protecting the fans. Over the past several years there have been a number of high-profile cases where a fan was seriously injured. Most recently, a young girl was severely injured by a foul ball at Yankee Stadium. This happened even after Major League Baseball had made recommendations to teams that they extend netting to protect more fans from errant line drives. These recommendations are just that and not requirements. One would imagine that ignoring the recommendations would be a relevant factor to any determination of liability on the part of the team when an injury occurs and a fan files suit.
Perhaps teams like the Yankees that have thus-far chosen not to extend netting have performed a cost-benefit analysis, determining that the cost of “ruining” the experience for the majority of fans outweighs the inevitable tort settlements. But as the narrative of injuries becomes stronger, the public relations cost might actually be the thing that finally drives the holdout teams to protect fans in a way that has been absent for the past 150 years.