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The Danger Zone: What legal responsibility does Major League Baseball have to protect fans from foul balls and broken bats?

Insight Jill Haley Penwarden Jill Haley Penwarden · January 11, 2016

Over the past few years, there have been numerous injuries to baseball fans hit by foul balls and thrown or broken bats.  For example, at Fenway Park on June 6, 2015, a broken bat from Oakland A’s infielder Brett Lawrie flew into the stands and struck Tonya Carpenter in the head as she was seated along the third base line.  Her injuries were initially described as “life-threatening” and the game was halted while she was attended to as fans and players looked on.

On July 13, 2015, Oakland A’s season ticket holder Gail Payne filed a class action suit against Major League Baseball and its Commissioner in the Northern District of California federal court.  (Payne v. Office of the Commissioner of Baseball (dba Major League Baseball) and Robert D. Manfred, Jr. et al, N.D. Cal. Case No. 3:15-cv-03229-YGR.) Payne’s suit seeks to obtain injunctive and monetary relief against MLB to address the dangers associated with spectators being hit and injured by foul balls and broken or thrown bats, and may test the limits of the doctrine of primary assumption of risk as it applies to the risks posed to spectators at baseball games.

On October 23, 2015, Payne amended her complaint to add two additional plaintiffs (one of whom was injured by a foul ball at a Dodgers game, and another who was injured at a Minor League Baseball game and has written a book on injuries to baseball spectators).  The Amended Complaint also added each of the Major League Baseball teams as defendants.

Payne claims to represent all persons nationwide who purchased Major League Baseball season tickets and whose seats are in the “Danger Zone,” which the complaint defines as “any unnetted/uncovered area between home plate and the foul plates located at the end of the right and left field lines.”  Although Payne herself has never been injured at a baseball game, the complaint details numerous spectator injuries at various ballparks throughout the country.  Plaintiffs claim that MLB has increased the inherent risks of attending a baseball game by failing to provide netting for all seats in the “Danger Zones.”  Her suit asks the court to address the questions of what legal duty MLB owes to spectators; whether MLB has increased the inherent risks of injury to spectators by allegedly failing to provide adequate netting; and whether MLB has failed to disclose the risks of injury or misrepresented ballparks as “safe and family friendly.”  Payne requests that the court order all existing Major and Minor League ballparks to be retrofitted with protective netting from foul pole to foul pole, and that MLB be ordered to conduct a study of spectator injuries.

In response, MLB and the other defendants filed a Motion to Dismiss the First Amended Complaint in late 2015.  MLB argued that the suit should be dismissed on procedural and jurisdictional grounds; because Payne did not allege an “imminent risk of injury” to anyone given the slight risk of future injury; that baseball tickets already contain warnings of the risks associated with attending baseball games; and that Payne chose to purchase seats that were not protected by netting, although she could have purchased comparable seats behind the backstop netting for the same price.

MLB also argued that the longstanding “baseball rule” defeats plaintiffs’ negligence claims.  The “baseball rule” has been in place for nearly 100 years and is one of the earliest pronouncements of the doctrine of primary assumption of risk – the concept that one assumes the risks inherent in one’s activities.  The California courts, along with courts across the country, have long recognized that being hit by a bat or ball are inherent risks of attending a baseball game.  Many courts have held that, where screened seats are provided for those who want them, persons who choose to sit in unscreened seats assume the risk of being hit by errant bats and balls.  MLB further argues that it has no duty to warn spectators of these risks because they are open and obvious, and in any event, baseball tickets currently do contain a warning of these dangers.

In response, plaintiffs argue that the baseball rule is outdated because the game of baseball has been “amplified” over the past century, with foul balls now flying into the stands with much greater force and speed.  Plaintiffs claim that spectators are unaware of the dangers posed by flying balls and bats; that MLB’s warnings actually contribute to this lack of awareness by suggesting that spectators can protect themselves by being alert to the dangers; and that the warnings printed on tickets were inconspicuous and unclear.  Plaintiffs also argue that MLB has increased the inherent risks to spectators by providing distractions such as mascots, electronic displays, and the “MLB At-Bat” smartphone app, which is designed to be used during baseball games.

Meanwhile, on December 9, 2015, the MLB Commissioner’s office issued a press release containing recommendations encouraging baseball clubs to provide netting in addition to fan warnings and education.  The press release reads in part:

  • Clubs are encouraged to implement or maintain netting (or another effective protective screen or barrier of their choosing) that shields from line-drive foul balls all field-level seats that are located between the near ends of both dugouts (i.e., the ends of the dugouts located closest to home plate, inclusive of any adjacent camera wells) and within 70 feet of home plate…
  • Although Clubs already provide warnings to fans about the dangers posed by batted balls and bats entering the stands and the need to pay attention to the action on the field during each at-bat, the Commissioner's Office recommends that Clubs continue to explore ways to educate their fans on these issues and is providing Clubs with resources to assist them in this area.

This announcement was criticized by those who agree with plaintiffs that additional netting at ballparks is desirable, including Joe Nocera of the New York Times who called the MLB’s position “lame” in light of serious spectator injuries, because it is “not a mandate but merely a recommendation.”  See article in the New York Times on December 18, 2015.

MLB’s Motion to Dismiss is scheduled to be heard in the Northern District of California federal court in Oakland on February 16, 2016.  Defendants are asking the court to dismiss the entire case because, they argue, it has no legal basis to proceed.  Plaintiffs certainly are fighting an uphill battle in requesting a league-wide injunction to address injuries that they claim might occur in the future.  And plaintiffs argue for a substantial revision of the “baseball rule” that has been law for nearly a century.  If the court allows the suit to proceed, however, its outcome may impact the legal duty that sports teams and recreation providers owe to spectators of recreational activities or professional sports.