Take Me Out to The Ball Game, But Bring a Mitt

It was a pleasant day in late August last year at Wrigley Field. The Cubs were playing the Florida Marlins. A fly ball sailed into right field, into the club box seats, right into the lap of a fan busy chatting with a friend, causing severe injuries.

Two weeks later, a 10-year-old boy sitting 10 rows behind the third-base dugout was hit by a foul ball at U.S. Cellular Field. He sustained a fracture and experienced swelling in his brain. He suffers headaches and has difficulty using his right arm.

For their excruciating pain, suffering, disfigurement, and loss of consortium, they received nothing. A law that was passed in 1992, the Baseball Facility Liability Act, Ill. Comp. Stat., 38/1-49 (1992), granted immunity to the owners and operators of ballparks from errant balls for anyone struck while in the park.

Contrast that scenario with that of a fan who was hit in the eye while standing at a concession cart at a minor league ballpark in New Jersey. He suffered a fractured eye socket. The court, in citing a similar ruling in Pennsylvania, held that the stadium owner had a duty to provide protection to business invitees from balls that go out of play. The concession stand was placed in the open, without protective fences, to facilitate the view of his customers, but it was at the sake of safety first.

The New Jersey court made a distinction and found that a limited duty would apply when the injury occurs in the stands. But "[o]nce the fan had disengaged him or herself from the activity on the field and has left the stands, that individual is no longer trying to catch foul balls or even necessarily watch the game ... . [I]n areas outside of the stands, including concourses and mezzanines ... a commercial sports facility is no different than any other commercial establishment, and we do not hesitate to apply general negligence principles in virtually all other tort situations, and the specialized business invitee rule to commercial enterprises." Maisonave v. Newark Bears Professional Club, Inc., 185 N.J. 70, 881 A.2d 700 (2005).

Although batted balls may be considered open and obvious dangers at a ball park, a baseball team is still a business enterprise that owes a reasonable duty of care to its patrons. Its duty rests on the motions of public policy and fairness. Just as the owners and operators of the park must provide screens and protective devices in the most dangerous sections of the stands, so, to, courts should examine where the spectator is and what he or she was doing at the time of the incident. Are spectators required to be on red alert at all times, no matter where they are in the park?

In the cases of the Cubs and Sox fans, they obviously were busy talking to friends and were there as much for the ambience as for the game, not necessarily paying attention to every swing of the bat.

Is it reasonable that every person, particularly the young or the aged, should be forced to pay close attention to the game or risk life-scarring injuries? Apparently so, under the all-encompassing law in this state.

New Jersey, at least, recognizes that certain areas of the park have a "heightened vulnerability." In fact, baseball stadium owners "are engaged in a commercial venture which by its nature induces spectators to let down their guard." Id., 881 A.2d at 709. These include all situations when a patron no longer is in the stands, Id.

New Jersey also recognized the fact that players today are hitting the ball harder and faster, Id. This is happening at the same time that stadium owners are allowed to reconfigure parks, placing more seating closer to the dangers of the game, all the while promoting youngsters and oldsters to attend.

Let’s face it. Baseball is a business, but giving the owners special protective laws isn’t fair to the patrons who support it.

Other states approach the problem more practically and reasonably, invoking the limited duty rule, which more fairly balances the practical and economic interests of the owners and operators of the ballparks with the safety and entertainment interests of sports fans.

In affirming the appellate court’s denial of the defendant’s motion for summary judgment, the New Jersey Supreme court noted that, after an errant puck hit and killed a 13-year-old girl attending a National Hockey League game in Ohio, some critics commented that the limited duty rule was "hopelessly anachronistic" and that " ‘stadium owners are so insulated from legal responsibility that they are under "little pressure to add more protection for fans," ’ " Id., at 706 [citations omitted.]

Therefore, the New Jersey court held, in areas outside the stands, the business invitee rule would apply. The rule provides that a landowner " ‘owes a duty of reasonable care to guard against any dangerous conditions on his or her property that the owner either knows about or should have discovered,’ " Id., 881 A.2d at 709 [citations omitted.]

Fans should expect owners of a baseball field to provide protective screening for them from foul balls in dangerous areas, but injuries sustained in unseated or unprotected areas of the park, or by the unsuspecting bystander, or non-consensual youngster, should not be denied recovery as a matter of law.

In reaction to the Maisonave case, the New Jersey legislature passed the Spectator Safety Act of 2006. N.J.Stat. Sect. 2A:53A-43 (2006). As a testament to the political clout of stadium owners, the immunity measure passed the New Jersey Assembly 76-0 without discussion and then moved on to the Senate that same day, passing 25-7. The law was not retroactive and would have had no impact on the Maisonave case. It was set for trial in March after the New Jersey Supreme Court’s ruling, but settled for a confidential amount the week before trial.

Only Colorado and Arizona have similar laws; Utah, with no baseball team, has a law limiting hockey facility liability. Utah Code Ann. Sect. 78-27-62. Having baseball spectators assume all of the risk certainly cries foul. The special treatment accorded stadium owners and operators deserves a closer look.

The owners get tax breaks in building stadiums; shouldn’t the fans get a fair shake when they are injured by a ball that they did not fully appreciate would cause irreparable harm? Certainly negligence principles, including assumption of risk and contributory negligence, should come into play.

Ultimately, the legislature and the courts should ask which of the parties is better able to bear the burden of foreseeable harm in the stadium, or bears the burden to protect the patrons on its premises when dangers may not be that obvious. Rather than a patented answer, I suggest it be considered on the facts of each individual incident.