DePaul Journal of Sports Law DePaul Journal of Sports Law
Volume 16
Issue 1
Spring 2020
Article 7
The Prehistoric Baseball Rule: Outdated for Today's Game The Prehistoric Baseball Rule: Outdated for Today's Game
Kyle Tanzer
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Kyle Tanzer,
The Prehistoric Baseball Rule: Outdated for Today's Game
, 16 DePaul J. Sports L. & Contemp.
Probs. (2020)
Available at: https://via.library.depaul.edu/jslcp/vol16/iss1/7
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DePaul J. Sports Law, Volume 16, Issue 1
I. INTRODUCTION
One of the biggest changes to Major League Baseball (MLB), in the modern era, is the
expansion of its protective screening. As of 2015, all MLB ball clubs had “no more than the
standard, behind-the-plate netting in their ballparks.”
1
That all changed when a little girl got hit
in the head by a 105 mile-per-hour foul ball while attending a New York Yankees game.
2
As a
result, the little girl suffered a fractured scull and was hospitalized for six days.
3
Today, the little
girl has to “wear an eye patch for five hours over her non-injured eye to help the weaker side
recover from the hit.”
4
Out of all the foul balls that came before, this incident was the tipping
point that made a change to MLB’s protective screening.
5
This occurrence was so devastating to
everyone at the ballpark. You could hear a pin drop in the stadium, and there was a long
stoppage in play while the little girl got medical attention.
6
Todd Frazier, the Yankee player that
hit the foul ball was emotional. He instantly dropped in a crouching position with his head
folded into his chest.
7
The majority of baseball players and coaches from both teams were
showing the same if not similar body language, and a few were brought to tears.
8
This was not
an ordinary pop-up foul ball. It was a line drive that kept pulling toward the fans sitting behind
third base.
9
At the time, like most ballparks, the protective screening at Yankee Stadium only
extended from behind home plate to the beginning of the dugout.
10
This made every fan above
or past the dugout vulnerable to foul balls and other objects that may end up flying into the
stands.
11
“The incident at Yankee Stadium sparked a league-wide response for a change in
netting in areas of baseball stadiums that were most at risk for high-speed balls.”
12
Two months before this incident, the New York Yankees were “‘seriously exploring’
extending protective netting after a series of events including: New York City council member
… proposed a law mandating netting from behind home plate to both foul poles, the Mets
extended their netting beyond the dugouts, and a … line drive foul ball bloodied a man at
Yankee Stadium.”
13
1
John Harper, MLB’s Announcement of Extended Netting is a Long Overdue Win for Those Seriously Injured by
Foul Balls, N.Y.
DAILY NEWS, Feb. 01, 2018, https://www.nydailynews.com/sports/baseball/extended-netting-long-
overdue-win-injured-foul-balls-article-1.3793772.
2
See Dean Balsamini, Girl Hit by Yankees Foul Ball is Still Traumatized, N.Y. POST, Apr. 14, 2018,
https://nypost.com/2018/04/14/girl-hit-by-yankees-foul-ball-is-still-traumatized/.
3
See Danielle Zoellner, Revealed: Girl, 2, Who Suffered A Fractured Skull When She Was Hit in The Face by
105mph Foul Ball at Yankees Game is Still Recovering From Her Injuries Months Later, D
AILY MAIL U.K., Apr.
14, 2018, https://www.dailymail.co.uk/news/article-5617137/Girl-2-hospitalized-getting-hit-face-105mph-foul-ball-
recovering.html.
4
Id.
5
Harper, supra note 1.
6
Chris Goossens, Child Gets Hit with Todd Frazier Foul Ball Line Drive at Yankee Stadium - Yankees v Twins,
Y
OUTUBE (Sept. 20, 2017), https://www.youtube.com/watch?v=kEUfrSxTQ1s.
7
Id.
8
Id.
9
Id.
10
Id.
11
See id.
12
Zoellner, supra note 3.
13
William Weinbaum, How One Fan’s Story Contributed to a Conversation About MLB’s Safety Netting, ESPN,
Mar. 31, 2018, http://www.espn.com/mlb/story/_/id/22955279/how-baseball-reached-tipping-point-fan-protection.
147
DePaul J. Sports Law, Volume 16, Issue 1
The question becomes whether the father of the minor child would prevail if he brought
suit against the Yankees. Would the Yankees be held liable for failure to extend its netting when
they were “seriously exploring” the idea two months before the incident? Should the little girl’s
age be a factor? All of these questions should be considered.
This horrific incident created the expansion of netting on top of the dugouts. Some
franchises have even chosen to extend it further – to the edge of the outfield.
14
The question then
becomes, how high does the netting have to extend? This is a guideline that has not been set by
MLB. This is a scary yet understandable omission. If MLB set a guideline and the owner’s
complied with the dimensions of screening, they would not be held liable for regular foul balls
that end up in the stands. However, if there are no set guidelines, owners are able to decide these
matters on their own. Thus, if a ball is hit an inch over the netting and injures a spectator in the
stands, an argument can be made that if the screening was simply an inch higher, the injury
would not have occurred. However, this argument can be made at any dimension. In these
potential lawsuits, decisions would most probably be left to a reasonable test on whether the
owner should be held liable for the foul ball injury. However, if there are guidelines set by the
MLB, owners would simply need to follow them or be subject to liability.
For foul ball cases, courts have been relying on the “Baseball Rule” for over one hundred
years.
15
The Baseball Rule holds:
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.
16
The Baseball Rule has been applied by a majority of courts for over a century. This Paper will
discuss the history and scope of the Baseball Rule and courts’ detachment from the Rule. In
addition, this Paper will make reference to how the Baseball Rule is interpreted today. The
purpose of this Paper is to rebut the courts’ use of the Baseball Rule. The target is for courts to
dismiss the Baseball Rule and adopt a factor test when a spectator gets struck with an object that
leaves the field of play. In addition, the goal is for all baseball leagues to adopt guidelines for its
protective netting location and dimensions.
First, in Part I, this Paper will narrate the history behind the creation of the Baseball Rule.
It discusses the nature of baseball when it was first played in the 1800s. This section will then
14
Andrew Joseph, The Red Sox Are Dramatically Expanding Netting at Fenway After Scary Incidents, FORTHEWIN,
Jan. 22, 2018, https://ftw.usatoday.com/2018/01/red-sox-netting-mlb-stadium-fenway-park-yankee-stadium-
protective-fan-hurt-foul-ball-rules.
15
Crane v. Kan. City Baseball & Exhibition Co., 153 S.W. 1076 (Mo. Ct. App. 1913).
16
Akins v. Glens Falls City Sch. Dist., 424 N.E.2d 531, 534 (N.Y. 1981).
148
DePaul J. Sports Law, Volume 16, Issue 1
examine how the Baseball Rule evolved from the early 1900s to the late 1900s. Part I will then
show how the Baseball Rule would be applied differently today.
Next, Part II of this Paper will detail how the Baseball Rule is outdated. This section will
go through more recent case law that has moved away from the Baseball Rule. Part II will also
discuss when the Baseball Rule is not applied, such as when the owner increases the risks of the
game.
Part III of this Paper will discuss how particular states have included the Baseball Rule in
its legislation. This section discusses the scope of the Baseball Rule, so it does not become
guesswork for the courts. Finally, Part III will illustrate the most recent cases that involve
challenging the Baseball Rule.
Finally, Part IV of this Paper will discuss how the Baseball Rule has been applied
inconsistently. Finally, this section will discuss factors that a court should consider when
determining whether an owner should be held liable for a foul ball that injures one of his or her
spectators.
II. THE DEVELOPMENT OF THE BASEBALL RULE
A. Where It All Began
“The first recorded baseball game in America was played in 1846 on Elysian Fields in
Hoboken, New Jersey.”
17
At the beginning of baseball’s era, the game was pitched underhand,
which was less dangerous than the style of baseball played today.
18
“By the 1880s, the rules of
the game had [changed, which allowed] pitchers to throw overhand and catchers wore masks and
chest protectors.”
19
Because of the new pitching rule change, “the grandstand area behind home
plate became known as the ‘slaughter pen,’ because of the frequent injuries suffered by
spectators watching the game from that area.”
20
B. Baseball’s Protective Netting
After a long list of injuries, in 1879, the Providence Grays were the first professional
baseball team to erect netting behind home plate.
21
The purpose of screening the area behind
home plate was to protect spectators from being hit by foul balls.”
22
Although this was a clever
innovation for professional baseball’s spectator safety, “the new screens were not always well
received.”
23
A minor league baseball club in Milwaukee installed wire netting “in front of the
grandstands, but it was removed a week later due to fan complaints about the obstruction of
17
Edward C. v. City of Albuquerque, 241 P.3d 1086, 1092 (N.M. 2010) (quoting LEONARD KOPPETT, KOPPETT’S
CONCISE HISTORY OF MAJOR LEAGUE BASEBALL 5, 7 (2004)).
18
See Edward, 148 N.M. at 652 (quoting ROBERT M. GORMAN & DAVID WEEKS, DEATH AT THE BALLPARK: A
COMPREHENSIVE STUDY OF GAME RELATED FACILITIES OF PLAYERS, OTHER PERSONNEL AND SPECTATORS IN
AMATEUR AND PROFESSIONAL BASEBALL, 1862-2007 9, 131 (2009)).
19
Edward C., 241 P.3d at 1092 (quoting J. Gordon Hylton, A Foul Ball in the Courtroom: The Baseball Spectator
Injury as a Case of First Impression, 38 T
ULSA L. REV. 485, 488 (2003)).
20
Id.
21
Id.
22
Id.
23
Edward C. v. City of Albuquerque, 241 P.3d 1086, 1092 (N.M. 2010).
149
DePaul J. Sports Law, Volume 16, Issue 1
view.”
24
This Milwaukee situation became an outlier as “by the late 1880s, it was commonplace
for owners of baseball parks used by professional teams to screen the grandstand directly behind
home plate, leaving the rest of the grandstand area and bleacher seats unscreened and
unprotected.”
25
The purpose for not screening the grandstands adjacent to home plate was to
prevent obstruction to the spectators’ view.
26
“[M]any field-level fans do not want screens or
other protective devices in these areas because they feel their views will be degraded, foul ball
catching opportunities will be decreased, [and] the intimate feeling derived from sitting close to
the action will be reduced.”
27
Since the implementation of netting the grandstands directly
behind home plate, there have been thousands of suits brought by fans as the “limited protective
screening failed to eliminate spectator injuries.”
28
C. The Baseball Rule’s Debut
The “Baseball Rule” made its appearance in 1913 when a spectator at a Kansas City
professional baseball game was struck by a foul ball.
29
The spectator, S.J. Crane, bought a
grandstand ticket to see the baseball exhibition up close, but unlike reserved seating at today’s
sporting events, there were no assigned seats in the early era of professional baseball.
30
The
spectator had the option to sit behind the netting, which would protect him from foul balls and
other object flying into the stands, or in an unprotected area.
31
The spectator chose to sit in an
area that was unprotected, and he was hit by a foul ball.
32
The spectator brought suit against the
owners of the ballpark for their negligence in not screening the entire grandstand.
33
The court
described baseball and its risks as follows: “[T]he general public is invited to attend [baseball]
games [where] hard balls are thrown and batted with great force and swiftness, and that such
balls often go in the direction of the spectators.”
34
The court held that the stadium owners “fully
performed [their duty to provide] seats protected by screening from wildly thrown or foul balls
for the use of patrons who desired such protection.”
35
The court reasoned that the spectator
“voluntarily chose an unprotected seat and thereby assumed the ordinary risk of such position.”
36
In addition, the court articulated that “[one] who is offered a choice of two positions one of
which is less safe than the other cannot be said to be in the exercise of reasonable care if, with
full knowledge of the risks and dangers, he chooses the more dangerous place.”
37
“That is a
fundamental rule of the law of negligence.”
38
As a result of the Crane case, the Baseball Rule
was born.
24
Id. (quoting Hylton, supra note 19, at 488). (The minor league Milwaukee club was a part of the Northwestern
League).
25
Id.
26
Id.
27
Edward, 241 P.3d at 1092 (quoting GORMAN & WEEKS, supra note 18, at 132).
28
Id.
29
See Crane v. Kan. City Baseball & Exhibition Co., 153 S.W. 1076, 1077 (Mo. Ct. App. 1913).
30
Id.
31
Id.
32
Id.
33
Id.
34
Id. at 1095.
35
Id.
36
Id.
37
Id.
38
Id.
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DePaul J. Sports Law, Volume 16, Issue 1
Crane is the foundational case that lays out how ballpark owners can avoid foul ball
liability. The owners simply need to erect protective netting in the high-risk areas where foul
balls are usually hit. If the owner offers a reasonable amount of protected seats and spectators
have the opportunity to sit in those seats, the owner has performed his duty.
39
This appears to be
a practical conclusion because owners cannot be expected to screen or protect every seat in their
ballpark. If they were expected to do so, the enjoyment of watching a baseball game would be
ruined with obstructed views. Thus, the court in Crane left the spectators responsible for wisely
selecting their seats when attending a baseball game. If there were seats available behind the
protected screening area but the spectator chose to sit where his view would not be obstructed, a
ballpark owner could not be held liable for any injury because the fan assumed the risk of being
struck by a foul ball.
The court in Crane looked at multiple factors when deciding its holding. It took into
account Crane’s age, vision, knowledge of the game, number of games he had attended in the
past, and his opportunity to sit in the protected area. This case was also decided at a time where
there was no reserved seating. Spectators would sit in the ballpark based on a first-come-first-
serve basis. As a result, the 1913 outcome of Crane may come out differently today. In the
current era, fans can purchase tickets with assigned seating. Spectators can buy tickets online
where they can select particular seats that are available. In addition, these websites, where tickets
are sold, include an approximate view from those seats.
40
Thus, ticket purchasers are able to see
if their view will be obstructed by any netting or ballpark pillars.
41
Buyers are also able to
determine which parts of the ballpark become blind spots from their assigned seats.
However, the biggest problem with the Crane decision in today’s era is that spectators
may not have the option to sit behind protected screening. First, the seating area that has
protective netting are usually the most expensive tickets at the ballpark.
42
This includes seats
behind home plate and the dugouts. This leaves buyers with what might seem as the only option
to purchase tickets down the first and third base line, where most foul balls are hit. Thus, while
spectators may have a choice to sit in a protected area, it may not be economically feasible for
all. Second, a lot of seating is occupied by season ticket holders.
43
The big purchasers are
corporations, which bring its clients to games for business rapport building.
44
Again, these seats
are usually in the popular areas, which are behind home plate and the dugouts. This leaves very
limited seats available for other or infrequent spectators. Thus, if there are no protected seats
available to purchase, fans are forced to sit further down the base lines or in the outfield where
there is no protective screening. Finally, if the spectators sit in a section that has protected
screening, they are still at risk of being struck with a foul ball. Many of the foul balls go over the
screens. In addition, the screening does not properly protect spectators seated in the upper decks
39
See id.
40
TICKPICK, Chicago Cubs vs. St. Louis Cardinals, https://www.tickpick.com/buy-chicago-cubs-vs-st-louis-
cardinals-tickets-wrigley-field-9-22-19-3AM/3677680/ (last visited Nov. 29, 2018).
41
Some of the old stadiums, such as Wrigley Field, have pillars that obstruct the spectators view. Tyler Perkowitz,
See Every Pole at Wrigley Field (And Find Out How to Avoid Them), R
ATE YOUR SEATS (Feb. 13, 2020),
https://www.rateyourseats.com/blog/cheap_seats/location-of-every-pole-at-wrigley-field-and-how-to-avoid-them.
42
Id.
43
Nathan Hubbard, The End of Season Tickets, THE RINGER (Aug. 16, 2017),
https://www.theringer.com/nfl/2017/8/16/16147716/season-tickets-end-secondary-sellers.
44
Robert Tuchman, How Corporate Hospitality Has Become a Major Part of the Sports Business, FORBES (Jun. 10,
2015).
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DePaul J. Sports Law, Volume 16, Issue 1
behind home plate or the dugouts. In fact, fans seated behind home plate in a high numbered row
are also at risk as the netting is not erected high enough to prevent all foul balls from entering the
stands.
45
Therefore, because professional baseball allows spectators to purchase seats for its
exhibitions, the Crane decision might come out differently today. However, there are still factors
to consider when the spectator chooses not to sit behind protected screening, whether it is due to
the availability of seats, preference, or price.
Just a year after the Crane case, another foul ball case was decided by the same court. In
Edling v. Kansas City Baseball & Exhibition Corporation,
46
a fan bought a ticket to the game
and decided to sit behind home plate where there was protected screening.
47
However, during the
game, a foul ball passed through a hole in the netting, which struck and broke the plaintiff’s
nose.
48
The spectator sued the owner of the ballpark, and the court held that the owner of the
ballpark was liable for negligence.
49
The court reasoned that “[i]t was the duty of the [owner] to
exercise reasonable care to keep the screen free from defects and if it allowed it to become old,
rotten and perforated with holes larger than the ball, it did not properly perform its duty.”
50
Therefore, because the owner failed to provide sufficient screening in the area most exposed to
foul balls, it cannot avoid liability with the application of the Baseball Rule.
D. The Duty Test
Since the decisions in Crane and Edling, there have been thousands of foul ball cases,
and the Baseball Rule has been carried out consistently. However, one of the most cited cases
regarding the Baseball Rule is Akins v. Glens Falls City School District.
51
Akins was the first
case where the Court of Appeals in New York
52
defined what the duty of care is for a “proprietor
of a baseball field to its spectators.”
53
In Akins, the spectator arrived at a high school baseball exhibition while it was in
progress and decided to watch behind the “three-foot fence along the third base line.”
54
As the
game progressed, she was hit by a foul ball, and she sued the City School District for “failing to
provide safe and proper screening devices along the base lines of its field.”
55
There was seating
45
The first photograph in the following link reflects how some ballparks have low protective netting behind home
plate. Vinny Messana, What’s The Best Stadium to Visit This Summer?, A
XCESS BASEBALL (Dec. 31, 2017),
https://www.axcessbaseball.com/2017/12/31/whats-best-stadium-visit-summer/.
46
168 S.W. 908 (Mo. Ct. App. 1914).
47
See id. at 908.
48
See id.
49
See id. at 908-09.
50
Id. at 910.
51
424 N.E.2d 531, 534 (N.Y. 1981).
52
The Court of Appeals is the highest court in the state of New York.
53
Akins, 424 N.E.2d at 533.
54
Id. (The baseball diamond had a backstop 60 feet behind home plate, and it was 24 feet high and 50 feet wide. Id.
at 532. The diamond also had small fences running down the first and third base lines, approximately 60 feet behind
[the bases]. Id. The spectator was situated 10 to 15 feet from the end of the backstop and 60 feet from home plate.
See id.).
55
Id. (The issue presented at the trial level was “whether [a proprietor of a baseball field], having provided
protective screening for the area behind home plate, is liable in negligence for the injuries sustained by a spectator as
a result of being struck by a foul ball while standing in an unscreened section of the field.” Id. at 327.).
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DePaul J. Sports Law, Volume 16, Issue 1
behind the backstop, but there was no proof that the seats were filled.
56
According to the Court of
Appeals, “the critical question becomes what amount of screening must be provided by an owner
of a baseball field before it will be found to have discharged its duty of due care to its
spectators.”
57
At the trial court level, the jury found in favor of the spectator.
58
Damages resulted
in $100,000, and the jury determined that the school district was 65% at fault while the spectator
was 35% at fault.
59
At the Appellate Division, the case was affirmed. However, the Court of
Appeals reversed the order of the Appellate Division.
60
When the case appeared in front of the Court of Appeals, the court considered how other
jurisdictions addressed the question presented.
61
The Court of Appeals decided to follow trend of
the other jurisdictions, and it adopted the majority rule – “in the exercise of reasonable care, the
proprietor of a ballpark need only provide screening for the area of the field behind home plate
where the danger of being struck by a ball is the greatest.”
62
The court added that “such
screening must be 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.”
63
The
court reasoned that “an owner of a baseball field is not an insurer of the safety of its
spectators.”
64
Rather, like any other owner or occupier of land, it is only under a duty to exercise
‘reasonable care under the circumstances’ to prevent injury to those who come to watch the
games played on its field.”
65
Justice Jasen further explained that “due care on the part of the
owner [does not] require that the entire playing field be screened. [M]any spectators prefer to sit
where their view of the game is unobstructed by fences or netting and the proprietor of the
ballpark has a legitimate interest in catering these desires.”
66
The Akins case changed the narrative of foul ball decisions in the courtroom. The Court
of Appeals found it inappropriate to follow the trial and appellate court in conducting a
comparative fault scheme. Instead, the court looked at the issue as a duty test. Although it
adopted the majority rule on the issue, it clearly defined the scope of an owner’s duty to provide
protective screening for its spectators. However, the facts of this case were related to a high
school baseball game, which usually has minimal seating. Even in this case, it was not
determined whether there were any available seats for Ms. Akins behind the home plate
backstop. If there were not any seats available, spectators would be forced to stand on the fence
going down the base lines to watch the game. In cases where there is not enough seating in the
56
See id.
57
Id. at 533.
58
See id.
59
See id.
60
See id.
61
(Specifically, it looked at three possible scopes for the owner’s liability: (1) “the 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;” (2) “a proprietor of a baseball field need only screen as many seats as may reasonably be expected to be
applied for an ordinary occasion by those desiring such protection;” and (3) “the owner must screen the most
dangerous section of the field – the area behind home plate – and the screening that is provided must be sufficient
for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion.” Id. at
534.).
62
Akins, 424 N.E.2d 533.
63
Id.
64
Id.
65
Id. (quoting Basso v. Miller, 352 N.E.2d 868, 872 (N.Y. 1976)).
66
Akins, 424 N.E.2d at 533.
153
DePaul J. Sports Law, Volume 16, Issue 1
protected areas, should spectators be liable for the owner’s failure to provide enough seats or
screening in additional sections of the ballpark? Courts cannot hold the owner’s liable for
satisfying every spectator’s needs, but this issue raises questions about the Baseball Rule.
Akins is the most recent precedent for New York foul ball cases. However, would it still
be considered good law if Todd Frazier’s victim filed suit against the Yankees? Because the little
girl’s father never filed suit, Akins remains, to this day, the law in New York for foul ball cases.
Thus, the Baseball Rule is alive and well in New York.
The Akins case has become one of the most popular case cited for foul ball suits.
67
Since
Akins, the courts have remained consistent with its ruling. However, several courts have handled
the issue
68
differently. These courts decide not to adopt the Baseball Rule.
69
For the owners to
perform their duty and be free from liability, is it enough for them to simply erect a sufficient net
behind home plate?
The Baseball Rule from 1913 and the Akins case is outdated. Courts in the early era of the
Baseball Rule made its decisions based on whether the spectator had an option to sit behind
home plate. This option is not of the same magnitude as it was back in 1913 when you would pay
fifty cents to enter the ballpark and sit wherever you desired. Now, there is reserved seating, and
each seat is priced differently based on where it is located in the ballpark.
70
In addition, the
protected seats are the most expensive.
Recently, courts have made its rulings based on whether the owner provided the
minimum protective screening in the greatest zone of danger – behind home plate. However,
most foul balls do not hit the screen behind home plate. In today’s game, the pitching is so fast
that when a player hits a foul ball, it surpasses the netting, thus going into the crowd at high
speeds. Thus, if behind home plate is in fact the most dangerous section, the owners should erect
the screen significantly higher or angle it, so it does not allow foul balls to go over the netting.
Courts are also basing its decisions on whether the screening is sufficient to provide protection
for as many reasonably expected spectators desiring to sit behind netting. While the majority of
spectators prefer not to have their view obstructed by a screen, there are other fans that would
feel more comfortable sitting in a protected area. Again, this might not always be possible based
on the demand and cost for those seats. Thus, this type of reasoning should not be included in the
court’s analysis because it is virtually impossible to determine what reasonable number of
spectators would desire a seat behind protective netting.
Finally, the court in Akins also reasoned that “an owner of a baseball field is not an
insurer of the safety of its spectators.”
71
However, from an objective standpoint, the owners are
in the hospitality business. The goal for owners is to make a profit. Again, all of the owners’
profits are derived from the fans. Baseball is a spectator sport, and it would not generate the
67
A search on Lexis would reveal that the case has been cited by 438 other authorities. (last visited Nov. 29, 2018).
68
(Whether [a proprietor of a baseball field], having provided protective screening for the area behind home plate, is
liable in negligence for the injuries sustained by a spectator as a result of being struck by a foul ball while standing
in an unscreened section of the field. Akins v. Glens Falls City School Dist., 424 N.E.2d 531, 532 (N.Y. 1981)).
69
Rountree v. Boise Baseball, LLC, 296 P.3d 373 (Idaho 2013); Lowe v. Cal. League of Prof. Baseball, 65 Cal.
Rptr. 2d 105 (Cal. Ct. App. 1997); Coronel v. Chicago White Sox, Ltd., 595 N.E.2d 45 (Ill. App. Ct. 1992); Yates v.
Chicago National League Ball Club, Inc., 595 N.E.2d 570 (Ill. App. Ct. 1992).
70
See TICKPICK, supra note 40.
71
Akins, 424 N.E.2d at 533.
154
DePaul J. Sports Law, Volume 16, Issue 1
revenue that it does without the fans. The majority of the owners’ profits derive from TV deals,
advertising, team apparel, concessions, tickets, etc. All of these features would not be relevant
without the fans. The fans are the ones who watch the games on TV, and TV deals are generated
by viewers and attendance at ballparks. The advertisements in the ballpark are for the fans. The
team apparel, concessions, and tickets are all bought by the fans. Thus, the owners would not be
able to make a profit without its spectators. Being in the hospitality business includes providing
safety for its patrons. At a baseball game, baseballs and bats can strike a fan in many areas of the
ballpark. Not only are foul balls a concern, but players also throw the ball at an extremely fast
speed to get the runner out at a particular base. Spectators sitting behind first and third base are
in line with the infielders throw to those respective bases. There have been many occasions
where a ball is thrown too high into the stands, or a ball might be thrown too short, which can
bounce into the bleachers at a high speed. In addition, when a batter loses his grip during his
swing, fans are at risk of being struck by a bat flying into the stands. Furthermore, when a bat is
broken from contact with the ball, small pieces of the wooden bat can end up in the stands or
even fly between the screen netting and strike spectators. There are many ways in which a
spectator can get injured at a baseball game. Therefore, the rationale that “owners of baseball
fields are not insurers of the safety of its spectators” is inconsistent with reality.
While the owners cannot provide screening for all seats in their ballpark, they are still
responsible for the safety of their spectators. In fact, owners should take pride in providing safety
measures for their fans as the spectators are the ones who pay the bills. Not to mention that these
safety measures can alleviate owners from liability. Providing safety on behalf of the owners is
very crucial because the injuries that occur at the ballparks are not minor. Baseballs and bats fly
into the stands at very high speeds. Thus, when the spectator is struck by an object, the impact is
severe, and the owners can be on the hook for millions of dollars.
III. DIVERGENCE FROM THE BASEBALL RULE
A. Jurisdictional Preference
From baseball’s earliest foul ball cases, the legal theory underlying the Baseball Rule has
been the spectators’ “assumption of risk and contributory negligence.”
72
The courts have
rendered its decisions based on the spectator’s knowledge of the game, choice to sit in the
protected or unprotected area, and the stadium owners providing sufficient netting in the high
risk danger zones – behind home plate.
A recent case that did not follow the Baseball Rule is Rountree v. Boise Baseball.
73
The
spectator, Rountree, attended a Boise Hawks baseball game, and the Hawks stadium has a unique
layout.
74
It has multiple areas including the Viper section, the Hawks Nest, and the Executive
72
Id. at 532. (quoting Quinn v. Recreation Park Asso., 46 P.2d 144, 145 (Cal. 1935)).
73
296 P.3d 373 (Idaho 2013). (In the Rountree case, the spectator took his family to a Boise Hawks baseball game.
Rountree, [the spectator], has been a Boise Hawks ticket season holder for over 20 years. Id.).
74
See id. at 375; see also CHARLIE’S BALL PARKS, Boy, oh, Boise!, http://www.charliesballparks.com/st/ID-Boise-
Memorial.htm (last visited Nov. 29, 2018); Boise Hawks Stadium,
WRIGHT BROTHERS THE BUILDING COMPANY,
http://www.wbtbc.com/portfolio_page/boise-hawks-stadium/ (last visited Nov. 20, 2018).
155
DePaul J. Sports Law, Volume 16, Issue 1
Club.
75
Rountree brought his family to the Executive Club, and while “he was talking to another
spectator, he “stopped paying attention to the game.”
76
During that conversation, “Rountree
heard the roar of the crowd and turned his head back to the game.”
77
He was struck by a foul
ball, and as a result, lost his eye.”
78
Due to the injury, Rountree filed suit against Boise Baseball and the owner of Memorial
Stadium.
79
“The district court was unable to adopt the Baseball Rule [on behalf of the
defendants] because it claimed that the legislature knows how to define the scope of duties owed
in the case of particular high risk businesses, and that public policy decisions must be made by
the legislature, not the courts.”
80
The district court reasoned that “until the legislature intervenes
baseball stadium owners will be held to the standard applicable to all business owners – that
being a general duty to exercise ordinary care to prevent unreasonable, foreseeable risks of harm
to others.”
81
Thus, although the district court “found there may be a good reason to adopt the
[B]aseball [R]ule, it declined to do so.”
82
However, the “district court granted permission for the
[defendant] to appeal its decision, and ultimately, Boise Baseball appealed.”
83
There were two issues on appeal: (1) “[whether this court] [s]hould adopt the “Baseball
Rule,” which limits the duty owed by stadium operators to spectators injured by foul balls; and
(2) [whether] primary implied assumption of risk a valid defense in Idaho”
84
The Supreme Court of Idaho explained that “despite the district court’s conclusion that
only the [l]egislature could adopt the Baseball Rule, it is also within this Court’s power to do
so.”
85
The court held that “even though the court may have the power to adopt … the Baseball
Rule, which limits the duty of a business owner, we decline to do so here. We find no compelling
public policy requiring us to do so.”
86
The court reasoned that the “rarity of [this incident]
weighs against crafting a special rule. There is no history of accidents that we can look to, and
draw from, to sensibly create a rule.”
87
“Furthermore, Boise Baseball has not provided any other
broader statistical evidence regarding the prevalence of foul ball injuries in general, and –
75
See id. (The Viper section is an area for the fans to watch the exhibition behind a net that goes 30 feet high. See id.
The Hawks Nest is a “dining area along the third base line,” which is protected by “vertical and horizontal netting.”
Id.).
76
See id. (The Executive Club is at the top of the stadium in line with third base. See id. “The Executive Club,
which is only protected by horizontal netting, is one of the only areas in the whole stadium not covered by vertical
netting.” Id.).
77
Id.
78
Id.
79
See id. (Rountree also filed suit against fifteen other defendants. Rountree alleges that the owner’s negligence
caused the loss of his eye. See id. Boise Baseball moved for summary judgment, alleging that the court “should
adopt the Baseball Rule, which limits the duty of stadium operators to spectators hit by foul balls[.]” Id. Boise
Baseball also argued that Rountree impliedly consented to the risk of being hit by a foul ball.” Id. The district court
denied these motions. See id.).
80
Id.
81
Id. at 376.
82
Id.
83
Id. at 375.
84
Id.
85
Id. at 378.
86
Id. at 379.
87
Id.
156
DePaul J. Sports Law, Volume 16, Issue 1
assuming they are so prevalent – how varying stadium designs might prevent them.”
88
“Without
this information, drawing lines as to where a stadium owner’s duty begins, where netting should
be placed, and so on, becomes guesswork.”
89
The court thinks that these questions are best suited
for the legislature because “ it has the resources for the research, study and proper formulation of
broad public policy.”
90
The court also concluded that “primary implied assumption of risk is not a valid
defense.”
91
“Contributory negligence is not to be a complete bar to recovery; instead, liability is
to be apportioned between the parties based on the degree of fault for which each is
responsible.”
92
Thus, the court concluded that the proper standard, in Idaho, when resolving a
tort, is comparative negligence.
93
In addition, the court held that the “assumption of risk has no
legal effect as a defense [in Idaho], except in instances of express written or oral consent.”
94
Thus, because the court found no compelling public policy, it decided not to follow the
Baseball Rule. In addition, it found that when looking at a tort issue in Idaho, the proper standard
is comparative negligence.
Rountree is the first case in the modern era that does not follow the Baseball Rule. The
court declined to adopt the Baseball Rule simply because it does not want that rule to act as
precedent under Idaho law. The court explained that it could adopt the Baseball Rule, but it was
going to leave that decision for the legislature. Instead, the court decided to follow the standard
of a “general duty to exercise ordinary care to prevent unreasonable, foreseeable risks of harm to
others.”
95
Even under that standard, the court could have ruled the other way. The Executive
Club is located in an area where spectators are not expecting to encounter foul balls. The purpose
of Executive Clubs is for a handful of fans to attend, have an alcoholic beverage, and enjoy the
game from a bird’s eye or VIP view. Thus, under a general duty standard based on what was
reasonably foreseeable under the circumstances, Rountree’s case would not be one where he
would be expected to assume the risk of being hit by a foul ball. This demonstrates that a
spectator’s injury at a baseball game is not only subject to its facts, but it is also subject to which
state the injury took place. In addition, the court claims that there is no public policy argument
supporting the adoption of the Baseball Rule. However, there is a clear public policy argument.
Owners of baseball stadiums cannot be held liable for all the foul balls hit during the game. First,
owners cannot be liable because they cannot screen the entire stadium. Providing protective
netting for all the fans would diminish the purpose of going to watch a game live. Most fans do
not want to have their view obstructed when watching professional sports. Second, the majority
88
Id.
89
Id.
90
Id. (quoting Anstine v. Hawkins, 447 P.2d 677, 679 (Idaho 1968)).
91
Id. (For the implied assumption of risk issue, the court laid out the doctrine’s subcategories: primary and
secondary. Primary implied assumption of risk … means that the defendant was not negligent because there was no
breach, or no duty. Id. at 380 (quoting Lawson by & Through Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013,
1016 (Utah 1995)). Primary implied assumption of risk arises when “the plaintiff impliedly assumes those risks that
are inherently in a particular activity.” Id. (quoting Turner v. Mandalay Sports Entm't, LLC, 180 P.3d 1172 (Nev.
2008). Secondary implied assumption of risk “is an affirmative defense to an established breach of duty and as such
is a phase of contributory negligence. Id. (quoting Lawson, 901 P.2d at 1016)).
92
Id. (quoting Salinas v. Vierstra, 695 P.2d 369, 374 (Idaho 1985)).
93
See id. at 381.
94
Id. at at 380.
95
Id. at 377.
157
DePaul J. Sports Law, Volume 16, Issue 1
of baseballs end up in the stands during the game – there are more foul balls than hits in a game.
In addition, the majority of these foul balls do not remain on the field. Thus, for an owner to be
held liable for almost every time a ball is made contact with a bat would be extremely
burdensome. There were enough reasons for an Idaho court to adopt the Baseball Rule without
making any stretch in the law. For whatever reason, the Idaho Supreme Court does not want the
owners of baseball stadiums to be free from liability.
B. Increasing the Risks of the Game
There are also many other cases where a spectator at a baseball game gets struck by a
foul ball while he or she is distracted by events which are produced by the stadium owner or the
ball club. A great illustration of this scenario is in the case of Lowe v. California League of
Professional Baseball.
96
This is a second case that does not follow the Baseball Rule. In this
case, John Lowe attended a Rancho Cucamonga Quakes minor league baseball game.
97
The
Rancho Cucamonga Quakes, like most sport teams, have a mascot.
98
The mascot, Tremor, is a
seven-foot tall dinosaur with a long tail.
99
While the game was taking place, Tremor was
“performing his antics” to engage the crowd and young fans.
100
Tremor was positioned directly
behind Lowe’s seat, which was in an unscreened area down the left field line.
101
During
Tremor’s antics, his tail hit Lowe in the back of the head multiple times.
102
As a result, Lowe
turned around to notice what was hitting him.
103
When Lowe directed his attention back to the
game, he was struck, instantaneously, with a foul ball, which broke “multiple facial bones.”
104
Lowe filed suit against the “California League of Professional Baseball.
105
The issue before the
court was “whether the Quakes’ mascot cavorting in the stands and distracting [Lowe’s]
attention, while the game was in progress, constituted a breach of that duty, i.e., constituted
negligence in the form of increasing the inherent risk to [Lowe] of being struck by a foul ball.”
106
According to the law in California, “a defendant generally has no duty to eliminate, or protect a
plaintiff from risks inherent to the sport itself, but has only a duty not to increase those risks.”
107
The California Supreme Court concluded that a mascot is not integral to the sport of baseball.
108
The court reasoned that “Tremor’s antics and interference, while the baseball game was in play,
prevented the plaintiff from being able to protect himself from any batted ball and foreseeably
increased the risk to Lowe and above those inherent in the sport.”
109
Therefore, because the
96
65 Cal. Rptr. 2d 105 (Cal. Ct. App. 1997).
97
See id. at 106.
98
See id.
99
See id.
100
Id.
101
See id.
102
See id.
103
See id.
104
Id.
105
Id. Lowe also sued Valley Baseball Club, Inc., which does business as the Quakes. See id.
106
Id. (The trial court granted the defendants’ motion for summary judgment. See id. The trial court was persuaded
that “under the doctrine of primary assumption of risk, [the] defendants owed no duty to [Lowe], as a spectator, to
protect him from foul balls.” Id. The California Court of Appeal found that the trial level erred in granting the
defendants’ motion for summary judgment. See id.).
107
Id. at 109.
108
Id.
109
Id.
158
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mascot was distracting Lowe from the action of the game, the owner was held liable for
increasing the spectator’s risk of being hit by a foul ball.
However, unlike the Lowe case in California, other jurisdictions do not follow the same
holding. For example, an Ohio case, Harting v. Dayton Dragons Professional Baseball Club,
110
decided the mascot interaction did not “absolve Harting from the duty to protect herself from the
ordinary risks inherent in the sport.”
111
Again, this goes to show that the scope of the Baseball
Rule is dependent on which jurisdiction is hearing the case.
The Lowe decision is more practical than Harting. Mascots are representing the sport’s
team brand. The mascot is there to enhance fan engagement with the team and especially the
younger fans. Thus, the mascot for sport’s teams are acting as an agent of the owners for the
purpose of making a great experience for fans at the ballpark. In addition, the owner can control
or set limits to the mascot’s antics. The owner can choose at what points during the game the
mascot can interact with fans. The best way to avoid a potential Lowe liability case would be to
only allow the mascot to interact with fans between innings. This will ensure that all spectators
have the opportunity to be concentrating on the game and all potential hazards that may arise. In
this regard, owners would have complied with its duty to keep fans safe at the ballpark. A
plaintiff would not have a credible argument claiming that they were distracted if the mascots
antics took place when the game was at a stoppage. If an owner does not want to put limitations
on their mascots, he or she has the choice of not having a mascot. In fact, some sport franchises
have decided not to have a mascot because it distracts fans from the live action, which can lead
to an injury. Instead, owners have decided to engage fans through other streams of entertainment.
This may include cheerleaders or other activities taking place on the diamond. These
alternatives, however, all take place during stoppages in play. Therefore, this prevents distracting
spectators while the game is taking place. Thus, the Lowe decision demonstrates a proper duty
upon the owner not to increase the risks of the game. By having a mascot interact with fans while
the game is taking place, it distracts the fans while a ball or bat can be coming in the fan’s
direction at a high speed. In addition, the owner is the boss. He or she gets to decide the scope of
the mascot’s antics. When the owner has control over the mascot’s actions, he should be held
responsible for any injury that may occur due to the mascot’s antics. Thus, the only logical
conclusion is that courts should follow this rule – if an owner increases the risk of the game, he
should be held liable for the fan’s injury.
IV. LEGISLATION REVIVING THE BASEBALL RULE
A. Inked in Black Letter Law
In light of all these foul ball injuries, four state have created legislation that makes the
Baseball Rule black letter law. The state of Illinois made that decision based on two cases:
Coronel v. Chicago White Sox
112
and Yates v. Chicago National League Ball Club.
113
In the
Coronel case, the spectator was attending her first baseball game, and she sat three seats over
110
870 N.E.2d 766 (Ohio Ct. App. 2007).
111
Id. at 770.
112
595 N.E.2d 45 (Ill. App. Ct. 1992).
113
595 N.E.2d 570 (Ill. App. Ct. 1992).
159
DePaul J. Sports Law, Volume 16, Issue 1
from the edge of the protective netting.
114
As the fan put her head down to reach for her popcorn,
which was sold by the ballpark, she was struck in the face with a foul ball.
115
As a result, she
received a broken jaw and sued the owner of the ballpark for negligence.
116
The Appellate Court
reversed and remanded the trial court’s summary judgment decision because a question of fact
existed whether the Sox violated its duty to the spectator seated in the most dangerous part of the
ballpark.
117
The court reasoned that the Sox’s netting behind home plate was twenty-one feet
high and thirty-nine feet wide, which was one of the smallest in MLB.
118
Furthermore, the court
determined that although an owner might have “provided adequate netting for the most
dangerous part of the grandstands,” he has not necessarily “exculpated himself from further
liability.”
119
The owner must “exercise reasonable care to give a warning adequate to enable the
visitors to avoid the harm[.]”
120
In the Yates case, Dr. Yates bought tickets to a Chicago Cubs game thinking they were
behind home plate and protected screening.
121
During the game, his minor son was hit by a foul
ball, which caused blood to pour out of the child’s eye.
122
Yates sued the ball club for its failure
to provide adequate screening behind home plate and warn him about the dangers of foul balls.
123
The appellate court held that the trial court did not err in admitting expert witness’s testimony,
other foul ball injuries at the ballpark, or excluding the club’s evidence based on contractual
assumption of risk.
124
Like the Coronel case, this court reasoned that although an owner might
have “provided adequate netting for the most dangerous part of the grandstands,” he is not
necessarily “exculpated himself from further liability.”
125
After these two cases, the Illinois legislature decided to take the issue of foul ball cases
and the Baseball Rule into its own hands. The legislature created the Baseball Facility Liability
Act.
126
Under the limited liability section, it states:
The owner or operator of a baseball facility shall not be liable for
any injury to the person or property of any person as a result of that
person being hit by a ball or bat unless:
(1) The person is situated behind a screen, backstop, or similar
device at a baseball facility and the screen, backstop, or similar
device is defective (in a manner other than in width or height)
114
Coronel, 595 N.E.2d at 46.
115
See id.
116
See id. (The trial court granted summary judgment to the owner. See id.).
117
See id at 48.
118
See id.
119
Id.
120
Id. at 48-9.
121
Yates v. Chicago Nat. League Ball Club, 595 N.E.2d 570, 573 (Ill. App. Ct. 1992).
122
See id. (The child’s injury required surgery and a hospital stay for five days. Following the injury, the child
suffered from excruciating headaches and double vision. See id. at 573–74.).
123
See id. (The jury found in favor of Yates in the amount of $67,500 as a result of the ball club’s negligence. See id.
at 574.).
124
See id. at 579-82.
125
See id. at 582 (quoting Coronel v. Chicago White Sox, Ltd., 595 N.E.2d 45, 48 (Ill. App. Ct. 1992)).
126
745 ILL. COMP. STAT. 38/10 (2018).
160
DePaul J. Sports Law, Volume 16, Issue 1
because of the negligence of the owner or operator of the baseball
facility; or
(2) The injury is caused by willful and wanton conduct, in
connection with the game of baseball, of the owner or operator or
any baseball player, coach or manager employed by the owner or
operator.
127
This statute significantly limits the owner’s liability and strengthens the Baseball Rule in Illinois.
For the Act’s first prong, anyone who is not seated behind protective netting does not have a
defense. Thus, courts in Illinois would not be able to provide the same rationale as the court did
in Lowe. This statute also eliminates the possibility of analyzing other factors such as the
spectator’s age, complying with league screen standards, spectator’s seat location, spectator’s
knowledge of the game, spectator’s first game, stadium design, and entertainment interference.
The first prong is identical to the Baseball Rule. All that is required of the owner is to erect
sufficient netting behind the most dangerous area of the ballpark. If a spectator is sitting behind
the netting, he or she cannot have a claim against the owner, unless the net is in some way
defective (not accounting for width and height). This statute eliminates all the progress the courts
have made in trying to veer away from an outdated Baseball Rule. This statute is also unclear
about what constitutes “situated behind a screen.”
128
If a spectator is sitting directly behind or
within the vicinity of home plate, this statute has no flaws because all aspects of the screen will
protect him from line drive foul balls. However, if the spectator is situated down the baselines,
depending on the seat’s angle to the netting and trajectory of the baseball, he may not be
considered to be protected by the screen. Therefore, because there are so many aspects to
consider, a factor test is more suitable to analyze causes of actions relating to foul balls.
B. The Baseball Rule in 2018
While Pennsylvania does not have the Baseball Rule inked in its legislation, the Baseball
Rule is floating around the Wendy Camlin case. Camlin was attending a Pittsburgh Pirates
baseball game, and her seat was in the first row behind home plate, which is screened with
protective netting.
129
As Camlin was walking in the first row, behind home plate, to get to her
assigned seat, a foul ball hit the netting, which caused the screen to extend, and the ball and the
net struck Camlin in the head.
130
Camlin sued Major League Baseball and the Pittsburgh
127
Id. (Under the Act, the term ‘Baseball facility’ “means any field, park, stadium, or other facility that is used for
the play of baseball (regardless of whether it is also used for other purposes) and that is owed or operated by an
individual, partnership, corporation, unincorporated association, the State or any of its agencies, officers,
instrumentalities, elementary or secondary schools, colleges, or universities, unit of local government, school
district, park district, or other body politic and corporate.” Id. § 5. In addition, the term ‘Baseball’ “includes the
game of baseball or softball, including practice, regardless of whether it is played on a professional or amateur basis
and regardless of whether it is played under an organized or league structure or outside of any such structure.” Id.
Furthermore, the term ‘Wilful and wanton conduct’ “means a course of action which shows an actual or deliberate
intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the
safety of others or their property.” Id.).
128
Id. § 10.
129
Jairus Miller, Fan Hit in Head at Pirates/Cubs Game, YOUTUBE (Apr. 20, 2015),
https://www.youtube.com/watch?time_continue=8&v=syXi7MNNikE.
130
See id.
161
DePaul J. Sports Law, Volume 16, Issue 1
Pirates.
131
However, MLB was dismissed shortly after.
132
In addition, the plaintiff’s joined
Promats Athletics (Promats), the company that owns and installed the netting at PNC Park.
133
Before trial began, the Pirates settled with the Allegheny County Sports and Exhibition Authority
for an undisclosed amount.
134
It is unclear why the Pirates settled with the county instead of
Camlin directly. Regardless, the only remaining defendant is Promats.
135
Camlin’s attorney
intends to argue that the screen was defective because it “did not do what it was supposed to do,”
which is to shield spectators from foul balls behind home plate.
136
This case is similar to the
Edling case because although the protective screening did not have any holes, it is still
considered defective netting for not properly protecting spectators. Courts must be cautious when
determining whether the screening is sufficient based how much resistance it has. If the screen is
too tight, it will bounce directly back onto the field, potentially striking players or umpires at a
fast speed. However, if the screen is too loose, spectators in the first row behind the protective
netting are in danger of getting hit by a foul ball, like Wendy Camlin. As a result of her injury,
she “continues to have headaches, tinnitus, vertigo, confusion, neck and shoulder pain and
memory loss.”
137
It took Camlin six month to return to work on a part-time basis until she was
terminated.
138
She has not worked since.
The Camlin case is one where the owner increased the risk of the game. The purpose of
protective netting is to block or intercept foul balls from striking spectators. Camlin was seated
in the high-risk danger zone – behind home plate. She is arguably the most vulnerable spectator
at the ballpark because she has the least amount of time to react to a foul ball. However, when
spectators sit behind protective netting, even in the first row, he or she does not expect to be hit
by a foul ball or for the ball to come through the screen. Thus, Camlin could not have assumed
any risk once she was in the first-row walking to her seat. In addition, the ushers allowed Camlin
to walk down to her seat while the game was in action. While the employee may have allowed
Camlin to enter the stands before the first pitch was thrown, ushers should be aware of when the
game is about to start so accidents like these do not happen. It will be interesting to see how the
Camlin case plays out, but it would be surprising if a court found in favor of Promats.
V. THE FACTOR TEST
The Baseball Rule is not applied or used consistently within the United States. Baseball is
played in all fifty states, and it is not played differently amongst those states. Thus, why should
its laws be applied differently for the same or similar set of circumstances in different
jurisdictions? The Baseball Rule is useful but only to a certain degree – an owner cannot be held
liable for every foul ball that ends up in the stands. However, the owner needs to be held liable
based on if it provides the necessary protection to ensure spectator safety at the ballpark. The
Baseball Rule or lack thereof should be adopted or applied identically in all cases subject to the
131
Paula Reed Ward, Trial Begins Over Errant Foul Ball at Pirates Game, PITT. POST-GAZETTE, Nov. 16, 2018.
132
See id.
133
See id.
134
See id.
135
See id.
136
Id.
137
Id.
138
Id.
162
DePaul J. Sports Law, Volume 16, Issue 1
facts of the incident. This includes providing a factor test to determine whether the owner should
be held liable for foul balls injuring his or her spectators. The factors include: (1) whether the
owner erected protective netting subject to the league’s standards; (2) whether the spectator has
knowledge about the game and the risk of foul balls; (3) whether the spectator has ever attended
a baseball game in the past; (4) where the spectator was seated; (5) the spectator’s age; (6)
whether the fan was distracted by the owner’s entertainment; and (7) the stadium’s design. While
these factors should be considered as a whole when the court is deciding whether to apply the
Baseball Rule, it is still important to go through each one individually.
First, leagues should provide its ball clubs a standard for erecting their netting. This can
be complex as each stadium has a different design. However, if a league were to have a set of
standards governing its protective netting, the courts should look to whether the owner was in
compliance with those standards. The court should then ask itself whether the injury would not
have occurred if the owner was obedient to the standards provided by the league. If the owner
could have prevented the spectator’s injury by following the league-imposed standards, the court
should refrain from applying the Baseball Rule.
Second, the spectator’s knowledge about baseball should be analyzed based on his or her
experience playing and watching the game, as well as the risks that are involved in being hit with
a foul ball. If the spectator is familiar with the game, the court may rely on the Baseball Rule.
However, if the spectator has little or no experience with the game and does not understand the
risks relating to foul balls, the court should refrain from applying the Baseball Rule. This factor
should be strongly considered along with whether the spectator has ever attended a baseball
game in the past.
Third, whether the spectator has ever attended a baseball game in the past should be
analyzed in two lenses – previous games attended and previous games attended where the
spectator was seated in the vicinity of foul balls. If the spectator never attended a baseball game
before the injury occurred, the court should be lenient toward the spectator and refrain from
applying the Baseball Rule. If the spectator has attended a baseball game in the past, the court
should then determine whether the spectator was familiar with the risk of foul balls from
previous attendances. For example, if a spectator was previously seated in a box seat or the
outfield, he or she may not truly understand the risks of sitting in the danger zones where foul
balls are often hit at high speeds. Like most things in life, sometimes people need to experience
something before they can truly understand the situation. The same can be true for foul balls. If a
spectator has never sat along the baselines, he or she may not truly understand the risks of foul
balls in that location. Thus, if a spectator was not familiar with the risks of foul balls although he
or she has attended a baseball game in the past, the court may decide not to apply the Baseball
Rule. This factor should be strongly considered along with the spectator’s knowledge of the
game.
Fourth, where the spectator was seated is a factor that has been considered by all courts
since 1913. If the spectator is seated in the section directly behind home plate, the owner should
not be liable for any spectator injury relating to objects leaving the field of play. However, this
analysis becomes complex for spectators who sit toward the end of the screen because, as
mentioned above, depending on the seat’s angle to the netting and trajectory of the baseball, it
might be difficult to determine whether the spectator was protected by the netting.
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Fifth, the spectator’s age can have serious consequences if he or she is a toddler or a
young child. Children are more at risk than adults because they simply do not think of the risks
associated with the game of baseball. Adults on the other hand, especially mothers, will usually
expect the worst in all situations. These adults would take precautionary measures or at least be
aware of the risks to prevent being injured. Therefore, if a spectator is young in age, there should
be more leniency toward the spectator, and a court should refrain from applying the Baseball
Rule. This factor should be strongly considered along with the spectator’s knowledge of the
game.
Sixth, entertainment interference has been the only scenario that has held the owner liable
for spectator foul ball injuries other than defective screening. However, for this factor, the
owner’s liability should not only be with regard to the spectators situated behind a screen, it
should include all spectators in the ballpark. The reasoning behind this is that if there is
entertainment interference, which is conducted under the owner’s business, the act takes away
the spectator’s attention from the game. Thus, the interference increases the risk of the spectator
being hit by a foul ball. This factor should include the analysis of both line drive and pop-up foul
balls because, regardless of the spectator’s reaction time, his or her attention has veered away
from the game as a result of one of the owner’s agents. The owners should assume this risk in the
event to make a profit while the game is on-going. This factor should also be looked at for
spectator’s who are hit by a homerun. A non-exhaustive list of entertainment interference may
include mascots, cheerleaders, employees serving concessions, messages on the jumbotron, T-
shirt giveaways, etc. All of these examples are acceptable forms of entertainment, but for the
owner not to be held liable for spectator foul ball injuries, all of these must be performed during
a stoppage in play. In addition, the ushers should not allow spectators to walk to their seats while
the game is in action. Spectators are more focused on the uneven steps in stadiums, looking for
their row number, and then squeezing by a set of fans to get to their seats. Thus, if an usher
allows spectators to return to their seats while the game is on-going and the fan gets injured by a
foul ball, line drive or pop-up, the owner may be subject to liability.
Finally, the stadium’s design is extremely relevant to how screening should be erected at
the ballpark. Most stadiums and spectator seats are designed in the usual diamond shape.
139
However, there are some stadiums where spectator seats stick out of the ordinary diamond shape
and are close to the field of play.
140
These seats that are close to fair territory are in extreme
danger of being hit by a line drive foul ball. Stadiums of this design should consider netting those
areas in the outfield that stick out close to the first and third base lines. Thus, if a spectator was
hit in this area and it is unprotected, the court should not apply the Baseball Rule.
The court should not consider whether the spectator had time to react because the foul
balls being referred to are only with regard to line drives. If there was a pop-up foul ball, it is
assumed that the spectator had enough time to react and avoid being hit by the baseball.
However, this does not apply when the owner increases the risks of the game. It is not reasonable
for the owner to screen all sections of the ballpark. Therefore, if a spectator is sitting in an area
that has no protective screening, and he or she is struck by a foul ball, whether it is a line drive or
pop-up, the court may apply the Baseball Rule.
139
Jason Notte, 10 Most Luxurious Seats in Major League Baseball, THESTREET, Aug. 2, 2016,
https://www.thestreet.com/slideshow/13661373/1/10-most-luxurious-seats-in-major-league-baseball.html.
140
Fenway Park Seat Map, RED SOX, https://www.mlb.com/redsox/ballpark/seat-map (last visited Nov. 29, 2018).
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This factor test incorporates a comparative negligence analysis. The problem with the
Baseball Rule is that it is based on a whether the owner complied with his or her duty. However,
the factor test allows the court to embrace a comparative negligence scheme to establish a
percentage of fault for all the parties involved. Comparative negligence allows the court to
determine whether the spectator assumed the risk instead of reverting to contributory negligence
– a complete bar from recovery. In the United States, forty-five of the fifty states have a
comparative fault scheme.
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Thus, a strong majority of states have moved away from
contributory negligence and have veered to a comparative fault distribution. However, courts are
not following its jurisdiction’s negligence laws when determining assumption of risk for its foul
ball cases. This becomes a problem because the spectator’s chance of recovery is dependent on
where the injury occurred. If the injury occurred in a Baseball Rule jurisdiction, and it is a
comparative fault state, the plaintiff may still be barred from recovery.
There has been a lot criticism about the Baseball Rule, but the most recent pushback has
come from Nathaniel Grow and Zachary Flagel.
142
Grow and Flagel’s position is that the courts
should replace the Baseball Rule with a strict liability scheme, which would hold professional
baseball teams liable for spectators’ injuries.
143
Grow and Flagel believe a strict liability scheme
is the best solution because it “[forces] teams to internalize the cost of spectator injuries, thereby
best incentivizing them to implement the most economically efficient level of fan protection in
their stadiums.”
144
The problem with a strict liability scheme is that if the stadium owners wanted
to completely avoid liability, they would screen the entire ballpark. However, most fans do not
want to watch a game live with an obstructed view. Thus, owners are using a balancing test to
determine what areas of the stands should be screened to save themselves from liability while
considering the spectators’ experience and profit. A strict liability may be the proper scheme
from an economical standpoint but not a practical one. The best solution is to follow and apply
the factor test because it analyses and takes into account comparative fault on behalf of the
owner and the spectator.
VI. CONCLUSION
The sports industry is driven by money. The sport market in North America is expected
to reach $73.5 billion in revenue by 2019.
145
The majority of this revenue is a result of media
rights.
146
However, the media rights are not driving the sport industry. The fans are. Professional
and amateur exhibitions are products for the consumers. The four major professional leagues, the
National Football League, Major League Baseball, the National Basketball Association, and the
National Hockey League, are spectator sports. The National Collegiate Athletic Association is no
different. While the sports industry would not be as rich as it is today without its media rights, it
would not be what it was today without its fans. The spectators are the ones willing to pay to
141
Contributory Negligence/Comparative Fault Laws in All 50 States, MATTHIESEN, WICKERT & LEHRER, S.C. (last
updated Feb. 14, 2018).
142
Nathaniel Grow & Zachary Flagel, The Faulty Law and Economics of the “Baseball Rule”, 60 WM. & MARY L.
REV. 59 (2018).
143
See id. at 111.
144
See id. at 68.
145
Darren Heitner, Sports Industry to Reach $73.5 Billion by 2019, FORBES, Oct. 19, 2015.
146
See id.
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experience the product that each league sets up on display. Without interest from the market,
there would be no TV rights for the sports leagues. These leagues have become popular through
fan interest. Although the media rights are a big portion of the league and team revenues, the
fans are driving their success. Thus, because the fans are arguably the most important piece to
the sports industry’s success, leagues and teams should be concerned about fan protection at their
sporting events. It is also within the owner’s interest to protect its fans because it will prevent
them from giving up millions of dollars in potential foul ball suits.
If the owner is held liable for the spectator’s injuries, for whatever reason decided by the
court, the owner should be responsible for the spectator’s short and long-term medical expenses.
This shall include immediate expenses for the spectator to recover from his and her injury, but it
should also include potential disabilities in the future. Some fans lose an eye, break facial bones,
and others, who are hit in the head, cannot return to work. Thus, the court should consider
potential lost wages and other damages that may be applicable.
Therefore, because the Baseball Rule is outdated, courts should rely on the factor test.
Times have changed since the Baseball Rule was first seen in 1913. The foul ball danger zone is
bigger than it used to be, spectators are seated closer to the action, and baseballs fly into the
stands at higher speeds. This factor test puts the courts in the best situation to analyze the case
based on the totality of the circumstances instead of whether the owner complied with his duty
by erecting a sufficient net where most foul balls are hit. Whether the owner increases the risks
of the game is a crucial issue to these foul ball cases. If this is the case, owners should be held
liable for the spectator’s injuries. In addition, the factors should be considered as a whole. By
going through each factor, the court should have a better idea of whether to hold the owner liable
for the spectator’s injuries. These factors consider the most crucial issues when analyzing
spectator foul ball injuries.
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