If a Foul Ball Hits You, Does the Team Owe You Anything?

© RHONA WISE/epa/Corbis

On August 29, former Phillie and current Florida Marlins infielder Greg Dobbs hit a kid in the face with a line drive foul ball while playing the Mets at Citi Field.

The 12-year-old fan, from Long Island, suffered from severe internal bleeding, had to have had two blood transfusions and four CT scans, and spent five days in the intensive care unit at the hospital.

Dobbs visited the kid in the hospital, gave him the glove used in the game and a signed bat, and called the boy’s family several times to check on his condition. This is all well and good. But shouldn’t the team or Major League Baseball be doing a little more—like covering the kid’s medical bills?

According to the law, no.

While being a baseball fan can be a dangerous prospect*, in the last few decades the courts have pretty consistently come down in favor of the teams, leagues, and stadiums when it comes to lawsuits regarding spectator injuries.

Most of these cases get dismissed under the doctrine of assumption of risk, a defense in tort law that prevents a plaintiff from recovering damages if the defendant can show that the plaintiff voluntarily and knowingly assumed the risks inherent to the activity they were participating in when they got hurt. In the case of baseball, this means that spectators are usually considered to be assuming the risk that a ball, bat, glove or outfielder may leave the field and hit them.

It’s only when “the plaintiff introduces adequate evidence that the amusement facility in which he was injured deviated in some relevant respect from established custom will it be proper for an ‘inherent-risk’ case to go to the jury,” the Pennsylvania Supreme Court explained in one case.

This wasn’t always the norm, though, and from the dawn of major league sports up until the mid-20th century, injured fans usually had the law on their side.

Game Change

In the latter half of the last century, more and more cases were decided in the favor of the teams and leagues. The judges’ decision in the 1986 case of Neinstein v. Los Angeles Dodgers sums up the reasoning behind the shift:

“As we see it, to permit plaintiff to recover under the circumstances here would force baseball stadium owners to do one of two things: place all spectator areas behind a protective screen thereby reducing the quality of everyone's view, and since players are often able to reach into the spectator area to catch foul balls, changing the very nature of the game itself; or continue the status quo and increase the price of tickets to cover the cost of compensating injured persons with the attendant result that persons of meager means might be 'priced out' of enjoying the great American pastime. To us, neither alternative is acceptable. In our opinion it is not the role of the courts to effect a wholesale remodeling of a revered American institution through application of the tort law.”

These days, to cover their butts on the assumption of risk, most, if not all, leagues, teams and stadiums now place disclaimers and assumption of the risk statements on the back of each ticket. There are signs around the stadium, and announcements are made before and during games. Even with this precaution taken, having to go to court in the first place is a drain on time, energy and money. Teams try to further insulate themselves from lawsuits by taking precautions—like having ballgirls hand used balls to fans instead of lobbing them.

Meanwhile, in the courts, determining what constitutes risks “inherent to the game” is the main issue that has to be decided. The courts have long held that the team is in the clear for a spectator struck by a batted ball, whether it happened during the course of the game or in pregame batting practice. But what about a broken bat?  Bat shards enter the seating areas less often than fouls, certainly, but it’s become increasingly common. Courts have found no fault on the defendant’s part in several cases.

What if You Were Buying Peanuts and/or Cracker Jack at the Time?

While judges have generally become more broad in their definitions of what constitutes common and inherent risks of the game, injuries that happen away from the field usually fall outside a fan’s assumed risks. For example, fans have sued and won lawsuits after being struck by an iron entrance gate (Murray v. Pittsburgh Athletic Co.), falling down a staircase, falling into a hole while going to a concession stand (Louisville Baseball Club v. Butler) and getting hit by a ball while getting refreshments.

If you want to learn more about the dangers of the great American pastime, check out Death at the Ballpark: A Comprehensive Study of Game-Related Fatalities, 1862-2007, a detailed catalog of deaths and fatal injuries that happened during the playing, officiating or watching of baseball – including a whole section on deaths by commotio cordis, awful–sounding concussions of the heart caused by balls hitting a particular spot in the chest at the exact moment between heartbeats.

* There’s no centralized tracking of spectator injuries, but one estimate given by people who study these sorts of things is 2,540 injuries per year nationwide. Another study estimated 35 injuries - by foul balls alone – per million spectators per year.

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October 3, 2011 - 7:30am
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