Summer of Law: Take Me Out to (but don’t knock me out at) the Ball Game

For many, enjoying a baseball game at the ballpark or on TV with family and friends is a favorite summer pastime.  Even minor league games in far-flung locations with entertaining team names and mascots provide otherwise lukewarm baseball fans counting the days until college/pro football begins with a few hours (and for the kids, mini-helmets full of ice cream) entertainment. Last weekend, my family enjoyed seeing the Scranton Willkes-Barr Railriders play the Lehigh Valley IronPigs—the first pitch also kicked off a relay-team marathon around the stadium’s perimeter with the goal of seeing which ends first, the marathon or the game (we didn’t stay long enough to find out).

Also, with the 2017 MLB All-Star game scheduled for tonight and after enjoying the Home Run Derby last night, today is the perfect time for a baseball-related Summer of Law post.  Tonight’s All-Star game also marks the 2nd anniversary of the filing of a proposed class-action lawsuit by two Oakland A’s fans, seeking to compel Major League Baseball to install additional netting along (and upwards to cover more than the first level of seating) the first and third-base line stands to protect spectators from foul balls.  One of the named plaintiffs- who sits in 2nd level- was sitting next to another fan who was hit by a foul ball.  The lawsuit was dismissed last November by the Court who ruled that the named plaintiff lacked standing to maintain the lawsuit because alleging that they *may* get hurt at some point down the line when attending a game without additional protective netting in place is insufficient as a basis to proceed).

While this particular lawsuit was dismissed, there are still legal (and safety!) issues worth addressing.  First, when a fan enters a baseball stadium, among other legal transactions they enter into with the stadium (e.g. a ticket is a license to be present in the stadium, and like all licenses, can be revoked under certain circumstances which is what typically happens when a fan acts up and is removed from the stadium), fans also assume the risk that they may be injured by foul balls, broken (or whole) bats flying into the stands, etc.  Under what’s typically referred to as the “Baseball Rule” (subject of a future blog post coming soon!), stadium owners are not liable for injuries sustained by fans provided that there is some netting in place for a reasonable number of spectators.

However, legal liability considerations aside (a point that my first year of law school torts professor raised when overwhelmed with caselaw, we would myopically focus on only legal liability), business owners in general do not want people to get hurt.  The since-dismissed, proposed class-action lawsuit brought by A’s fans cited to a 2014 Bloomberg News study that 1,750 fans per year are injured at baseball games.  That’s a fair amount of people being injured.  Netting and screens are indeed installed in ballparks; however, stadium owners, teams and leagues are trying to balance safety with entertainment (e.g. views of the action with limited obstruction), which is not always so easy.  It’s also not so easy for fans to pay attention to each pitch (especially fans like me with 2 young sons who have many questions about the game and (many) requests for snacks) and when sitting close to the field (or at a minor league game, where nearly every seat is close), while fans certainly assume the risk and have the onus on them to pay attention, the consequences for not paying attention (or paying attention to the popcorn guy during an at-bat) could be severe.

While there’s no right answer or perfect solution, in May, New York City Councilman Rafael Espinal Jr. proposed a bill that would require Major and Minor League ballparks to install netting from home plate to the foul polls (so, the entire side of the field) to protect fans.  Councilman Espinal Jr. makes the argument in this article that “Businesses in NYC that fail safety inspections much make their establishment safe for the public right away.  Baseball should be no different.”

We will continue to follow this bill while its way through the City Council (with some opposition certainly ahead).  In the meantime (and in any event), when at the ballpark, definitely do your best to beware of foul balls!