United States: Is It Fair To Extend Liability To The Foul Poles?
The Baseball Rule And The Effects Of Increasing Protective Netting

On May 29, 2019, the Cubs played the Astros at Minute Maid Park.¹ During the game, a two year old girl was struck by a foul ball and sustained a fractured skull, a seizure, subdural bleeding, brain contusions, and brain edema.² Last year, on August 25, 2018, Linda Goldbloom, 79 years old, was struck by a 93 mph foul ball at Dodger Stadium.³ She died four days later.⁴ On September 20, 2017, a young girl was struck in the face by a 106 mph foul ball at Yankee Stadium that resulted in multiple facial fractures, brain bleeds, and the imprint of the ball's stitching on her forehead.⁵

Unfortunately, these stories appear to be happening with greater frequency, and have created headlines. The impact on those injured, the players who caused and witnessed the incident, and the spectators at large has been palpable. Both spectators and players alike have encouraged baseball clubs to increase netting to better protect spectators from the inherent risks of the game.⁶ Many point to the standards adhered to in Japan as the solution.⁷ Japanese stadiums require netting to extend to the foul pole at the end of the field and any approaching foul balls are announced via whistles and warnings from ushers in that area.⁸ For the seats that are unprotected, each spectator is provided a helmet and ball glove as they enter their section.⁹ Not all want the extra netting, however. Some spectators prefer to watch the game with an unobstructed view and oppose significant alterations to the protective netting.¹⁰

Since the inception of baseball, clubs and stadium owners have tried to balance spectator preference and experience with safety. Courts as far back as 1913 have acknowledged that "[b]aseball is not free from danger to those witnessing the game," but, despite the risks associated with public attendance, "a large part of those who attend prefer to sit where no screen obscures the view."¹¹ In fact, courts historically scoffed at the idea of screening in the entire stadium to virtually eliminate spectator injury, acknowledging that "the perils of the game are not so great as to require such extreme precaution."¹² The Baseball Rule emerged to balance club liability with spectators' desire for an unimpeded view

The Baseball Rule limits the liability of premises operators for injuries sustained by spectators that occur as a result of risks inherent to the game of baseball. As the Rule originally stood, clubs "were not insurers of the safety of spectators; but, being engaged in the business of providing a public entertainment for profit, they were bound to exercise reasonable care, i.e., care commensurate to the circumstances of the situation to protect the patron against injury."¹³ In essence, the Baseball Rule mirrored many states' black letter premises liability law or rationale. Thus, the duty of clubs under the Baseball Rule was to "provid[e] seats protected by screening from wildly thrown or foul balls, for the use of patrons who desired such protections."¹⁴ Because it is common knowledge that foul balls occur, spectators that elected a seat outside of such protective netting "voluntarily placed themselves there with knowledge of the situation, and may be held to assume the risk."¹⁵ "One invited to a place 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."¹⁶

The Baseball Rule, as applied in recent cases, provides that "a ballpark operator that provides screening behind home plate sufficient to meet ordinary demand for protected seating has fulfilled its duty with respect to screening and cannot be subjected to liability for injuries resulting to a spectator by an object leaving the playing field."¹⁷ The modern day Baseball Rule is therefore often referred to as a "no duty" rule — so long as due care has been exercised to provide a reasonable number of screened seats, spectators who select seats outside of the screened area assume the risk of injury, any injury resulting to spectators is not caused by the negligence of the baseball club, and the risk itself is not considered an unreasonable risk, eliminating the duty to warn.¹⁸

However, a number of courts have held that the Baseball Rule "extends only to those risks that the home team is powerless to alleviate without fundamentally altering the game of spectator's enjoyment of it."19 Therefore, for the club to avail themselves of the Baseball Rule and absolve themselves of liability for a spectator's injury, the risk itself must be inherent to the game.²⁰ Any distractions caused by the club or stadium owner that take a spectator's attention away from the game or that causes an injury that the home team could have reasonably avoided without altering the game will open the club or stadium owner to liability for the spectator's injury. For example, in Coomer, a spectator was hit in the eye by a hotdog thrown by the Kansas City Royal's mascot.²¹ The Coomer Court found that there was nothing inherent to the game about the mascot's ritual hotdog toss, and the club could be held liable for Coomer's injuries.²² A court in California reached a similar decision where a mascot distracted a spectator by jostling and bumping the spectator from behind.²³ Though the spectator was injured by a foul ball which would ordinarily be an inherent risk of the game, the Lowe Court found that the club had a duty not to increase inherent risks, and the mascot's behavior did just that by distracting the spectator attention from the game.²⁴

Though the seats are ever closer, the balls ever faster, and the players ever stronger, the netting requirements at stadiums and the legal shield protecting clubs from liability have remained relatively constant.²⁵ Prior to the 2016 season, Major League Baseball (the "MLB") recommended that the protective netting be extended by all clubs.²⁶ However, it was not until February 2018 that all 30 clubs agreed to extend their protective netting to the end of the dug outs.²⁷ The Major League Baseball Players Association has called for netting from foul pole to foul pole twice: once in 2007 and again in 2012.²⁸ However, the MLB states that it would be difficult to implement the foul pole netting requirement universally given the different designs and specifications of each club's stadium, and therefore, also the clubs to determine the appropriate amount of safety netting.²⁹ At this time, initiated by the Chicago White Sox, at least eleven (11) teams have announced that each will extend protective netting to or near the outfield foul poles: the Atlanta Braves, Baltimore Orioles, Chicago White Sox, Houston Astros, Kansas City Royals, Los Angeles Dodgers, Miami Marlins, Pittsburgh Pirates, Texas Rangers, Toronto Blue Jays, and Washington Nationals.³⁰ News articles have also announced foul pole to foul pole netting creeping into Minor League Teams in the Class AAA Pacific Coast League, Low A Midwest League, Low A South Atlantic League, and American Association of Independent Professional Baseball.³¹

A consequence of the extension of the protective netting to the foul poles, however, will necessarily be the altered spectator experience. With netting extended to the foul poles, spectators will no longer be able to interact with the players as they had before. Foul balls will no longer be tossed from players to the eager young fan at the dugouts. Pregame autographed souvenirs will be more difficult to obtain. Selfies will be nearly impossible as the protective netting will interfere with the camera focal point. Derek Jeter's diving catch into the stands will be the last highlight of its kind. While spectators will be safer, the experience will inherently be different.

While the Baseball Rule is still very much in play, the changes to the protective netting requirements implemented by the MLB and by the clubs individually may impact the Court's application and interpretation of the Rule moving forward. Ultimately, these voluntary extensions could catch far more than foul balls. Whether a club has exercised due diligence and reasonable care in the amount of proffered protective netting and protected seats has been and remains a crucial part of the analysis when applying the Baseball Rule.³² As it stands, the Baseball Rule still hinges on the safety of the seating immediately behind home plate.³³ However, as clubs continue to voluntarily extend the netting further and further toward the foul pole, the Baseball Rule may become a thing of the past. If the legal standards of "due diligence" and "reasonable care" are commiserate with the modern-day netting standards, new duties and standards of care may be created. For example, the MLB cannot impose uniform netting standards for all clubs due to the individual configuration of each stadium, begging the question of whether the courts will take into consideration cost, budget, and feasibility when determining liability for individual clubs. Moreover, it is unclear how the court will apply newer standards to minor league clubs with smaller budgets, college stadiums or even recreational leagues and ball parks.

The courts have not reexamined the core principles of the Baseball Rule since its inception. As more and more injured spectators sue, the courts are provided with more opportunities to revisit the rule and reevaluate what amount of protective seating and netting is reasonable. As the courts examine what is and isn't due diligence or a reasonable number of protected seats, inherently, the courts will also reanalyze the liability of the clubs for spectator injuries, potentially extending liability as far as the netting. In short, though the Baseball Rule still serves to protect clubs so long as protected seating is proffered behind Homeplate. However as the clubs increase the length of their protective netting, we can expect the courts to alter the Baseball Rule in due time to reapportion liability to match.

Footnotes

1. 2-Year-Old Girl Hit by Albert Almora Jr.'s Foul Ball in Houston Suffered a Skull Fracture, According to Family Attorney, Mark Gonzales and Tim Bannon, Jun. 26, 2019, Chicago Tribune, https://www.chicagotribune.com/ sports/cubs/ct-cubs-albert-almora-girl-hit20190626-uexh4vmrhrhptky7patv2kbwsestory.html

2. 2-Year-Old Girl Hit by Foul Ball at Astros Game Suffered Skull Fracture, Attorney Says, Jake Russell, Jun. 26, 2019, The Washington Post, https://www.washingtonpost.com/ sports/2019/06/27/year-old-girl-hit-by-foulball-astros-game-suffered-skull-fractureattorney-says/

3. A Baseball Killed a Woman at Dodger Stadium, MLB's First Foul-Ball Death in Nearly 50 Years, Tim Elfrink, Feb. 5, 2019, The Washington Post, https://www.washingtonpost.com/nation/2019/02/05/make-nets-higher-womankilled-by-foul-ball-dodger-stadium-familysays/

4. A Baseball Killed a Woman at Dodger Stadium, MLB's First Foul-Ball Death in Nearly 50 Years, Tim Elfrink, Feb. 5, 2019, The Washington Post, https://www.washingtonpost.com/nation/2019/02/05/make-nets-higher-womankilled-by-foul-ball-dodger-stadium-familysays/

5. Father of Girl Hit by Ball Recounts Ordeal, and the Yankees Promise Fixes, Billy Witz, Oct. 1, 2017, The New York Times, https://www. nytimes.com/2017/10/01/sports/baseball/ yankee-stadium-netting-foul-ball.html

6. After Numerous Foul Ball Fan Injuries, Baseball Reconsiders Protective Netting, Ben Bergman and Josh Axelrod, Jul. 13, 2019, NPR, https:// www.npr.org/2019/07/13/739967250/afternumerous-foul-ball-fan-injuries-baseballreconsiders-protective-netting, hereafter "Baseball Reconsiders".

7. Does Japanese Baseball Have the Answer for MLB's Dangerous Foul Ball Problem, Allen St. John, Sep. 30, 2017, Forbes, https://www.forbes. com/sites/allenstjohn/2017/09/30/does-japanese-baseball-have-the-answer-for-baseballsdangerous-foul-ball-problem/#3364e7ca829c, herein after "Japanese Baseball".

8. Japanese Baseball, n. 6 supra.

9. Japanese Baseball, n. 6 supra.

10. Baseball Reconsiders, n. 5 supra.

11. Wells v. Minneapolis Baseball & Athletic Ass'n., 122 Minn. 327, 331 (1913).

12. Grimes v. American League Baseball Co., 78 S.W.2d 520, 523 (Ill. App. Ct. 1935).

13. Crane v. Kansas City Baseball & Exhibition Co., 168 Mo. App. 301, 301 (1913).

14. Id.

15. Id.

16. Id.

17. South Shore baseball, LLC v. DeJesus, 11 N.E.3d 903, 907 (Ind. 2014).

18. See Coomer v. Kasas City Royals Basebal Corp., 437 S.W.3d 184, 197 (Mo. 2014).

19. Coomer, 437 S.W.3d at 197.

20. Id. at 201.

21. Id. at 189.

22. Id. at 202.

23. Lowe v. California League of Prof. Baseball, 56 Cal. App.4th 112 (1997).

24. Id. at 123.

25. Baseball Reconsiders, n. 5 supra

26. All 30 MLB Teams Will Extend Protective Netting this Season, Tom Schad, Feb. 1, 2018, USA Today, https://www.usatoday.com/story/sports/ mlb/injuries/2018/02/01/mlb-teams-extendprotective-netting-season/1086019001/, herein after "Protective Netting".

27. Baseball Reconsiders, n. 5 supra.

28. [28] Here's a Look at the 30 MLB Ballparks and their Safety Netting for Dangerous Foul Balls, Scott Gleeson and Tom Schad, May 30, 2019, updated Jul. 15, 2019, USA Today, https://www. usatoday.com/story/sports/mlb/2019/05/30/mlb-safety-nets-stadium/1284310001/

29. Protective Netting, n. 25 supra.

30. White Sox Host 1st MLB Game with Foul Poleto-Pole Netting, Scott King, July 22, 2019, Associated Press, https://apnews.com/4cda 494a0c29463dbbb9b777586aae32; Braves will Extend Protective Netting at SunTrust Park, Tim Tucker, August 19, 2019, the Atlanta Journal-Constitution, https://www. ajc.com/sports/baseball/braves-will-extendprotective-netting-foul-poles-suntrust-park/ KcDzQ8wPWyyNuXQWArOkdJ/

31. Expect Extended Netting Conversations to Continue, Zach Speddon, July 22, 2019, Ball Park Digest, https://ballparkdigest.com/2019/07/22/ expect-extended-netting-conversation-to-continue//;

32. Coomer, 437 S.W.3d at 197.

33. South Shore baseball, LLC, 11 N.E.3d at 907.

Originally Published by: SPORTS FACILITIES AND THE LAW COPYRIGHT © 2019 HACKNEY PUBLICATIONS (HACKNEYPUBLICATIONS.COM)

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