Flying Baseballs, Injured Fans, Uncertain Liability: Why Legislative Action Is Needed in the Sunshine State.

Author:Jarvis, Robert M.

In January 2018, the Tampa Bay Rays announced plans to extend the protective netting at Tropicana Field. (1) Two months later, every team in Major League Baseball (MLB) opened the 2018 season with expanded netting. (2) Although MLB had been examining the issue since at least 2008, (3) three high-profile developments finally caused its owners to act: 1) a widely publicized 2014 study that found 1,750 MLB fans were being hit by baseballs each season; (4) 2) Payne v. Office of the Commissioner of Baseball, 2016 WL 6778673 (N.D. Cal. 2016), aff'd, 705 F. App'x 654 (9th Cir. 2017), an unsuccessful class-action lawsuit against MLB that brought widespread attention to the subject; and, 3) a September 2017 Todd Frazier line drive at Yankee Stadium that left a one-year-old girl with gruesome injuries, including a fractured skull. (5)

Despite the fact that all MLB stadiums now have expanded netting, fans continue to risk being hit by baseballs, as well as shattered bats and other objects, when they go to baseball games. This is particularly true at minor league, college, high school, and youth games, which (due to cost concerns) have been slow to adopt MLB's enhanced netting standards. (6)

When a fan is injured by a projectile and decides to sue, he or she is likely to be confronted with a judicially created defense known as "the baseball rule." First recognized more than a century ago in Crane v. Kansas City Baseball & Exhibition Co., 153 S.W. 1076 (Mo. Ct. App. 1913), it protects teams from liability as long as they provide at least some screened seats. Over the years, a majority of states have adopted the baseball rule (7) and several have extended it to hockey due to the risks posed by flying pucks. (8) A few jurisdictions have rejected the rule. (9) Still others have opted for a middle approach, making it available in some cases but not others. (10)

Curiously, although Florida is a baseball hotbed, (11) our state courts have never said whether the baseball rule, in any form, is available as a defense. Given this reticence, the time has come for legislative action.

The Baseball Rule Generally

As noted above, the baseball rule traces its roots to the Crane case. While watching a Kansas City Blues game, a spectator named S.J. Crane was injured by a foul ball. When he sued the team and its owner, the trial court granted summary judgment for the defendants. (12) The Kansas City Court of Appeals affirmed for three reasons: 1) foul balls are a fundamental part of baseball; 2) being struck by a foul ball is a well-known risk of attending baseball games; and; 3) Crane voluntarily chose to sit in an unprotected part of the stadium. (13)

Over time, Crane's holding evolved into what now is known as the baseball rule, a defense that immunizes teams for injuries to spectators caused by flying objects that leave the playing field. (14) To take advantage of the baseball rule, a team must provide a reasonable number of screened seats, so that fans who do not want to risk being hit can still go to the game. (15) While the exact number of seats that must be screened remains unsettled, in Martinez v. Houston McLane Co., 414 S.W.3d 219 (Tex. Ct. App. 2013), a lawsuit against the Houston Astros, the Texas Court of Appeals found it sufficient that 5,000 of Minute Maid Park's 41,000 seats were screened. (16)

Despite its seeming simplicity, the baseball rule leaves open many questions. In Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184 (Mo. 2014) (en banc), for example, the Missouri Supreme Court held that the baseball rule did not bar a lawsuit brought by a spectator named John Coomer, who was hit in the eye by a hot dog thrown by the team's mascot. Although acknowledging that such antics now take place regularly at ballparks and are used to keep fans entertained during stoppages of play, the court concluded: "[T]he risk of being injured by Sluggerr's hotdog toss is not one of the inherent risks of watching a Royals home game." (17)

In ruling as it did, the Coomer court did not abolish the baseball rule. Instead, it merely held that it did not apply unless the flying object came directly from the field of play and was an inherent, and, therefore, unavoidable, part of the sport. (18) Other courts, however, have flatly rejected the baseball rule. In Rountree v. Boise Baseball, LLC, 296 P.3d 373 (Idaho 2013), the Idaho Supreme Court explained that there was simply "no compelling public policy" for granting baseball teams an exemption from standard business invitee liability. (19)

While the baseball rule is a judicial creation, four states have made it a part of their statutory law. Arizona Revised Statutes Annotated [section]12-554 (2016) specifies, "[a]n owner is not liable for injuries to spectators who are struck by baseballs, baseball bats, or other equipment used by players during a baseball game." (20) Colorado Revised Statutes Annotated [section]13-21-120 (2016) directs, "[s]pectators of professional baseball games are presumed to have knowledge of and to assume the inherent risks of observing professional baseball games, insofar as those risks are obvious and necessary. These risks include, but are not limited to, injuries which result from being struck by a baseball or a baseball bat." (21) 745 Illinois Compiled Statutes Annotated 38/10 (2017) instructs, "[t]he 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." (22) And New Jersey Statutes Annotated [section]2A:53A-46 (2017) stipulates, "[s]pectators of professional baseball games are presumed to have knowledge of and to assume the inherent risks of observing professional baseball games. These risks are defined as injuries which result from being struck by a baseball or a baseball bat anywhere on the premises during a professional baseball game." (23)

The Baseball Rule in Florida

No reported court decision in Florida squarely addresses the baseball rule. Nevertheless, there are cases in which a spectator has been injured, either directly or indirectly, by a baseball, or a bat, and has sued.

In Woodford v. City of St. Petersburg, 84 So. 2d 25 (Fla. 1955) (Div. A), for example, a homeowner named Nelson F. Woodford was injured when a baseball from Huggins Field, the spring training home of the New York Yankees, (24) landed in his backyard. In their effort to retrieve the ball, a group of boys knocked Woodford over and fractured his lower back.

To recover for his injuries, Woodford sued the City of St. Petersburg, the owner of Huggins Field. In his complaint, he alleged the city had known for weeks that "flying squadrons" of young men and boys had been chasing balls "hit or thrown beyond Huggins Field onto adjoining lands" and had done nothing to stop them. (25)

The circuit court dismissed Woodford's suit because:

even admitting the existence of the alleged nuisance, any effort on the part of the [c]ity to have abated the nuisance and prevent the trespass to appellant's property would have involved an exercise of the police power calling into action the municipal police force and that under the established law of this state, a municipality cannot be held liable for the negligence of its police department whether for acts of commission or omission...

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