Author:Grow, Nathaniel

TABLE OF CONTENTS INTRODUCTION 62 I. THE HISTORICAL EVOLUTTON OF THE BASEBALLRULE 68 A. The Origins of the Baseball Rule 69 B. The Continued Development of the Baseball Rule 74 C. The Subsequent Mischaracterization of the Baseball Rule 80 D. The Codification of the Baseball Rule 84 II. THE RISK OF BEING INJURED AT PROFESSIONAL BASEBALL GAMES HAS INCREASED IN RECENT YEARS 85 A. Changes in Stadium Construction 86 B. Changes in the Way the Game Is Played 91 C. Changes to Ticket Policies 94 D. Increased Spectator Distractions 97 III. COURTS HAVE FAILED TO ADAPT THE BASEBALL RULE TO CHANGING LEGAL DOCTRINE 98 A. The Rise of the Law-and-Economics Movement 98 B. Misplaced Reliance on the Doctrine of Assumption of Risk 106 IV. COURTS SHOULD ABANDON (OR MODIFY) THE BASEBALL RULE 111 A. Strict Liability for Spectator Injuries 111 B. Expanding the Definition of a Ballpark's "Most Dangerous Area" 115 C. Imposing a Duty to Warn 119 CONCLUSION 122 INTRODUCTION

On September 20, 2017, a one-year-old girl was enjoying an afternoon at the ballpark with her grandparents at Yankee Stadium in New York City. Seated only five rows from the field, just past the visitors' dugout, the girl had a terrific view of that day's game between the Yankees and the Minnesota Twins. (1) Unfortunately, the young child's proximity to the field also placed her at a heightened risk of being hit by an errant ball or bat leaving the field of play. In the bottom of the fifth inning, Yankees third baseman Todd Frazier hit such a foul ball, a missile of a line drive that entered the stands at a blistering 106 miles per hour. (2) Before anyone could react, the ball hit the girl squarely in the head, causing multiple facial fractures--including to her orbital bone and nose--and leaving a visible imprint of the ball's seams on her forehead. (3)

While the young girl was fortunate to escape the incident without being more seriously injured, the episode nevertheless quickly sparked renewed concern over the issue of spectator safety at professional baseball games. (4) Although only a single fan to date has lost his life after being hit by an errant ball or bat at a Major League Baseball (MLB) game, (5) serious incidents like the one at Yankee Stadium have become increasingly common in recent years, occurring more frequently than many fans realize. (6) Indeed, according to a recent analysis by Bloomberg, approximately 1750 fans are hurt each year by foul balls while attending MLB games. (7) This equates to a rate of roughly two injuries per every three games, making a fan injury from a foul ball a more common occurrence than a batter being hit by a pitch. (8) Moreover, that estimate does not include any injuries sustained by the more than forty million fans who annually attend games hosted by one of the nearly 250 minorleague teams competing at lower levels of professional baseball. (9)

Despite the frequency with which these incidents are increasingly occurring, professional baseball teams have historically had little motivation to take greater steps to protect their spectators from injury. (10) Under what has commonly become known as the "Baseball Rule," courts for over a century have consistently held that professional baseball teams are not liable for injuries sustained by fans hit by bats or balls leaving the field of play, so long as the teams have taken minimal precautions to protect their spectators from harm. (11) Specifically, as traditionally applied, the Baseball Rule imposes a legal duty upon professional teams to merely implement two safety measures. (12) First, teams are generally expected to install protective netting to shield the "most dangerous area" of their stadiums from errant flying objects, a region rigidly interpreted by courts to consist only of those sections of seats located immediately behind home plate. (13) Second, teams must also maintain a sufficient number of screened seats to meet the anticipated consumer demand for protected seating during an average game. (14) Assuming a team has satisfied these two requirements, then under the Baseball Rule it is considered to have met the duty of care it owed to its patrons, and therefore cannot be held legally liable for their injuries. (15)

Although often erroneously attributed (16) to the generally unenforceable liability waivers that teams routinely place on the back of their tickets, (17) courts have instead traditionally justified the Baseball Rule by observing that foul balls and flying bats are inherent and unavoidable parts of the sport and thus present a risk that anyone of ordinary intelligence attending a game should easily be able to discern. (18) Moreover, courts have noted that many spectators actually prefer to watch the game from a seat unobstructed by protective netting, to both enjoy a clearer view of the field and also preserve the possibility of catching a foul ball, a cherished memento for many fans. (19) Thus, courts have crafted the Baseball Rule in hopes of balancing the competing interests of enhancing fan safety and spectator demand for unobstructed seating. (20)

Nevertheless, following a recent series of highly publicized ballpark injuries like the one recently sustained by the young girl at Yankee Stadium, (21) the continued justifiability of the Baseball Rule has come under increased scrutiny, with both academic and media commentators calling for the doctrine to be abolished. (22) Indeed, despite the slim chances of success in court, injured spectators routinely continue to file lawsuits against professional baseball teams in hopes of persuading a judge to disavow the doctrine and impose liability for the plaintiff's injuries. (23) At the same time, however, other fans have opposed the suggestion that teams should be legally required to take greater precautions to protect spectators from injury, fearing that any resulting efforts by teams to install additional protective netting would deprive these individuals of their preferred unobstructed views of the field. (24)

This Article seeks to offer two primary contributions to the renewed discussion surrounding, and heightened criticism of, the Baseball Rule. First, the Article presents new empirical evidence establishing the extent to which fans' risk of being hit by a flying object at a professional baseball game has increased in recent years. (25) Specifically, over the last quarter century, MLB teams have built nearly two dozen new stadiums, almost all of which place spectator seating significantly closer to the playing field than ever before. (26) As a result, fans today frequently sit more than 20 percent closer to home plate than was the case throughout most of the twentieth century. (27) This fact, along with a presumptive increase in the speed with which baseballs are being hit into the stands, has substantially reduced the reaction time that fans have to avoid errant flying objects heading in their direction. (28) Indeed, in some cases it may now be virtually impossible for spectators to react in time to protect themselves from a particularly hard-hit foul ball. (29) Consequently, wayward balls and bats present a much greater risk to fans today than at the time the Baseball Rule was first established in 1913, undercutting the justifiability of courts' continued adherence to the century-old doctrine. (30)

Second, the Article makes the novel observation that courts have uniformly failed to reconsider the Baseball Rule in light of the lessons instilled by the law-and-economics revolution of the 1970s and 1980s, and in particular the insights it provided regarding the most efficient allocation of liability in torts cases. (31) Indeed, no prior court or academic commentator has subjected the Baseball Rule to a full-blown economic analysis, a surprising omission given how dramatically the law-and-economics movement has altered the collective understanding of the ideal apportionment of negligence liability. (32) This Article attempts to correct this oversight by analyzing the doctrine under economic principles of optimal risk allocation, concluding that, because the host team itself will almost always be the lowest cost or best risk avoider, the traditional Baseball Rule improperly shields teams from legal liability. (33)

Given these insights, the Article ultimately concludes that courts should no longer adhere to the Baseball Rule and should instead expand the extent to which professional baseball teams may be held legally responsible for injuries sustained by their spectators. (34) The Article proceeds in four parts. Part I begins by examining the historical evolution of the Baseball Rule, surveying its origin in 1913 as well as its subsequent judicial development over the last century. Part II then examines the extent to which the risk of being injured by an errant ball or bat at a professional baseball game has increased in recent years. In particular, Part II presents new empirical data establishing that fans' ability to defend themselves from flying projectiles has decreased considerably due to recent trends in both stadium construction and the way in which baseball is played and presented to fans. Next, Part III considers the failure of courts to adapt their application of the Baseball Rule to two important changes in the underlying law of torts, namely the rise of the law-and-economics movement and the recent judicial repudiation of the traditional tort defense of assumption of risk. Finally, Part IV offers several suggestions for how courts should modify their Baseball Rule jurisprudence to more equitably resolve lawsuits brought by fans injured by errant balls or bats while attending professional baseball games. Most notably, it asserts that courts (and legislatures) should replace the Baseball Rule with a strict-liability regime, forcing teams to internalize the cost of spectator injuries, thereby best incentivizing them to implement the most economically efficient level of fan...

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