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School Library Journal Reviews
April 1, 2014
Knuckleball Ned
BYLINE: Grace Oliff
SECTION: REVIEWS; Preschool to Grades 4; Pg. 118 Vol. 60 No. 4
LENGTH: 218 words
PreS-Gr 1--Cy Young Award winner Dickey is a starting pitcher for the Toronto Bluejays and the only pitcher to use
the knuckleball (a ball with minimum spin that causes an unpredictable motion) as his primary pitch. In his picture-book
debut, Dickey has Ned, an anthropomorphized baseball, nervously pondering his first day as school--as it turns out, with
good reason. Wobbly from birth, he bumps into everyone as he makes his way down the school bus's aisle and angers
the Foul Ball Gang when he comes to the defense of his large friend, Sammy the Softball. To make matters worse, all
the other balls--fast balls, curve balls, sliders, etc.--know who they are, and Ned does not. Eventually, Ned's wobbling
saves the day when the Foul Ball Gang plays a nasty prank on Connie Curveball, and he comes to the realization that he
is not a knucklehead but, rather, Knuckleball Ned. The clear, lively writing and nice pacing make this a good addition to
the canon of antibullying books that make their point without being message driven. Bowers adds to the fun by individualizing the many balls, no mean trick when the head shapes must be identical. His cartoon acrylic paint illustrations
effectively capture Ned's wobbliness and make the pages come alive with motion.--Grace Oliff, Ann Blanche Smith
School, Hillsdale, NJ
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Lawyers Weekly USA
February 27, 2013 Wednesday
Benchmarks: 'Baseball Rule' doesn't bar injured fan's suit, rules Idaho Supreme
Court
BYLINE: Pat Murphy
SECTION: NEWS
LENGTH: 735 words
An injured baseball fan usually has about as much chance of winning a negligence suit as my Cleveland Indians have of
winning a World Series.
But the Idaho Supreme Court just gave the go ahead to the personal injury action of a spectator who lost an eye to a foul
ball.
The injured fan is Bud Rountree, a proud season ticket holder of the Boise Hawks for over 20 years. On Aug. 13,
2008, Rountree took his wife and two grandchildren to a Hawks game at Memorial Stadium in Garden City. During the
game, Rountree and his party went to the park's "Executive Club" for a few refreshments.
According to court records, the Executive Club is protected from foul balls from above by horizontal mesh netting.
However, it happens to be one of the few areas of the park that is not protected from the field of play by vertical netting.
Most portions of the stadium are protected by vertical mesh netting approximately 30 feet high.
While in the Executive Club, Rountree started talking to someone and stopped paying attention to the game. This was a
surprising lapse in judgment for someone who had attended so many baseball games. Dads instruct us from an early age
that you never take your eye off the action because you never know when a foul ball will come screaming your way.
But being in the Executive Club, perhaps we can forgive Rountree for feeling he was out of harm's way.
He wasn't, as luck would have it.
According to Rountree, while engaged in conversation in the Executive Club, he heard the roar of the crowd and turned
his head back to the game, just in time to be struck by a foul ball. As a result, Rountree lost his eye.
In 2010, Rountree filed a negligence action in state court, suing the operator of the park, Boise Baseball, and related
entities.
Boise Baseball's defense was twofold. First, Boise Baseball argued that Rountree's lawsuit was barred under the "Baseball Rule," which limits the duty owed by stadium owners and operators to spectators hit by foul balls. Second, the park
operator argued that Rountree had assumed the risk of his injuries.
Courts across the country, with rare exceptions, have regularly applied these theories to doom the lawsuits of injured
baseball fans like Rountree. But the trial court in this case denied Boise Baseball's motion for summary judgment.
Because of the novelty of the case, the Idaho Supreme Court agreed to take up Boise Baseball's appeal before trial. The
state high court decided Feb. 22 that the Baseball Rule does not apply in Idaho, and that primary assumption of the risk
was not a valid defense to Rountree's negligence claim.
Idaho Justice Jim Jones, writing for a unanimous court, explained why the court declined Boise Baseball's invitation to
adopt the Baseball Rule.
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Benchmarks: 'Baseball Rule' doesn't bar injured fan's suit, rules Idaho Supreme Court Lawyers Weekly USA February
27, 2013 Wednesday
Jones wrote that there was no compelling policy reason to adopt such a rule because Boise Baseball failed to show that
there was a fundamental link between baseball and spectator injuries.
"Boise Baseball admits that at least for 'seven seasons [Rountree's] accident is the only time a spectator has suffered a
"major" injury because of a foul ball' at Memorial Stadium," observed Jones. "The rarity of these incidents weighs
against crafting a special rule. "
Further, the justice said it was up to the state legislature to decide whether the Baseball Rule should be adopted.
"Declining to adopt the Baseball Rule leaves policy formulation to the deliberative body that is better positioned to consider the pros and cons of the issue," Jones wrote.
Turning to the issue of whether Rountree assumed the risk of his injuries by attending a game in which foul balls are a
known hazard, Jones said that "[a]llowing assumption of risk as an absolute bar is inconsistent with our comparative
negligence system, whether the risks are inherent in an activity, or not. "
Instead, the justice said that the jury was in the best position to assess Rountree's own responsibility for the loss of his
eye.
"Whether a party participated in something inherently dangerous will simply inform the comparison, rather than wholly
preclude it," Jones wrote. "Here, whether watching baseball is inherently dangerous, and the degrees of fault to be apportioned to Rountree and Boise Baseball, are questions for the jury. " (Rountree v. Boise Baseball)
<a href="http://www.lawyersusaonline.com/be-the-first-to-know/">Click here for more from this resource. </a>
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Waterloo Chronicle
April 25, 2010 Sunday
Final Edition
Fan falls about 14 feet during batting practice before Cubs-Brewers game
SECTION: Pg. 01
LENGTH: 293 words
DATELINE: ARTICLE
MILWAUKEE - A spectator fell about 14 feet from the lower level in left field while the Cubs took batting practice
about an hour before their game with the Milwaukee Brewers.
The man wearing Cubs gear and believed to be in his 20s was reaching out over the railing down the left-field line attempting to catch foul balls on Sunday when he tumbled headfirst over the rail and onto the hard dirt below.
"Very shaken up, looking around the stadium, there's got to be something to prevent that," Cubs shortstop Ryan Theriot
said. "I guess it could happen to anybody going for a ball. Guys get those front-row seats to get foul balls. Very scary."
Brewers spokesman Tyler Barnes said privacy laws prevented them from releasing any detailed information about the
person or the incident.
"He was observed by fans after the fall moving all his extremities," Barnes said.
Brewers trainer Roger Caplinger said the man was cut and bleeding from the face, but was conscious as he was taken
off the field by emergency first responders.
He was taken to a hospital and a hospital spokeswoman said she couldn't reveal any details about the injured man, citing
privacy laws. Theriot said the man was talking a little bit before being taken from the field.
"Hopefully, he'll be fine," Theriot said.
Several Cubs players went over to see what had happened as well as Chicago's athletic trainers, and the incident held up
batting practice for about 10 minutes.
Barnes said severe injuries have been extremely rare at Miller Park, which has been open for 10 years.
In 2004, a 48-year-old Madison man died a day after injuries he suffered when he fell 17 feet from an escalator. Three
ironworkers were killed in the construction of the park in 1999 when a crane collapsed because of high winds.
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Carleton Place
April 1, 2010 Thursday
Final Edition
After hitting mother with foul ball, Span calls for nets to protect fans
SECTION: Pg. 01
LENGTH: 118 words
DATELINE: ARTICLE
FORT MYERS, Fla. - After accidentally hitting his mother with a foul ball in a spring training game, Minnesota Twins
centre-fielder Denard Span says he thinks baseball teams should extend the netting that protects fans.
Fans sitting behind home plate are protected from foul balls by netting. But most major league and minor league ballparks stop the netting before the dugouts on either side.
Wanda Wilson was sitting adjacent to the Twins dugout in Tampa on Wednesday when she was hit in the chest by a line
drive from her son. She wasn't seriously hurt, but Span says it could have been a lot worse.
Major League Baseball says it is up to each individual team to decide how much netting is used at its ballpark.
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Waterloo Chronicle
April 1, 2010 Thursday
Final Edition
After hitting mother with foul ball, Span calls for nets to protect fans
SECTION: Pg. 01
LENGTH: 118 words
DATELINE: ARTICLE
FORT MYERS, Fla. - After accidentally hitting his mother with a foul ball in a spring training game, Minnesota Twins
centre-fielder Denard Span says he thinks baseball teams should extend the netting that protects fans.
Fans sitting behind home plate are protected from foul balls by netting. But most major league and minor league ballparks stop the netting before the dugouts on either side.
Wanda Wilson was sitting adjacent to the Twins dugout in Tampa on Wednesday when she was hit in the chest by a line
drive from her son. She wasn't seriously hurt, but Span says it could have been a lot worse.
Major League Baseball says it is up to each individual team to decide how much netting is used at its ballpark.
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Lawyers Weekly USA
May 5, 2008
Nevada Supreme Court rules spectator injured by foul ball can't sue
BYLINE: Lawyers USA Staff
SECTION: NEWS
LENGTH: 324 words
Baseball stadium owners and operators have only a limited duty to protect spectators from foul balls, the Nevada Supreme Court has ruled. A married couple attended a minor league baseball game and left their assigned seats to get refreshments in a concessions area several hundred feet from the playing field that had no protective screening.
As the man stood at a railing to watch the game, his wife took a sandwich to a table with no view of the field. A foul
ball struck her in the face, rendering her unconscious, breaking her nose and lacerating her face.
The couple sued, arguing that the stadium owner and operator had a duty to protect them from injury.
But the court disagreed, affirming a summary judgment.
"[T]he 'limited duty rule' ... requires stadium owners and operators to provide a sufficient amount of protected seating
for those spectators 'who may be reasonably anticipated to desire protected seats on an ordinary occasion'" and "requires
stadium owners and operators to provide protection for all spectators located in the most dangerous parts of the stadium,
that is, those areas that pose an unduly high risk of injury from foul balls (such as directly behind home plate). " ...
"Here, the record establishes that foul balls occasionally fly into [the concessions area where the injury occurred], some
parts of which have an obstructed view of the field. The risk of an occasional foul ball, however, does not amount to 'an
unduly high risk of injury. ' Indeed, [the plaintiffs have] conspicuously failed to demonstrate that any other spectator
suffered injuries as a result of errant balls landing [there]. Thus, we conclude that [the plaintiffs] failed to establish a
genuine issue of material fact as to the [owner's and operator's] negligence, and [the defendants] were entitled to judgment as a matter of law. "
Nevada Supreme Court. Turner v. Mandalay Sports Entertainment, No. 46191. April 17, 2008. Lawyers USA No.
9939752.
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Lawyers Weekly USA
December 17, 2007
N.Y. Court of Appeals rules baseball park operator has no duty to spectators
BYLINE: Lawyers USA Staff
SECTION: NEWS
LENGTH: 302 words
A baseball park operator doesn't have a duty to warn or protect non-patron spectators who are injured while chasing
foul balls that are hit out of the stadium, New York's highest court has ruled.
The plaintiff's 14-year-old son chased a foul ball that came out of the park into traffic. He was struck and injured by car
driven by a drunk driver.
At the time, the park offered free baseball tickets to non-patrons outside the park who retrieved foul balls and returned
them to the ticket window.
The mother sued the park operator for negligence.
She argued that the foul ball promotion gave rise to a duty to warn non-patron spectators due to the foreseeability of
children chasing balls into the street.
But the court disagreed.
"[The] plaintiff's theory rests upon [the] defendant's 'foul ball return for tickets' promotion. [The] plaintiff insists that
this incentive foreseeably exposed fans - mostly children - to the hazard of chasing foul balls into the street. This argument, however, is one of foreseeability presupposing that a duty exists. ... The dangers of crossing the street - and individuals electing to cross it in pursuit of foul balls - exist independent of the [park operator's] promotion. This, coupled
with the fact that the [park operator] could control neither the public street nor third persons who use it, strongly militates against a finding of duty," the court said.
"Under these circumstances, it is difficult to imagine what steps the stadium operator could have taken that would have
sufficed to meet a duty. Thus, we are constrained from imposing a requirement that the stadium exercise control over
non-patron, third persons outside its premises over whom it has no actual authority to do so. "
Haymon v. Pettit (Lawyers USA No. 9938803) New York Court of Appeals No. 151. Nov. 20, 2007.
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Lawyers Weekly USA
September 26, 2005
NJ Supreme Court rules fan hit by foul ball can sue ballpark for injury
BYLINE: Lawyers Weekly USA Staff
SECTION: NEWS
LENGTH: 282 words
A fan who was hit in the eye while standing by a concession cart can sue for negligence, the New Jersey Supreme Court
has ruled.
The concession operator had placed its carts so that customers could face the field and continue to watch the game while
waiting. Although at least one cart was behind a protective screen, others - including the one the plaintiff was standing
at - were in unscreened areas where foul balls could land.
The plaintiff was taking out money to buy a beer when he was struck in the eye by a foul ball.
He argued that the stadium owner owed him a duty to provide protection from balls that go out of play.
The court agreed.
"[T]he limited duty rule, which restricts the tort liability of owners, applies in situations where an injury occurs in the
stands. However, public policy and fairness require applications of traditional negligence principles in all other areas of
the stadium, including, but not limited to, concourses and mezzanine areas. ...
"Once the fan has disengaged him- or herself from the activity on the field and has left the stands, that individual is no
longer trying to catch foul balls or even necessarily watching the game. ... [I]n areas outside of the stands, including
concourses and mezzanines ... a commercial sports facility is no different than any other commercial establishment, and
we do not hesitate to apply general negligence principles in virtually all other tort situations and the specialized business
invitee rule to commercial enterprises. "
The court cited a similar ruling from Pennsylvania.
Maisonave v. Newark Bears Professional Baseball Club, Inc. (Lawyers Weekly USA No. 9931628) New Jersey Supreme Court No. A-59/60. Sept. 13, 2005.
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Lawyers Weekly USA
August 2, 2004 Monday
Plaintiff hit by baseball at concession cart can sue, rules New Jersey Appellate
Division
BYLINE: Lawyers USA Staff
SECTION: NEWS
LENGTH: 293 words
A plaintiff who was hit in the eye by a baseball while standing at a concession cart can sue for negligence, the New Jersey Appellate Division has ruled in reversing a summary judgment.
The concession operator placed the carts so that customers could face the field and continue to watch the game while
waiting. Although at least one cart was behind a protective screen, others - including the one the plaintiff was standing
at - were in unscreened areas where foul balls could land.
The plaintiff was taking out money to pay for a beer when he was hit in the eye by a foul ball.
He argued that the concession operator owed him a duty to provide protection from balls that go out of play.
The court agreed.
"[T]he activities and ambiance of a concession area predictably draw the attention of even the most experienced and the
most wary fan from the action on the field of play. It is not only foreseeable, but inevitable, that in the process of placing orders or reaching for money or accepting the purchases or striking up conversations with others on line, spectators
will be distracted from the action on the field and the risk of injury from flying objects will be increased significantly,"
the court said.
"The defendants are engaged in a commercial venture which by its nature induces spectators to let down their guard.
They have a concomitant duty to exercise reasonable care to protect them during such times of heightened vulnerability.
The imposition of a duty under these circumstances, particularly where it involves a temporary arrangement, is not only
fair but reasonable. "
Maisonave v. The Newark Bears (Lawyers Weekly USA No. 9928709) New Jersey Appellate Division No.
A-4144-02T3. July 12, 2004.
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The Minnesota Lawyer (Minneapolis, MN)
January 19, 2004 Monday
Commentary: Claimant strikes out in baseball tort case
BYLINE: Marshall H. Tanick
SECTION: COMMENTARY
LENGTH: 2045 words
"Whoever wants to know the heart and mind of America had better learn baseball - the rules and regulations of the
game."
- Jacques Barzun, "God's Country and Mine" (1954)
It might be the middle of winter, but the "hot stove league" is flourishing. Baseball aficionados spend much of the winter cogitating and conferring with confederates about the game in the off-season, awaiting the beginning of spring training and the ensuing baseball season.
The Minnesota Court of Appeals recently directed its attention to the sport and its implications for tort law. In a ruling a
few days before winter began, the court applied the doctrine of assumption of risk to bar a spectator from pursuing a
claim for injuries incurred when struck by a batted ball at a professional baseball game. The ruling is instructive not
only about baseball, but offers some lessons about tort law in general.
Restroom risk
The case arose when a fan attending a St. Paul Saints baseball game at Midway Stadium in St. Paul was struck by a ball
while returning from a trip to the restroom. The Court of Appeals, affirming a decision by a Ramsey County District
Court judge to dismiss the case, held that the claimant's claim was precluded by the "well established" doctrine of assumption of risk. Alwin v. St. Paul Saints Baseball Club, Inc., 2003 WL 22952707 (Minn. Ct. App. Dec. 16, 2003).
Returning from the restroom late in the game, the claimant was walking near a concession stand, not watching the
game, and could not see the batter. He was struck in the mouth by a foul ball, knocking out a tooth and requiring extensive dental procedures. He sued the Saints, claiming negligence for failing to provide some type of protective netting
around the concession area.
The Court of Appeals' inquiry began with the determination of whether the baseball team owed the spectator a "duty."
The court concluded that the ballpark has only a "limited duty ... to offer the spectator the choice between screened in
seats and seats without protective netting" and refused to extend this obligation to non-seating areas of the ballpark. The
spectator's claim that the restroom and concession areas should be protected because "he could not see the batter or
game from that area" raised the issue whether he "assumed a risk inherent to the game of baseball," even though he was
not seated in the bleachers when he was struck by the foul ball.
The court concluded that the doctrine of primary assumption of risk barred that claim, although it recognized the "difficulty at times" in applying the principle in tort cases. Because sporting events necessarily "present inherent risks that are
well known to the public ... anyone who attends those events assumes the risk of injury."
The court cited numerous cases in Minnesota and elsewhere involving injuries to spectators at baseball games, as well
as those attending other sporting events. It refused to follow the Pennsylvania Supreme Court in Jones v. Three Rivers
Mgmt. Corp., 394 A.2d. 546 (Pa. 1978), which permitted a spectator to sue after he was hit by a batted ball during batting practice while standing in an interior walkway rather than seated in the stadium.
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Commentary: Claimant strikes out in baseball tort case The Minnesota Lawyer (Minneapolis, MN) January 19, 2004
Monday
That case was distinguishable because the ballpark's duty was premised on the "specific architectural feature of the stadium." Midway Stadium, where the Saints play, does not have such a "distinctive architectural feature," and following
the Jones case would lead to a "slippery slope of drawing a line between risk and protected areas" of a stadium. The
precise location of the spectator when struck by the ball is not relevant because, as a spectator, the claimant "primarily
assumes the risk inherent to the game, which includes being hit by a foul ball."
Since the fan had attended "many games in his lifetime," he clearly "understood the risk of being hit by a foul ball." His
awareness of the risk was enhanced by the club providing him the opportunity of having seats behind the protective net
behind home plate, printing warnings on the back of admissions tickets and posting "numerous warning signs" informing spectators that they could get hit by a batted ball or bat. These features, while "not necessary" to invoke assumption
of risk, "highlight the principle that [the fan] primarily assumed the risk inherent to attending a baseball game," which
includes being "hit by a foul ball while walking near the concession area."
Summary dismissal represents a rarity in assumption of risk cases. Unless the evidence is "conclusive" of the claimant's
awareness of the risk, the applicability of the defense generally raises a jury issue. Rausch v. Julius B. Nelson & Sons,
Inc., 276 Minn. 12, 149 N.W.2d 1 (1967). But the multitude of warnings and spectator's own familiarity with the game
created one of those limited occasions in which summary disposition was appropriate.
Latest litany
The Alwin case is the latest in a litany of Minnesota cases involving injuries to spectators at baseball games and other
sporting events.
The first and foremost baseball injury case of this type in Minnesota is Wells v. Minneapolis Baseball & Athletic Ass'n,
122 Minn. 327, 142 N.W. 706 (1913).
While attending a minor league game at Nicollet Park in south Minneapolis, home of the minor league Minneapolis
Millers, a woman spectator suffered a broken collarbone when struck by a foul tip. She claimed she was sitting behind
the home plate screen and was struck when the ball curved around the net. The ball club contended she was sitting further down the first base line beyond the protective screen. A jury found the baseball club negligent and it appealed.
The Supreme Court reversed, deeming it "inconceivable" that the foul ball could have curved around the screen and
stuck the fan, and ordered a new trial. Concluding that the spectator must have been seated beyond the home plate
screen, the court refused to impose upon the baseball club an obligation to shield the entire seating area. It noted that
baseball "is necessarily accompanied with some risks to the spectators" and that many spectators prefer to sit "where no
screen obscures the view." The ball club is "not an insurer against all perils." Accordingly, management's duty was restricted to providing knowledgeable spectators with "a choice" between reasonably safe screened-in seating and unprotected or "open" seats.
But this fan was given preferential treatment because of her sex. Since she was a woman, she presumably lacked "full
knowledge of the danger from foul balls." Therefore, the case was remanded for determination of whether the ball club
took reasonable precautions "to warn and protect the spectators from the attendant dangers of which they may be ignorant."
Upon retrial, the jury was to decide whether the screen was "of sufficient size to afford reasonable protection" and also
was to consider the effect of various signs conspicuously posted in the ballpark stating that management "will not be
responsible for injuries received from thrown or batted balls." While the signs would not absolve the club of liability,
they would be admissible to show the "type of precautions taken by management."
The confusing dichotomy established in Wells between "knowledgeable" baseball fans and neophytes raised the prospect of each foul ball injury case turning on the degree of an injured claimant's familiarity with the game. This specter
was snuffed out two decades later in another case emanating from venerable Nicollet Park. In Brisson v. Minneapolis
Baseball and Athletic Ass'n, 185 Minn. 507, 240 N.W. 903 (1932), the Supreme Court reversed a verdict for an injured
spectator.
An adult man had purchased a grandstand seat for a Miller's game but sat in temporary third base bleachers beyond the
protective screen because all of the grandstand seats were occupied by the time he arrived. He was injured in the sixth
inning by a foul ball that bounced into the stands and struck him in the head. He sued, claiming that the ball club was
negligent for not furnishing a screen along the third base line.
Page 13
Commentary: Claimant strikes out in baseball tort case The Minnesota Lawyer (Minneapolis, MN) January 19, 2004
Monday
Noting the paucity of cases involving injuries to baseball spectators, the court distinguished the Wells case, framing the
issue as whether a baseball club must "provide screened seats for all those who desire them, regardless of the number of
spectators who come to see the game." The answer was no, because the team's duty was limited to providing a "screen
for the most dangerous part of the grandstand and for those who may be reasonably anticipated to desire protected seats,
and that they (management) need not provide such seats for an unusual [sized] crowd."
Not content to rest its decision solely on the club's lack of negligence, the court proceeded to analyze the case from the
standpoint of assumption of risk. Departing from Wells, the court in Brisson stated that risks incident to baseball are a
matter of "common knowledge" and that any "adult of reasonable intelligence" would recognize and appreciate the possibility of being hit by a foul ball. Even though the plaintiff claimed to have "limited experience" with baseball, he was
deemed to have assumed the risk as a matter of law. Therefore, the baseball club was absolved from liability.
The dual determinations of no negligence and assumption of risk in Brisson did not, however, create an absolute barrier
for recovery by injured baseball spectators. A few new twists emerged in Aldes v. Saint Paul Ball Club, Inc., 251 Minn.
440, 88 N.W.2d 94 (1958).
A 12-year-old boy was injured when struck by a baseball that was thrown wildly during infield practice between innings. The boy originally had been sitting in the grandstand but during the game had, at the invitation of a friend who
was an usher at the game, moved to a seat in an open area behind first base.
Since the boy was "well-acquainted" with baseball, he would be barred from recovery under the Brisson rule under ordinary circumstances. The court, however, pointed to the lad's youthfulness as a basis for departing from Brisson and
refused to find an assumption of risk as a matter of law. Returning to the reasoning of the Wells case, the court deemed
assumption of risk a factual issue in light of the subjective characteristics of the plaintiff.
The court viewed the Aldes case as raising both negligence and assumption of risk issues: was the usher negligent in
encouraging the boy to change his seat and did the injured boy assume the risk of increased likelihood of injury when he
changed seats? Both issues were considered factual questions for a jury; thus the case was remanded for trial.
The Wells case was later cited for the proposition that the sole duty owed by the promoter of sporting events to patrons
is to provide a "choice" of observing the event from a reasonably protected area or assuming the risk and sitting in an
area less protected from inherent dangers of the activity. Grisim v. Tape Mark Charity Pro-Am Golf Tournament, 415
N.W.2d 874 (Minn. 1987).
In Grisim, cited in the Alwin case, the court affirmed summary judgment for golf tournament sponsors sued by a spectator who was struck by an errant ball. It ruled that the tournament sponsors had provided spectators with "reasonable
opportunity to view the participants from a safe area."
The term "hot stove league" refers to kibitzing by baseball fans during the winter as they wait the upcoming season.
They always have a lot to talk about in the off-season, but this recent case provides more fodder for those who follow
the national pastimes of baseball and litigation.
Marshall H. Tanick is an attorney with the Twin Cities law firm of Mansfield, Tanick & Cohen, P.A. He is certified as a
civil trial specialist by the Minnesota State Bar Association and represents employers and employees in a variety of
workplace-related matters.
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Lawyers Weekly USA
February 3, 2003
Va. Supreme Court Rules Injured Spectator Can't Sue Baseball Club For Negligence
BYLINE: Lawyers USA Staff
SECTION: NEWS
LENGTH: 245 words
A spectator struck by a foul ball at a minor league baseball game can't sue for negligence - her claim is barred by assumption of the risk, the Virginia Supreme Court has ruled.
The plaintiff was attending her first baseball game. She was seated in an unscreened area of the stadium high in the
bleachers above third base. A foul ball struck her in the face, causing facial fractures, injury to the right eye socket and
extensive nerve damage.
The plaintiff sued for negligence, arguing that she didn't know she could have requested a seat in a screened area and
that she never saw the warning printed on the back of her ticket.
But the court said, "No one of ordinary intelligence could see many innings of the ordinary league game without coming
to a full realization that batters cannot, and do not, control the direction of the ball which they strike and that foul tips or
liners may go in an entirely unexpected direction...We hold that when a particular adult spectator of ordinary intelligence is familiar with the game of baseball, that spectator assumes the normal risks of watching a baseball game, including the danger of being hit by a ball batted into an unscreened seating area of a stadium. "
The court noted similar decisions from California, Georgia, Massachusetts, Missouri, North Carolina, Oklahoma, Texas
and Utah.
Thurmond v. Prince William Professional Baseball Club, Inc. (Lawyers Weekly USA No. 9924911) Virginia Supreme
Court No.020116. January 10, 2003.
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THE LAWYERS WEEKLY
Friday, May 3, 1991
Blue Jays provided 'acceptable standard' of protection
BYLINE: Monique Conrod
SECTION: Vol. 11, No. 1
LENGTH: 1475 words
OTTAWA - A major league baseball organization provided reasonable protection to a young boy who was hit by a foul
ball during a Blue Jays game, the Ontario Court of Justice (General Division) ruled in March.
Mr. Justice Francis Joseph McDonald found that the defendants had "provided protection [for spectators at Exhibition
Stadium] in accordance with an acceptable standard or norm within the industry."
The negligence suit was launched by Denise Noonan, the mother of the injured boy, along with her children, Jesse and
Jordan.
She named as defendants the Board of Governors of Exhibition Place, along with Toronto Blue Jays Baseball Ltd., the
Municipality of Metropolitan Toronto and Charles Noonan, the boy's father.
On Oct. 5, 1985, Jesse Noonan, then 10 years old, was struck by a foul ball while attending a Blue Jays game at Exhibition Stadium with his father.
The Noonans were sitting in section 13, approximately 32.37 metres from home plate.
Jesse, who was not paying attention to the game when the ball was hit, was struck on the right side of the face, causing
severe swelling around his right eye and lacerations along the bridge of his nose.
He was admitted to hospital, and, after his release five days later, continued to wear an eye patch and receive treatment
from a pediatric ophthalmologist for the next few weeks.
The injuries included a small traumatic cataract and also a small rupture of the iris in his right eye. The doctor also noted fluctuations in the intraocular pressure on the right side.
None of these were expected to pose any future problems.
In his decision, Mr. Justice McDonald noted that there were few precedents in this area of negligence law. His ruling
was based largely on extensive engineering and scientific data provided by expert witnesses on both sides.
The plaintiffs' case was based primarily on whether or not the defendants should have provided protective screening to
shield the area in which Jesse Noonan was sitting from foul balls.
The foul ball screen at Exhibition Stadium is 27 feet high and 85 feet wide, starting from the extension of the first base
foul line, continuing behind home plate, and ending at the extension of the third base foul line.
The screen protects an area of approximately 132 feet directly behind home plate. This area is categorized as a "danger
zone" because of the frequency of tipped or foul balls hit directly back into the area from the batter's box.
By studying a videotape of the game using a fast-freeze mechanism, the plaintiffs' experts judged the speed of the ball
which struck Jesse Noonan to be between 85 and 100 miles per hour.r
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Blue Jays provided 'acceptable standard' of protection THE LAWYERS WEEKLY Friday, May 3, 1991
Counsel for the plaintiffs suggested that the need for protection should be based not on the frequency of ball hits into an
area, but on the degree of danger posed to a spectator in the area who is unable to react quickly enough to avoid an oncoming ball.
All experts agreed that a person seated in Jesse's position would have had a maximum of one second to react to a baseball approaching at that speed, and that, in Jesse's case, the time could have been as little as .67 second.
Plaintiffs' counsel noted that Jesse was not paying attention to the game when the ball was hit, and pointed out that there
are various distractions present in a stadium during a game.
The counsel added that much of the Blue Jays' advertising is directed toward young people, encouraging them to come
to the games.
Noting that young people are more easily distracted by food vendors and other activities in the stadium during a game,
and that their reaction times might be slower than an adult's, he suggested that the stadium might owe these young people a greater degree of safety.
Engineers testifying for the plaintiffs speculated that the "danger zone" and the area shielded by the protective screen
should be extended to cover an area of approximately 132 feet from home plate on both sides of the field as well as directly behind the plate. Such a screen would have protected the area in which Jesse Noonan was sitting.
In response, the defence called their expert witness, Earl Santi, an American architect whose firm specializes in sports
facility design.
Mr. Santi testified there are no specific engineering requirements in baseball stadium design as to the width and height
of protective screening, only a "common goal" to establish backstop width based on field geometry.
He added that the Toronto stadium fully complied with this goal, and that, based on a survey he had conducted of major
league baseball stadiums in North America, Exhibition Stadium in fact exceeded the average width of 65.5 feet of protective screening.
In response to the plaintiffs' suggestion that everyone within 132 feet on either side of home plate should be protected
from foul balls, Mr. Santi testified that the area outside of the standard "safety net" was less likely to be in line for foul
balls and therefore was not considered a "danger zone."
He added that people who chose to sit outside of the screened area often brought gloves with them in order to catch a
foul ball.
Mr. Santi added that anyone desiring a "comfort level" of protection would normally sit behind the safety net.
Mr. Justice McDonald therefore concluded, based on expert opinion, that "the industry has a goal for protection of
spectators based historically on the frequency of injury occasioned in any particular area of the stadium."
A chart showing the number of injuries to spectators seated in each section of Exhibition Stadium from 1977 to 1985
indicated that a total of 13 injuries had been reported by people seated in Jesse's section during that period.
The next two sections along the first base line, however, each reported 17 injuries, leading the judge to question "why
the danger zone should not extend to these sections or beyond."
The defence also pointed out that of 2,468,000 people who attended games at Exhibition Stadium during 1985, only 31
people required medical attention as a result of being struck by a foul ball, and only one - Jesse Noonan - required hospitalization.
Defence counsel maintained, therefore, that Exhibition Stadium and the Blue Jays organization provided to Jesse
Noonan "all of the protection afforded to any baseball spectator in North America."
The defence suggested as well, and the judge agreed, that both Jesse Noonan and his father were aware that there was
some danger of foul balls in the area in which they were sitting. It was acknowledged that Jesse had previously been
injured while attempting to catch a foul ball hit into another section of the stands at another game.
Mr. Justice McDonald, however, noted that arguments based on assumption of risk "are fast becoming obsolete," and
that the Occupiers Liability Act R.S.O. 1980, ch. 332 is the governing legislation in such matters.
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Blue Jays provided 'acceptable standard' of protection THE LAWYERS WEEKLY Friday, May 3, 1991
Section 3(1) of that Act states that "[a]n occupier of premises owes a duty to take such care as...is reasonable to see that
persons entering on the premises...are reasonably safe while on the premises."
The judge considered caselaw on the subject which, he said, suggested that an occupier "must now take affirmative action to protect persons on the premises from sustaining injuries caused by foreseeable dangers...where reasonable and
obvious steps could be taken."
In this case, counsel for the plaintiffs suggested, the reasonable steps would have been to install additional screening to
protect the extended "danger zone" of 132 feet on both sides of home plate.
But, asked the judge, "[c]an the Blue Jays organization realistically protect everyone in an area where there is a possibility that foul balls might be struck?
"In my view," he added, "to impose such a duty upon an occupier is not what is contemplated by the Act."
He noted that the organization had provided protection which met with accepted standards in the industry. Had the
plaintiff desired complete protection, he could have purchased a ticket in the protected area of the stadium, or in the
cheaper bleacher seats, so far from home plate that any risk of injury would be negligible.
He concluded, therefore, that "the defendants have met the standard of reasonableness required of them and the plaintiffs' action must fail."
Regarding damages, the judge wrote that he would have awarded the plaintiffs $4,250 for "out of pocket expenses,"
including the mother's loss of income claim; $25,000 for general damages; and $1,000 for Ms. Noonan's Family Law
Act claim. All other claims from other family members were denied.
Counsel for the plaintiffs were Peter Thompson and Kevin P. Nearing. Counsel for the defendants was Peter G. Hagen.
(Reasons in Noonan v. Exhibition Place,
1101-012, 21 pp., are available from FULL TEXT.)
LOAD-DATE: April 17, 1998
LANGUAGE: ENGLISH
Copyright © 1991 LexisNexis Canada Inc.
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Copyright (c) 2002 Allegheny County Bar Association
The Lawyers Journal
January 11, 2002
4 Lawyers J. 2
LENGTH: 1717 words
ARTICLE: Legal Reports: Superior Court Holds Ballpark Owes No Duty to Fans in Bleachers for Foul Balls:
"No-Duty" Standard Incorporates Former Assumed Risk Analysis of Common, Frequent, Expected Risk
NAME: By Jason Miller, For The Lawyers Journal
BIO: Miller is a student at the University of Pittsburgh School of Law.
TEXT:
[*2] In an opinion by Judge Olszewski, the Pennsylvania Superior Court held that the operator of a ballpark owes no
duty to fans in the stands for injuries suffered from being struck by foul balls. See Romeo v. The Pittsburgh Associates
D/B/A The Pittsburgh Pirates Baseball Club, 2001 Pa.Super. 343. The adoption of the "no-duty" standard incorporates
the analysis from the former assumption of risk doctrine; specifically, was the risk common, frequent, and expected at a
ballgame? See Id.
On July 13, 1998, Nancy and James Romeo traveled with their two sons from their home in Ohio to attend a Pittsburgh Pirates baseball game at Three Rivers Stadium. Before doing so, however, the Romeo's contacted the Pittsburgh
Pirates Baseball Club and purchased tickets to the game. On the back of the tickets was a disclaimer that stated that
ticket holders assumed the risk of certain dangers during the game, including batted balls.
The Romeos sat in a field box designated by their tickets six rows from the field on the third base line. While there
was protective screening behind home plate, there was no such protection near the Romeos' seats. During the game,
Nancy Romeo turned her head briefly to the left, away from the action on the field. When she turned back toward home
plate, a batted ball struck her in the face and mouth. Romeo suffered injuries to her face and mouth including the loss of
a tooth, nerve damage to another tooth, lacerations to her mouth, headaches, and nausea.
The Romeos filed a Complaint in Civil Action against the Pittsburgh Pirates Baseball Club (club) Feb. 9, 2001. The
complaint alleged that the club was negligent, strictly liable, liable for breach of contract, liable for breach of warranty,
and liable for violating the Unfair Trade Practices and Consumer Protection Law (UTPCPL) and/or Plain Language
Consumer Contract Act (PLCA). The club then filed Preliminary Objections stating that none of the Romeos' allegations stated a claim upon which relief could be granted. On April 9, 2001, the trial court sustained the Preliminary Objections and dismissed the complaint.
The Romeos appealed to the Pennsylvania Superior Court, which first addressed the Romeos' claim of negligence.
The court cited Jones v. Three Rivers Management Corp., 394 A.2d 546, 549 (Pa. 1978) stating that the operator of a
place of amusement is not the insurer of the patrons and therefore will only be liable for injuries caused by the operator's failure to exercise "reasonable care in the construction, maintenance, and management of the facility." [*12]
Furthermore, the character of the exhibition and the customary conduct of the patrons determine the quantum of care
owed. Id. As such, "Pennsylvania courts have formulated the 'no-duty' rule, which provides that operators of a baseball
stadium, amusement park, or other such amusement facilities have no duty to protect or to warn spectators from 'common, frequent, and expected' risks inherent in the activity." Romeo v. The Pittsburgh Associates, 2001 Pa.Super. 343
citing Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 343 (Pa. 2000). An individual attending such a function is
deemed to anticipate obvious risks and assume them; this is tantamount to a lack of any duty. See Id.
Previous cases before the Pennsylvania Superior Court addressed the liability of a stadium operator for injuries
sustained when foul balls struck patrons. The early cases barred recovery because the spectators assumed the risk of
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injury. See Schentzel v. Philadelphia National League Club, 96 A.2d 181 (Pa.Super. 1953) see also Iervolino v. Pittsburgh Athletic Co., 243 A.2d 490 (Pa.Super. 1968). The fact that foul balls regularly careen into the seats is a "matter of
such common everyday practical knowledge" that all individuals will be deemed as having that knowledge. Schentzel,
96 A.2d at 186. Even a first-time spectator assumes this risk; thus there is no liability for the stadium owner. See Id.
Similarly, proximity is not an issue either. The Superior Court held that a patron seated seven or eight rows behind the
first base line assumed the risk of injury from a foul ball. Iverlino, 243 A.2d at 491.
However, with a few exceptions, Pennsylvania abolished the assumption of risk doctrine in favor of the "no-duty"
rule. See Jones, 394 A.2d at 551-52. In Jones, a spectator was injured by a foul ball while using an interior walkway at
a stadium. Id. at 548. The Pennsylvania Supreme Court determined there could be liability as a matter of law because
the risk was not a "common, frequent, and expected" part of the game. Id. at 551-52. Furthermore, the court determined
that the "no-duty" rule did not apply in Jones because the openings in the interior concourse of the stadium where the
ball passed were "not an inherent feature of the spectator sport of baseball." Id.
The Romeos argued that the shift in Jones from the assumption of risk doctrine to the "no-duty" rule left Schentzel
and Iervolino without any precedential value. The Pennsylvania Superior Court determined that the Romeos misinterpreted Jones because the "no-duty" rule clearly incorporates the assumption of risk analysis. See Romeo v. The Pittsburgh Associates, 2001 Pa.Super. 343. The court quoted former Chief Justice Roberts who "clarified this interrelation
between the 'no-duty' rule and the assumption of risk analysis relied upon in early cases."
By voluntarily proceeding to encounter a known or obvious danger, the invitee is deemed to have agreed to accept
the risk and to undertake to look out for himself. ... Thus, to say that the invitee assumed the risk of injury from a known
and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the
invitee against such dangers. Romeo v. The Pittsburgh Associates, 2001 Pa.Super. 343 citing Carrender v. Fritter, 469
A.2d 120, 125 (Pa. 1983).
As such, the court held that the "noduty" rule applied in the present case because the risk of being struck by a foul
ball while seated in the bleachers was exactly the type of "common, frequent, and expected" risk inherent to baseball.
Romeo v. The Pittsburgh Associates, 2001 Pa.Super. 343. The court said that Jones involved a case where the plaintiff
was struck by a foul ball while walking through the interior concourse of the stadium and that such a risk was not a
common one, whereas the present situation involved the same risk as that in Schentzel and Iervolino. Therefore, the
court held that the club was not liable because "Jones expressly stated that 'recovery is not granted to those who voluntarily expose themselves to the kind of risks involved in Iervolino and Schentzel, by participating in or viewing the activity.'" Id. citing Jones, 394 A.2d at 550.
Moreover, the Superior Court rejected the Romeos' contention that under the Restatement of Torts, the club was liable despite the "no-duty" rule because the club installed protective screening behind home plate. Section 323 of the
Restatement (Second) of Torts states that when one undertakes to render services for the protection of another, that person is liable for damages "resulting from his failure to exercise reasonable care to perform his undertaking, if ... (b) the
harm is suffered because of the other's reliance upon the undertaking." The court determined that the club did not assume a duty to provide protective netting to protect all of the spectators. Furthermore, section 323 of the Restatement
(Second) of Torts because the Romeos did not rely upon the protective screen behind home plate.
The Superior Court then addressed the Romeos' alternative theories of liability. First, the court rejected the Romeos'
claim of strict products liability because the sale of a ticket to a baseball game is the sale of a service, not a product.
Therefore, the court determined that the Romeos failed to meet the first element of strict products liability, a product.
Furthermore, the court determined that "sitting in the bleachers at a baseball game does not approach the type of 'abnormally dangerous activity' that merits strict liability. Romeo v. The Pittsburgh Associates, 2001 Pa.Super. 343. Next,
the court rejected the Romeos' claim of breach of contract because even if a contract existed, it was subject to the disclaimer on the back of the ticket. Furthermore, the court determined that there was no breach of an implied covenant of
good faith because it is not bad faith to admit an individual to watch a baseball game where there is an obvious risk of
being struck by a foul ball. Moreover, the court rejected the Romeos' claim of breach of an implied warranty of safety
because an operator of a stadium is not the insurer of the patrons. See Jones, 394 A.2d at 549. Furthermore, even if such
a warranty existed, it was effectively disclaimed on the back of the ticket. Finally, the court rejected the Romeos' claims
under UTPCPL and PLCA because the club had "no-duty" to warn the Romeo's and that even if UTPCPL required the
club to warn spectators, the warning on the ticket was sufficient. The Pennsylvania Superior Court concluded that the
Romeos failed to state a claim upon which relief could be granted.
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For your convenience, a capsule of the appellate case featured in this summary can be found in the PLJ supplement to
this issue. For this and other PA appellate cases, please refer to http://www.aopc.org.
Legal Topics:
For related research and practice materials, see the following legal topics:
Contracts LawBreachGeneral OverviewTortsNegligenceDefensesAssumption of RiskAthletic & Recreational ActivitiesTortsNegligenceDefensesAssumption of RiskElements & NatureKnowledge of Danger
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Copyright (c) 2002 Marquette University
Marquette Sports Law Review
Fall, 2002
13 Marq. Sports L. Rev. 39
LENGTH: 15234 words
ARTICLE: BASEBALL SPECTATORS' ASSUMPTION OF RISK: IS IT "FAIR" OR "FOUL"?
NAME: Gil FriedRobin Ammon Jr. n1
LEXISNEXIS SUMMARY:
... "Buy me some peanuts and cracker jacks" is a well-known phrase from the popular baseball tune "Take Me Out To
The Old Ballgame." ... The court stated that in a facility where the public is invited to watch a sporting event, such as a
baseball game, facility management is required to provide reasonable care and foreseeability to protect the spectators
from danger. ... The defendants attempted to use the decade-old "traditional" defense that the Epicenter had screened
seats available and that Lowe chose to sit in an unprotected seat; thus, the plaintiff "assumed the risk of being hit by a
foul ball. ... Would these distractions increase the stadium owner's duty of reasonable care to warn spectators about
foul balls? Or, as in Lowe, would these risks be found to be "non-inherent" and actually increase the normal inherent
risks? The remainder of this article highlights specific concerns that might affect future foul ball cases. ... Thus, the
courts appear to examine whether extemporaneous activities outside the inherent activities of a baseball game affect a
spectator's ability to assume the risk of injury from foul balls. ...
TEXT:
[*39]
I. INTRODUCTION
"Buy me some peanuts and cracker jacks" is a well-known phrase from the popular baseball tune "Take Me Out To
The Old Ballgame." This well-liked verse has been sung countless times since the song was introduced in 1909. Other
fashionable elements of baseball such as the sound of the bat, the smell of popcorn and hotdogs, the taste of cold beer,
and the sight of a long home run are equally as identifiable as the well-known tune. In addition to these popular memories, baseball also has unique risks, specifically those caused by foul balls. There exists a wealth of case law and articles
covering this well-established area of law. n2 However, recent trends in technology and viewing habits might require a
change in the typical application of case law to foul ball cases.
This article will briefly focus on the history of foul ball litigation in baseball and the various court decisions that
laid the foundation for the assumption of risk doctrine. The article then examines the doctrine of assumption of risk as it
has evolved and what risks are inherent in the sport of baseball, open and/or notorious, or outside the scope of the game
of baseball. Finally, the reality presented by new stadiums built within the past decade and new marketing techniques
will be discussed to see if the standard regarding assumption of risk needs to be altered or modified.
[*40]
II. BASEBALL'S "FOUL" HISTORY
A. Early Days Till 1950
The game of baseball can trace its origins to before the Civil War. n3 The first professional team, the Cincinnati Red
Stockings, along with seven other teams formed the National League in 1876. n4 A quarter of a century later in 1901,
eight other teams joined to form the American League. n5 By 1903, these sixteen teams constituted the general make-up
of major league baseball for the next fifty years. n6
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After the formation of the two leagues, baseball rapidly grew in popularity and prestige until it became known as
the "National Pastime." n7 It did not take long, however, for litigation resulting from the risks associated with baseball to
arrive at the courthouse door. Almost from the inception of the two leagues the courts have stated:
It is knowledge common to all that in these games hard balls are thrown and batted with great swiftness; that they are
liable to be muffed or batted or thrown outside the lines of the diamond, and visitors standing in position that may be
reached by such balls have voluntarily placed themselves there with knowledge of the situation, and may be held to assume the risk. n8
Early baseball litigation was comprised of spectators being hit by foul balls and thrown bats. The injured fans sued
teams and facility owners alleging negligence. The plaintiffs often sued because they perceived that their seats were not
protected or screened properly. In fact, from a historical perspective, baseball has helped to define negligence as it pertains to sport. n9 In the 1913 case Crane v. Kansas City Baseball & Exhibition Co., n10 the court held that the plaintiff was
at fault for contributing to his own negligence. n11 [*41] Since spectators are paying patrons of the game of baseball,
facility owners are held responsible to exercise a reasonable duty of care, but they are not an insurer of the safety of
their spectators. n12 However, the Crane court felt that if a fan is given the option of choosing a seat inside the facility,
and the fan picks a seat located in a dangerous area, the fan contributed to his own negligence. n13
Also in 1913, the Supreme Court of Minnesota rendered a decision pertaining to baseball in Wells v. Minneapolis
Baseball & Athletic Ass'n. n14 The allegations of negligence presented in this case also dealt with the duty facility managers owed spectators and the type of seating offered to them. n15 The court stated that in a facility where the public is
invited to watch a sporting event, such as a baseball game, facility management is required to provide reasonable care
and foreseeability to protect the spectators from danger. n16 The court relied upon the Crane decision to explain that
when spectators know, understand, and appreciate the risks from broken bats or foul balls, they cannot hold the facility
management accountable for any injuries that may occur. n17 Thus, knowledgeable spectators who choose to sit in the
open as opposed to sitting in a seat behind the screened area contribute to their own risk. n18 However, the Wells court
pointed out that not everyone, including women and others, are privy to this requisite knowledge. n19
Not every initial case ended in a defense verdict. Edling v. Kansas City Baseball & Exhibition Co. n20 was similar to
the previously mentioned cases in that it involved a plaintiff being struck by a foul ball. n21 However, in Edling the ball
passed through a hole in the protective netting, breaking the plaintiff's nose. n22 Both the lower court and the Missouri
Court of Appeals found for the plaintiff and awarded damages. n23 The court of appeals agreed with Crane and stated that
spectators assume certain "natural" risks when attending professional baseball games, such as being struck by foul
balls. n24 The court went on to say that facility owners are not required by law to protect their [*42] spectators from
being hit by foul balls. n25 However, when the owners provide seats protected by screening or netting they are bound to
exercise reasonable care to insure the protection is properly maintained. n26 The court held that "where one person owes
a duty to another, the person for whose protection the duty exists cannot be held to have assumed risks of injury created
solely by a negligent breach of such duty." n27
As the years went by, the number of foul ball injuries that ended up in the courtroom grew. In 1935, the Supreme
Court of California used Edling to affirm a lower court's ruling for the defense in Quinn v. Recreation Park Ass'n. n28
The appellant, a fourteen-year-old female, had been sitting in an unprotected seat watching a San Francisco-Pittsburgh
baseball contest when she was struck by a foul ball. n29 The appellant contended that an usher temporarily seated her in
the open area of the stadium after she had specifically requested a seat behind the protective screening. n30 The California
Supreme Court, citing Edling, held that baseball spectators assume the risks of being hit by foul balls and that the facility management is not required to insure the spectators against such injuries. n31 The management is only required to use
reasonable care to insure these injuries do not take place, and screening the entire stadium is not an option, since many
spectators wish to sit in seats where their view is not obstructed by a screen. n32 The court found that by sitting in an unprotected seat, even temporarily, the appellant assumed the risks of being struck by a foul ball. n33
In 1942, the Supreme Court of Missouri heard the case of Hudson v. Kansas City Baseball Club, Inc. n34 When purchasing his ticket, the plaintiff requested to be seated in the "best reserved seat," intending to sit in a section protected
by the stadium's wire netting. n35 However, when he was escorted to his seat, it was not behind the protected screening
and subsequently "he was struck and seriously injured by a foul ball." n36 The court, using Crane and [*43] Edling as
precedent, held that the plaintiff could not assume that because the ticket was in the reserved seating area, it was going
to be behind the wire netting. n37 Thus, at some point during the game, since the plaintiff had previously attended games
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in the stadium, he should have noticed he was not sitting behind the wire screening. n38 His election to remain in an unprotected seat was voluntary and he assumed all risks as a result of his decision. n39
B. 1950s - Mid-1980s
During the last half of the twentieth century, baseball witnessed many changes. n40 The league developed with the Boston Braves moving to Milwaukee and the St. Louis Browns moving to Baltimore, becoming the Orioles. n41 These
changes were the first major moves since the 1900s. In addition, African-American players were allowed to play in the
major leagues and baseball moved to a truly national game with the introduction of several teams on the west coast. n42
Finally, the season was extended to 162 games and many of the games were televised. n43 While most of these changes
occurred to better the sport, other changes took place at the various stadiums to ensure better safety for spectators who
attended the games. During this same period, a change in judicial attitude was seen, with several court decisions favoring plaintiffs. Some lawyers involved in baseball negligence cases believed the subtle change toward plaintiff judgments occurred due to the shift in some states from assumption of risk to comparative negligence as a defense. n44
For example, the Supreme Court of Pennsylvania found for an injured female spectator in Jones v. Three Rivers
Management Corp. n45 The appellant in this case was struck in the eye with a foul ball before the opening game at Three
Rivers Stadium while she was standing on a concourse during batting practice. n46 Using Ratcliff v. San Diego Baseball
Club of the Pacific Coast League n47 as a precedent, the state supreme court ruled that if "the occurrence causing [the]
injury [is] not a 'common, frequent and expected' part of the [*44] game of baseball" n48 there is nothing to prevent the
defendant from being found negligent. n49 Thus, according to the holdings of the Pennsylvania Supreme Court, previously decided "'no-duty' rules [sic] apply only to risks which are 'common, frequent and expected'" and do not affect a
sport facility's duty to "protect patrons from foreseeably dangerous conditions not inherent" n50 to the baseball game.
For the defense to use assumption of risk, it is required to show that the plaintiff knew of the danger caused by the
defendant's negligence and that the plaintiff accepted the risks caused by the danger. n51 A perplexing question arises
when attempting to ascertain who is at fault when an invitee becomes injured while his attention is diverted from the
dangers on the field by the "eye-catching" advertisements and promotional "gimmicks" created by the defendant.
Most court decisions from the first half of the twentieth century agreed that the owner of a baseball field is not an
insurer of a spectator's safety. Rather, like any other owner or occupier of land, owners only need to exercise a duty of
reasonable care to prevent injury to those who come to watch the games played on their fields. Court decisions during
the third quarter of the twentieth century adopted several standards when defining the duty of the ballpark owner. Some
jurisdictions stated that facility owners have a duty to provide a screened section for those spectators who wish to sit
there. n52 Other courts established that ballpark owners must only provide enough screened seats for those spectators who
desire such protection. n53 However, most courts adopted a "two-prong" test when defining the duty of a stadium owner
to provide protected seats for its patrons. n54 The first prong states that the facility owner must protect the most dangerous section of the ballpark, which usually is behind home plate. n55 The second prong states that the ballpark owner must
simply screen enough seats to reasonably fulfill requests from spectators on an ordinary occasion. n56
In Akins v. Glens Falls City School District, n57 the plaintiff was watching a [*45] high school baseball game
while standing behind the third base line "ten to fifteen feet from the [edge] of the backstop ... ." n58 During the game,
Akins was hit in the eye by a foul ball, causing serious and permanent injury. n59 The court held that the facility owner
did not have a duty to screen the entire field. n60 The owner had furnished adequate screening for the area of the field
behind home plate, where the danger of being struck by a foul ball was the greatest. n61 In addition, the plaintiff failed to
show that the number of seats behind the backstop was insufficient for the spectators who desired such screened seating
during the course of the game. n62 Thus, the owner fulfilled the "two-prong" duty of care imposed by law and was not
negligent. n63
In 1984, Davidoff v. Metropolitan Baseball Club, Inc. n64 was brought before the New York Court of Appeals, and
the court based its ruling on the Akins case. n65 The case involved a female plaintiff who was struck in the head by a
baseball while sitting behind first base in a box seat. n66 The court stated that the plaintiff could not recover for damages
from an injury which occurred while she was seated in an unprotected, unscreened area when it was undisputed that
there were vacant seats in the protected screened section. n67 The court agreed that while many viewers choose to sit in
seats unobstructed by screening, the plaintiff was unable to show why the policies established in Akins should be
changed. n68
As previously mentioned, the 1950s-1980s witnessed most foul ball cases being found in favor of the defense.
However, numerous baseball injury cases have produced unknown results, since they are often resolved through sum-
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mary judgment or demurrers that eliminate the opportunity for many published opinions that reinforce the concepts and
concerns highlighted above.
C. Mid-1980s - Present Day
Though many changes have occurred in the game of baseball, the sport is still looked upon as one of the greatest pastimes in the history of sport. Due to [*46] baseball's protected status as a result of its partial antitrust exemption,
many facets of the game have changed little in the past 100 years. In other ways, today's game has changed dramatically
with the threat of work stoppages, high salaries, newly constructed stadiums, large television rights fees, and an ever-changing strike zone. The one common element is the cases that still end up in the courtroom.
Court decisions during this period initially continued as they had in the past, in favor of the defendant. In Swagger
v. City of Crystal, n69 a female plaintiff alleged that the number of screened seats were not sufficient to accommodate her
at a softball game. n70 The Minnesota Appellate Court stated that a field owner's "'duty to protect its patrons from thrown
or batted balls ceases when it offers the spectators a choice between screened-in or open seats unless some reason exists
requiring a fuller explanation of the perils involved.'" n71
In Dent v. Texas Rangers, Ltd., n72 the female appellant was injured by a foul ball at Ranger Stadium in Arlington,
Texas. n73 Dent argued that the lower court had made two mistakes when granting summary judgment. n74 The first claim
alleged error in the holding that since the Rangers had provided screened seats to their spectators, they owed no duty to
the appellant. n75 Dent then claimed that the Rangers had an additional duty to inform their spectators that screened seats
were available. n76 The court of appeals relied upon two previous cases in which the plaintiffs had been injured by foul
balls to affirm summary judgment for the appellee: McNiel v. Fort Worth Baseball Club n77 and Friedman v. Houston
Sports Ass'n. n78 In quoting McNiel, the court stated:
"So far as regards the danger to a spectator of being struck and injured by a ball batted into the stands, a circumstance
which is commonly incident to the inherent nature of the game, the club is held to have discharged its full duty when it
has provided adequately screened seats [*47] in stands in which the patron may sit if he so desires." n79
The Texas Court of Appeals went on to quote Friedman:
"These cases do not eliminate the stadium owner's duty to exercise reasonable care under the circumstances to protect
patrons against injury. However, they define that duty so that once the stadium owner has provided 'adequately screened
seats' for all those desiring them, the stadium owner has fulfilled its duty of care as a matter of law." n80
The Dent court agreed with both McNiel and Friedman that a stadium owner has a duty to provide an adequate number
of screened seats for spectators who wish those seats, but the owner does not have a duty to inform those spectators of
the screened seats. n81
In Coronel v. Chicago White Sox, Ltd., n82 the plaintiff was struck in the face by a line drive foul ball as she looked
down to get some popcorn. n83 The plaintiff argued the White Sox failed to protect her from, or warn her about, the possible dangers from foul balls. n84 The Circuit Court of Cook County awarded summary judgment and Coronel appealed,
arguing that there existed questions of fact precluding summary judgment. n85 The defendants argued that they did not
owe a duty to protect spectators from foul balls, but the appellate court disagreed and stated that landowners owe a duty
of reasonable care to invitees on their premises. n86 The Illinois Appellate Court stated that this concept was established
ninety years earlier in the Wells case and reinforced over twenty years earlier in the Akins case. n87 The White Sox testified that they had no duty to warn the plaintiff about foul balls because "a land owner owes no duty" for "'open and
obvious'" dangers. n88 The appellate court concluded that while other jurisdictions support the application of a limited
duty rule, it was not the law in Illinois. n89 The court quoted the Maytnier v. Rush n90 case, which concluded that "'it does
not necessarily follow, however, that once an owner of a ballpark has provided an adequate fenced-in area for the most
[*48] dangerous part of the grandstand he has thereafter exculpated himself from further liability ... .'" n91
In a similar decision to Coronel, the court found for the plaintiff in Yates v. Chicago National League Ball Club,
Inc. n92 Yates alleged that the Chicago Cubs were negligent in providing adequate screening for seats behind home plate,
as well as failure to warn about the potential dangers of sitting behind home plate. n93 The court concluded that the sta-
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dium owner owes a duty that is satisfied if screened protection is provided to those who request it. n94 The court also held
that the screening provided must not only be adequate in design, but there must be enough of it to satisfy all those who
are concerned about their safety. n95 The jury found that the owner had breached his duty to provide adequate screening
and found the team liable for $ 67,500. n96
The two Illinois decisions were rendered obsolete by a statute passed the year after the decisions were made. n97 In
1992, the Illinois legislature put into effect a law regarding "foul ball" injuries. n98 The Baseball Facility Liability Act
was enacted to protect public or privately owned ballparks in Illinois from lawsuits resulting from unintentional injuries
caused by foul balls. n99 Not everyone was in favor of the new legislation; obviously, some plaintiff attorneys were
strongly opposed. They believed "the new law ... replaced the doctrines of reasonable care and comparative negligence
with the doctrine of assumption of risk." n100 The 1992 legislation stated that the only time a plaintiff may sue is when he
is either sitting behind a protective screen when injured, or if a facility employee or owner injures the plaintiff by willful
or wanton conduct. n101 Also, the law took the question of fact away from the jury by determining no liability as a matter
of law. n102 Finally, there was some concern that the people who really benefited from this law were the defendants
[*49] in the tort community (i.e., the owners and the insurance companies). n103 Thus, the teams pay lower insurance
premiums and the club saves money, which can be used towards player salaries. n104 This benefits the players and the
owners, but negates their accountability for their own negligence. n105
Recently, the Appellate Court of Illinois affirmed a trial court decision that found the Illinois Baseball Liability Act
constitutional. n106 James Jasper was injured "by a foul ball at a Chicago Cubs baseball game." n107 He attempted to show
that the legislation was unconstitutional under both the Illinois and U.S. Constitutions. n108 The appellate court judge
ruled, however, that the law did not give special benefits to one class or group and it was related to a legitimate state
interest. n109 The judge maintained that "the Baseball Act encourages use of parks for recreational activity in a way that is
not arbitrary, capricious or unreasonable." n110 While Illinois law is now fairly settled, other states still are grappling with
how to handle foul ball cases.
In 1993, an Arizona court stated that the risk of being struck by a foul ball at a baseball game is generally considered to be "open and obvious," and, therefore, generally limits the liability placed upon the landowner. n111 The court
stated that a landowner is not generally found to be negligent for injuries to invitees from actions recognized as "open
and obvious," nor is the landowner liable for injuries caused by risks known to the invitee. n112 In Bellezzo v. Arizona, n113
the court stated:
A similar observation applies to the failure of an owner of a baseball park to post a sign warning fans that no screen
protects them from the open and obvious risk of foul balls if they sit in an unscreened area. The lack of a screen is as
obvious as the fact that the Grand Canyon is a chasm, and the danger that a spectator hit by a foul ball may be [*50]
injured is as evident as the likelihood that one who falls into the Grand Canyon may be hurt. n114
In Gunther v. Charlotte Baseball, n115 the plaintiff was on a business trip to Charlotte, North Carolina. n116 While there,
she accepted a friend's invitation to attend a baseball game. n117 The plaintiff contended "that she had never ... attended a
baseball game, although she acknowledged that she had watched the sport on television 'in passing.'" n118 The plaintiff
"occupied a seat in the second row of bleachers (one row away from the field) behind the third-base dugout ... ." n119 As
the game progressed, a "ball was fouled back onto the press box, shattering the glass window and causing [the plaintiff]
to divert her attention momentarily to the press box area, over her right shoulder." n120 Immediately "as she turned back
to watch the game, a second foul ball struck Gunther squarely in the face, causing serious injuries to her face and to the
bony orbit encasing her eye." n121 Gunther sued, alleging "negligence in the design and operation of the park." n122 The
U.S. District Court granted the defendant's summary judgment based on several previous court decisions. Quoting
Quinn, the court stated, "'one of the natural risks assumed by spectators attending professional games is that of being
struck by batted or thrown balls; ... the management is not required, nor does it undertake to insure patrons against injury from such source ... .'" n123
The court continued with remarks from prior decisions, including Brisson v. Minneapolis Baseball & Athletic
Ass'n, n124 stating that, "'[it] is our opinion that the plaintiff, notwithstanding his alleged limited experience, must be held
to have assumed the risk of the hazards to which he was exposed.'" n125 Finally, the plaintiff argued that the press box
window had been shattered on more than one occasion during previous games, which provided the stadium owner with
foreseeable knowledge of the distraction. n126 [*51] Therefore, the plaintiff stated that the facility owner was liable
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because "spectators may be injured when their attention is diverted by [a] foreseeable distraction[].
U.S. District Court maintained that
n127
However, the
baseball games, like other sporting events, routinely involve distractions. For example, soft drink and peanut vendors,
giant team mascots, raffles for prizes, and high tech scoreboards all compete for the attention of patrons who attend athletic events. Fans who attend games expect, and apparently enjoy, these distractions. Such distractions are at least as
foreseeable to the spectators as they are to the owners of the premises. n128
In 1995, the Utah Supreme Court noted how different jurisdictions explored the standard of reasonable care, which
assisted in the development of what is known as the "majority rule," which was similar to the "two-prong" test in Akins.
n129
Lawson v. Salt Lake Trappers, Inc. n130 required facility owners to screen the most dangerous sections of the ballpark,
normally behind home plate, and provide screened seats for the number of spectators who may request seating for an
ordinary game. n131 However, similar to findings in Edling, Quinn, and Akins, the "majority rule" test also realizes the
traditions of baseball and that some patrons do not wish to have their view obstructed by a screen; therefore, the court
did not require the stadium owners to screen the entire ballpark. n132
IV. DISTRACTION THEORY
An earlier case, City of Milton v. Broxson, n133 brought up an interesting question pertaining to "foul ball" injuries. n134
This case was based on the "distraction theory." n135 The plaintiff was a spectator who, while watching one game, was
injured by a poor throw from a player warming up for the next scheduled game. n136 When dangers are considered to be
"open and obvious," facility owners have usually not been found liable for any injuries caused by [*52] poorly
thrown balls, broken bats, or foul balls. n137 These dangers have been found to be known or obvious, and a reasonable
person looking out for his own safety would be able to avoid the risk of injury. n138 The "distraction theory" states that
for the facility owner to be liable, the owner must have created the distraction, and that the distraction "not be
self-induced by the plaintiff's [lack of attention] to [the] obvious risks." n139
One of the more recent cases, Lowe v. California League of Professional Baseball, n140 involved the claim of a "distraction" similar to Gunther, although with contrary results. n141 In 1994, during a minor league baseball game at the Epicenter Field, a large team mascot, "Tremor" the dinosaur, was entertaining the crowd beyond third base in the "left terrace" section of the stadium. n142 The tail of the mascot bumped the plaintiff, Lowe, several times from behind. n143 This
caused Lowe to look over his right shoulder, distracting him from the game in progress. n144 As the plaintiff began to
look back towards the field a foul ball struck him on the left side of the face, breaking several bones. n145 The defendants
attempted to use the decade-old "traditional" defense that the Epicenter had screened seats available and that Lowe
chose to sit in an unprotected seat; thus, the plaintiff "assumed the risk of being hit by a foul ball." n146 The California
Court of Appeal stated that normally a stadium owner has no duty to protect a participant from inherent risks. n147 Using
Knight v. Jewett, n148 the court ruled that under primary assumption of risk, land owners have a duty not to increase the
inherent risks to which baseball spectators assume and are regularly exposed to. n149 The court of appeals stated that
"foul balls [are] an inherent risk to spectators [at] baseball games[;]" n150 if foul balls were eliminated the game of baseball would not be the same. n151 [*53] However, when viewing Knight, the same could not be said for a mascot. n152 In
fact, during a deposition, the individual dressed up as Tremor stated that he had missed several games during the 1994
season and the games progressed uninhibited. n153 Therefore, the California Court of Appeal reversed the lower court's
decision to grant summary judgment. n154 The court held that the antics of the mascot were a marketing tool and were not
essential to the game of baseball. n154 Whether the antics of the mascot could increase the inherent risks for a spectator
was an "issue of fact to be resolved at trial." n156
The appellate court's decision was based in part on the fact that "mascots are needed to make money ... but are not
essential to the baseball game." n157 Since a mascot is not integral to the game, by introducing the mascot into the stands
the team was in fact changing the viewing environment (increasing the inherent risk to fans) and creating a distraction
that does not benefit the "game" itself. n158 The court even pointed out that the mascot could have been on the sidelines
and avoided contact with the fans and this accident could have been completely avoided because the fan would not have
been distracted from the "playing field." n159
Other cases or incidents have produced similar results. One such case involved a young boy who was hit by a foul
ball at a Florida Marlins' pre-game batting practice. n160 He was by the bullpen with a group of other children as part of a
special promotion. n161 His attorney successfully argued that the pre-game program was "incidental to the game, diverted
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his attention [from the field], and should not have taken place during batting practice." n162 The decision was appealed to
the Court of Appeal of Florida, Fourth District, where the court in South Florida Stadium Corp. v. Klein n163 affirmed the
lower court's verdict. n164
[*54] An injured spectator, such as one having his view blocked by a foam finger, hat, or other object, could raise
numerous additional claims. If the plaintiff cannot clearly see the field, due to no fault of his own, can he still assume
the risk? Another potential concern entails individuals moving down to the unprotected area by the dugouts in order to
participate in between-innings promotional events. If a fan was asked to move from a protected seat down to an unprotected seat, he might have a valid distraction claim since he would not have moved but for the team asking him to help
entertain other spectators. These concerns are addressed more thoroughly below when analyzing the distraction theory,
which forms the basis of current claims and cases such as Lowe.
The Broxson case poses similar questions to those established by the Coronel and Gunther cases, and bears further
scrutiny. Vendors, mascots, and merchandise "hawkers" are constantly diverting the attention of spectators away from
the field of play. n165 The purchasing and consuming of these goods may cause a fan to forget the existence of the dangers from foul balls. n166 In addition, these products and miscellaneous scoreboard information may actually divert a
spectator's attention from the field of play, thus preventing him from focusing on the danger from foul balls. n167 Would
these distractions increase the stadium owner's duty of reasonable care to warn spectators about foul balls? Or, as in
Lowe, would these risks be found to be "non-inherent" and actually increase the normal inherent risks? The remainder
of this article highlights specific concerns that might affect future foul ball cases.
V. VIEWING PATTERNS
As highlighted earlier, court opinions most often cited as precedent are often over fifty years old. For example, in the
recently published case Benejam v. Detroit Tigers, Inc., n168 the court referenced precedent from several more recent
cases and then cases from 1961, 1953, 1951, 1950, 1931, 1914, and 1908. n169 While precedence is critical in common
law, the beauty of common law is the ability to adapt to the times. Sport viewership has significantly changed over the
years, but most courts have yet to embrace this change.
Pictures from the 1920s-1960s showed fans in their suits, sitting [*55] complacently, and watching a game. With
expensive luxury suites, kids-only areas, club seats immediately behind home plate, swimming pools in the outfield, and
a host of other viewing options, the entire viewing and fan appearance has undergone significant change. Fans come in
numerous shapes, sizes, outfits, and mannerisms. Fan-watching is one of the entertaining aspects of the event attendance
experience. n170 Fans are enthralled by a comprehensive experience ranging from doing the wave, to between innings
games, to watching other distractions. The potential problem with all these activities is that by watching all these visual
stimuli, a spectator might not be able to fully concentrate on the game. While fans of yesteryear could be held responsible for their own assumption of risk associated with being hit by a projectile leaving the field, such a finding was predicated on the fact that the injured fan was watching the game rather than turning his attention away from the game.
If a fan was watching a blimp rather than the game, the distraction would be self-initiated since the blimp was not
necessarily initiated by the team, but possibly by an advertiser. A murkier case would exist if the fan was injured while
reading the game program, the sale of which benefited the team, because fans do not necessarily need to read the program at the game. A different result occurs if the team utilizes a marketing instrumentality that intentionally or indirectly distracts the fan. Thus, in Kozera v. Town of Hamburg, n171 the court concluded that a spectator assumes the risk inherent to the baseball game "so long as those risks are not unduly enhanced by the owner of the ball park." n172 This
concept has been referred to in other cases as the "distraction theory."
The "distraction theory" has been applied in prior cases such as Brown v. San Francisco Ball Club, Inc., n173 where
the court held that "a spectator ... subjects himself to certain risks necessarily and usually incident to and inherent in the
game ... ." n174 Thus, it has been held that a spectator might not know that there is a risk of being knocked over by fans
scrambling for a foul ball, since this is not an inherent risk in the game of baseball, and it is not common knowledge
that these injuries occur, especially if no one had previously been injured in that manner. n175 Just because an element is
new or [*56] unknown does not immediately obviate the limited duty rule. In several cases in the 1930s and 1940s,
courts held that night baseball games under the lights did not represent an extraordinary hazard, as the lighting does not
materially alter the game, even though it might require additional vigilance compared with day games. n176 Thus, the
courts appear to examine whether extemporaneous activities outside the inherent activities of a baseball game affect a
spectator's ability to assume the risk of injury from foul balls.
VI. FAN MARKETING
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Numerous distractions inherent in the entire baseball "event" experience are developed, initiated, and deployed by the
team. The team utilizes such efforts to entertain the spectator, enhance the viewing experience, and generate additional
revenue. While these elements are not technically necessary for the game, they enhance the game experience from a
marketing perspective. In sports marketing circles the technique is called the sizzle. The game itself is the steak (core
element), and all the ancillary activities (extended elements) are the sizzle that make the steak that much more enjoyable. n177
The sizzle has increased in intensity as teams maneuver through the clutter of entertainment events to attract a
spectator's dollars. n178 As stated by one assistant general manager for a minor league team: "'Baseball is secondary; entertainment is number one.'" n179 Another executive echoed those sentiments by stating that: "'We don't target them
[baseball fans] - we market to those who may have no interest in the game and hope they have such a great time that
they'll become baseball fans.'" n180
Based in part on a 1989 Professional Baseball Agreement that set forth minimum facility standards for ballparks,
major and minor league parks are being rebuilt to accommodate a more family friendly atmosphere. n181 This atmosphere
can be created with such amenities as picnic areas or playgrounds designed so parents can watch both their kids and the
game at the same [*57] time. n182 These and other areas are often referred to as "alternative areas of revenue," since
they are designed to generate revenue and bring in the non-traditional fans who go for the experience, not the game. n183
The list below is a partial list of team/facility-owned or operated activities that can and do distract fans:
video display monitors on the back of seats,
food ordering displays attached to seat or accomplished with Palm Pilots or similar devices,
n184
various contests on and off the field,
various entertainment activities such as vendors using humorous techniques to deliver food (hot dog cannons),
outfield distractions such as hot tubs, swimming pools, carrousels, trains, slides, and a host of other attractions,
sideline barbeque areas or picnic tables where some individuals are seated with their backs to the game, and
team mascots designed to provide strolling entertainment.
The brand-new Comerica Park in Detroit was opened in 2000 and contained the following features:
a ten-story scoreboard, including large screen video display,
growling mechanical tigers on the scoreboard,
a fountain that produces a liquid fireworks-type display to changes in music and lights,
a baseball-themed ferris wheel ride with baseball-shaped cars, and
a carousel with tigers instead of horses. n185
The new minor league park in Reading, Pennsylvania, GPU Stadium, has a $ 1.4 million pool pavilion with a 1000
square-foot, multi-level, heated pool, including water cannons and water falls. n186 The pool is part of a picnic area behind the right field fence that boasts thirty-one tables, each with their own closed-circuit television. n187
Thus, the "distraction theory" can rely upon all these stimuli to assert a claim that might avoid the limited duty rule
that would otherwise apply to shield the baseball team or stadium. The limited duty rule can also be [*58] challenged
based on the lack of properly protected seats and the type of protection available.
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13 Marq. Sports L. Rev. 39, *
VII. PREMIUM SEATS
Case law has clearly established that a baseball stadium needs to provide enough screened seats for those who might
wish such protection. In Kavafian v. Seattle Baseball Club Ass'n, n188 the court concluded that when a patron "could have
chosen among a number of vacant seats in the screened portion of the grandstand ... and was injured by a ball, he cannot
recover, having been negligent or having assumed the risk." n189 Years ago, fans could move to vacant seats behind the
protective screen if they wanted that protection and a seat was available. This is not necessarily the case today, and defendant facility owners can be asked if they would allow fans to move from an unscreened seat to a protected seat, especially if there is a disparity in ticket prices.
This concern is especially acute if balls hit into the unscreened seats are traveling faster than those balls hit directly
behind the screened home plate area. An expert in physics can be retained to examine the speed by which a ball might
have been traveling (especially if there is television/video coverage of the incident). Traditionally, balls hit straight back
are hit with the bat coming underneath the ball, which takes off some of the speed. In contrast, line drive fouls (most
frequently right down the foul lines) are normally hit flush, and send the ball at a higher velocity down the lines and into
the stands. n190 Besides the physics issue that is beyond the scope of this article, the debate about "juiced balls" is also a
concern that will not be covered in this article. However, empirical or other data can be used to show that the types of
balls or bats increase the potential risks compared to the equipment from before the 1960s. For example, in 1975 there
were only 2698 home runs hit, while there were 5693 homers hit in 2000. n191
A baseball stadium needs to reexamine whether enough seats are actually available in the "most dangerous" locations for those that might reasonably expect to obtain such seats. These concerns raise an issue with another marketing
technique that has changed the nature of viewing habits: premium seats. Premium seating started in the late 1980s and
has been implemented in [*59] almost every sports facility. n192 Premium seats are traditionally located in what is the
most desirable location for viewing the event. In some sports this is the mid-field or mid-court section. In baseball it is
right behind home plate. The areas along the first and third base lines and directly behind home plate are traditionally
the area in a stadium where there exists the greatest likelihood of foul balls or thrown bats entering the stands. The area
behind home plate is often the most protected, with most screened seats situated in that area.
The problem with this arrangement is that there exists an entire group of individuals who will not have access to
these screened seats because the seats are usually reserved. Spectators can be precluded from these sections based on
ticket price, long-term contracts to secure seat location, and event security personnel. Fan migration is a serious concern
because those who pay $ 100 per ticket do not want someone who pays $ 10 for a ticket sitting next to them. That is one
reason why ushers or security personnel often spend more time patrolling these areas compared to the "nose bleed" sections. n193 Thus, while a facility is supposed to have enough screened seats for those who might reasonably be expected
to request them, especially in the most dangerous areas, the individuals who might want such protection may have a
hard time in fact obtaining such a seat without paying a significantly higher price. The type of seat made available can
also produce a liability concern.
In addition, a plaintiff should examine the number of available seats in the stadium, the number that are screened,
the number and location of injuries, the prices of seats around the lower bowl (closest to the field), and the number of
seats not available to everyday fans due to pre-existing ticket contracts. Another potential concern could entail whether
enough screened seats exist for disabled fans or if the accommodation seating areas are all unprotected sections. These
facts can help determine whether enough seats are available for fans in the most dangerous area of the stadium.
VIII. SAFETY SOLUTIONS
Screening has changed from the hemp woven screens utilized years ago to screens made with lightweight polymers
that are much thinner than the gauges used in the past, with a longer life and stronger tensile. n194 For example, one
company - Stan Mar - offers several types of nets, mainly nylon nets of different sizes dipped in UV protectant. The
netting is very strong and was [*60] tested in 2000 when an intoxicated fan in Comiskey Park fell and landed on the
net above the plate. The netting held his 200-plus pound body and he was safely removed. n195 These nets have been installed in ten Major League and fifteen college/minor league stadiums. n196
Stan Mar's Vice President of Sales estimated that most facilities run the net twenty to thirty feet high and normally
end the nets at the start of the dugouts. n197 Some fields place their nets in a position where the protection ends at a spot
where the first and third base lines would, if possible, extend into the stands. This location scheme was highlighted in a
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major expose, but the article and diagrams went on to show that this area was not the most dangerous. n198 Rather, the
most dangerous areas were down the first and third baselines for a significant distance past the dugouts. n199
Screen standardization is difficult due to the fact that almost every field is different in terms of the seating configuration, or the distance the stands are from the field. However, the American Society for Testing and Materials (ASTM)
has established a standard guideline for ballfield fences that requires:
6.5.1 Height - The top of the fence shall be a minimum of 8 ft, 0 in. (2.44m) above grade or a greater dimension that
ensures protection of spectators from a fouled line drive or related trajectory.
6.7.4 The backstop height and width may vary depending on the type of ball being played, the size and height of the
spectator area around it ... .The minimum width of the panels is dependent upon the structural design supporting the
chain-link or net fabric.
7.3 Spectator Protective Fence - The spectator fence shall be located where spectators will congregate to watch the
game or in front of bleachers of an 8 ft height or of a sufficient height to protect spectators at the highest point of the
bleachers. n200
Very few stadiums meet this height requirement, especially in any grandstand areas that extend beyond the dugouts.
However, some fields also run the net three to five feet above the dugout and then end all their screening. n201 The lack of
sufficient screening was identified in one case where [*61] former California Angels' pitcher Matt Keough was hit by
a ball while in his team's Scottsdale Stadium dugout. n202 The suit was settled out of court, and one month after the accident, netting was placed at the top of the dugout to protect fans and the screen behind home plate was increased from
seventeen feet to twenty-six feet. n203 A similar incident occurred when New York Yankees bench coach Don Zimmer
had his ear and left jaw cut after being hit by a foul ball while sitting in the dugout. This prompted Zimmer to jokingly
wear a "military helmet with the Yankees logo" the next day. n204
Besides height, screen length is an important consideration to determine sufficiency. In addition to the standard
calculation of the percentage of seats behind the backstop and the expected percentage of fans who might want to have
such protection, the screen length should be examined. Major League Baseball fields average from 50 feet of protection
to 250 feet. However, the Oakland Coliseum has only forty-seven feet of screening. n205 Some fields try to add an even
greater amount of protection. Florida State University installed 275 feet of netting to protect fans. n206
IX. CONCLUSION
As noted by the various courts in numerous cases, the owner of a baseball field does not insure the safety of spectators.
On the contrary, the owner only owes a duty of reasonable care to prevent spectator injury. n207 Spectators accept the
inherent dangers involved in a sporting event and assume the risk of injury as long as the risks are obvious. n208 Facility
owners are only required to have screening in the area where the danger is the greatest, located behind home plate. n209
Also, there must be screening extended to locations for the number of spectators who may request such specific seating
for an ordinary game. n210 Facility managers and owners are not required to screen the entire field in order to offer a duty
of reasonable care. In fact, many patrons [*62] attending a baseball game prefer to sit in sections where no screen
obscures the view. n211 With the change in case law from such cases as Lowe, the opportunity exists to leverage the
changes in the game to avoid the limited duty rule.
While numerous attorneys have stayed away from spectator injury cases for fear of running afoul of the limited duty or assumption of risk doctrines, there might exist some opportunities to get around these hurdles. If an attorney can
uncover significant activities designed to distract fans, fans had limited or no choice in obtaining protected seats, and
that safer screening options are available, there is a possibility that we will see more opportunities for settlement, or
cases being allowed to go the jury.
Legal Topics:
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13 Marq. Sports L. Rev. 39, *
For related research and practice materials, see the following legal topics:
TortsNegligenceDefensesAssumption of RiskAthletic & Recreational ActivitiesTortsNegligenceDutyAffirmative Duty
to ActCreators of Foreseeable PerilTortsPremises Liability & PropertyGeneral Premises LiabilityPremisesRecreational
FacilitiesSports Facilities
FOOTNOTES:
n1. Gil Fried is an Associate Professor at the University of New Haven, School of Business, in the Management of Sports Industries Department. Robin Ammon Jr. is an Associate Professor in the Sport Management Program at Slippery Rock University.
n2. Gil Fried, Safe at first (Herb Appenzeller ed., 1999).
n3. Double Play Records, The Spread, at http://www.doubleplay.com/baseball/spread.htm (last visited Sept. 29, 2002).
n4. Id.
n5. Id.
n6. Id.
n7. Double Play Records, The 1900's, at http://www.doubleplay.com/baseball/1900s.htm (last visited Sept. 29, 2002).
n8. Blakeley v. White Star Line, 118 N.W. 482, 483 (Mich. 1908).
n9. Joshua E. Kastenberg, A Three Dimensional Model of Stadium Owner Liability in Spectator Injury Cases, 7 Marq. Sports L. J., 187,
189 (1996).
n10. 153 S.W. 1076 (Mo. Ct. App. 1913).
n11. Id. at 1078.
n12. Id. at 1077.
n13. Id. at 1078.
n14. 142 N.W. 706 (Minn. 1913).
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13 Marq. Sports L. Rev. 39, *
n15. Id. at 707.
n16. Id. at 708 (citing Crane, 153 S.W. 1076).
n17. Id.
n18. Id.
n19. Wells, 142 N.W. at 708.
n20. 168 S.W. 908 (Mo. Ct. App. 1914).
n21. Id. at 909.
n22. Id.
n23. Id. at 908, 911.
n24. Id. at 909.
n25. Edling, 168 S.W. at 909.
n26. Id.
n27. Id. at 910.
n28. 46 P.2d 144, 146 (Cal. 1935).
n29. Id. at 145.
n30. Id. at 146.
Page 33
13 Marq. Sports L. Rev. 39, *
n31. Id. (citing Edling, 168 S.W. 908).
n32. Id.
n33. Quinn, 46 P.2d at 146.
n34. 164 S.W.2d 318 (Mo. 1942).
n35. Id. at 319
n36. Id.
n37. Id. at 323-24.
n38. Id. at 324.
n39. Hudson, 164 S.W.2d at 324-25.
n40. Double Play Records, supra note 7.
n41. Id.
n42. Id.
n43. Id.
n44. Lynne Reaves, Eye On The Ball: Injured Spectator Wins, 69 A.B.A. J. 1616 (1983).
n45. 394 A.2d 546 (Pa. 1978).
n46. Id. at 548.
n47. 81 P.2d 625 (Cal. Dist. Ct. App. 1938).
Page 34
13 Marq. Sports L. Rev. 39, *
n48. Jones, 394 A.2d at 551 (quoting Ratcliff, 81 P.2d 625).
n49. Id.
n50. Id. (quoting Goade v. Benevolent & Protective Order of Elks, 213 Cal.2d 183 (1963)).
n51. Id. at 552-53.
n52. Crane, 153 S.W. at 1076.
n53. Quinn, 46 P.2d at 146.
n54. Akins v. Glens Falls City Sch. Dist., 424 N.E.2d 531, 533 (N.Y. 1981).
n55. Id.
n56. Id.
n57. 424 N.E.2d 531.
n58. Id. at 532.
n59. Id.
n60. Id. at 533-34.
n61. Id. at 534.
n62. Akins, 424 N.E.2d at 534.
n63. See id.
n64. 463 N.E.2d 1219 (N.Y. 1984).
Page 35
13 Marq. Sports L. Rev. 39, *
n65. Id. at 1220.
n66. Id.
n67. Id.
n68. Id.
n69. 379 N.W.2d 183 (Minn. Ct. App. 1985).
n70. Id. at 185; see also James C. Kozlowski, Spectators Assume Obvious Risks in Unprotected Areas of Ballfield, NRPA L. Rev. para. 7
(April 1997), http://classweb.gmu.edu/jkozlows/p&r497.htm (last visited Sept. 29, 2002).
n71. Swagger, 379 N.W.2d at 185-86 (quoting Aldes v. St. Paul Baseball Club, Inc., 88 N.W.2d 94, 96 (Minn. 1958)).
n72. 764 S.W.2d 345 (Tex. App. 1989).
n73. Id.
n74. Id.
n75. Id.
n76. Id.
n77. 268 S.W.2d 244 (Tex. Civ. App. 1954).
n78. 731 S.W.2d 572 (Tex. App. 1987).
n79. Dent, 764 S.W.2d at 346 (quoting McNiel, 268 S.W.2d at 246).
n80. Id. (quoting Friedman, 731 S.W.2d at 574).
Page 36
13 Marq. Sports L. Rev. 39, *
n81. Dent, 764 S.W.2d at 346.
n82. No. 1-90-0091, 1991 Ill. App. LEXIS 1949 (1st Dist. Nov. 19, 1991).
n83. Id. at 1.
n84. Id. at 1-2.
n85. Id. at 2.
n86. Id. at 3.
n87. Coronel, 1991 Ill. App. LEXIS 1949, at 4.
n88. Id. at 6.
n89. Id. at 6-7.
n90. 225 N.E.2d 83 (Ill. App. Ct. 1967).
n91. Coronel, 1991 Ill. App. LEXIS 1949, at 7 (quoting Maytnier, 225 N.E.2d at 87).
n92. 595 N.E.2d 570 (Ill. App. Ct. 1992).
n93. Id. at 573.
n94. Id. at 578 (citing Maytnier, 225 N.E.2d at 87 (quoting Brisson v. Minn. Baseball & Athletic Ass'n, 240 N.W. 903, 904 (Minn. 1932))).
n95. Id.
n96. Id. at 577.
n97. Baseball Facility Liability Act, 745 Ill. Comp. Stat. Ann. 38/49 (West 2002).
Page 37
13 Marq. Sports L. Rev. 39, *
n98. Id. 38/10.
n99. Robert A. Clifford, P.I. Lawyer Calls Foul Ball on Baseball Act, Chi. Law., Apr. 1993, at paras. 1-2, available at
http://cliffordlaw.com/media/articles/1053.html (last visited Sept. 29, 2002).
n100. Id. at para. 11.
n101. Baseball Facility Liability Act 38/10.
n102. Clifford, supra note 99, at para. 13.
n103. Id. at paras. 16-17.
n104. Id. at para. 16.
n105. Id.
n106. Jasper v. Chi. Nat'l League Ball Club, Inc., 722 N.E.2d 731 (Ill. App. Ct. 1999); see also Illinois Baseball Facility Liability Act is
Not Unconstitutional Special Legislation, Nor Does it Deny Equal Protection to Patron Injured by Foul Ball During Chicago Cubs Game,
State Appellate Court Rules, Ent. L. Rep., May 2000, at Vol. 21, No. 12.
n107. Jasper, 722 N.E.2d at 733.
n108. Id.
n109. Id. at 736.
n110. Id. at 734-35 (citing Maloney v. Elmhurst Park Dist., 265 N.E.2d 654 (Ill. 1970)); see also Illinois Baseball Facility Liability Act,
supra note 106, at para. 6.
n111. Bellezzo v. Arizona, 851 P.2d 847, 851 (Ariz. Ct. App. 1993).
n112. Id. at 850 (citing Markowitz v. Ariz. Parks Bd., 706 P.2d 364, 367 (Ariz. 1985)).
Page 38
13 Marq. Sports L. Rev. 39, *
n113. 851 P.2d 847.
n114. Id. at 852.
n115. 854 F. Supp. 424 (D.S.C. 1994).
n116. Id. at 426.
n117. Id. at 425.
n118. Id. at 426.
n119. Id.
n120. Gunther, 854 F. Supp. at 426.
n121. Id.
n122. Id. at 425.
n123. Id. at 427 (quoting Quinn, 46 P.2d. at 146).
n124. 240 N.W. 903 (Minn. 1932).
n125. Gunther, 854 F. Supp. at 428 (quoting Brisson, 240 N.W. at 904).
n126. Id. at 426, 429.
n127. Id. at 429.
n128. Id. at 429-30.
n129. Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013, 1015 (Utah 1995).
Page 39
13 Marq. Sports L. Rev. 39, *
n130. 901 P.2d 1013.
n131. Id. at 1015; see also Kozlowski, supra note 70, at paras. 4-6.
n132. Lawson, 901 P.2d at 1015.
n133. 514 So. 2d 1116 (Fla. Dist. Ct. App. 1987).
n134. See generally id.
n135. Id. at 1118-19.
n136. Id. at 1117.
n137. Kozlowski, supra note 70, at paras. 7-13.
n138. Id.
n139. Id. at para. 24 (citing City of Milton, 514 So. 2d 1116).
n140. 65 Cal. Rptr. 2d 105 (Cal. Ct. App. 1997).
n141. Id.
n142. Id. at 106.
n143. Id.
n144. Id.
n145. Lowe, 65 Cal. Rptr. 2d at 106.
Page 40
13 Marq. Sports L. Rev. 39, *
n146. Id; see also Ralph Curtis, Assuming Risks at a Baseball Game, available at http://www.curtis-arata.com/winart/rsc0037.html (last
visited Sept. 29, 2002).
n147. Lowe, 65 Cal. Rptr. 2d at 105.
n148. 834 P.2d 696 (Cal. 1992).
n149. Lowe, 65 Cal. Rptr. 2d at 106 (emphasis omitted) (citing Knight, 834 P.2d 696).
n150. Id. at 111.
n151. Id.
n152. Id. at 111-12.
n153. Id. at 109.
n154. Lowe, 65 Cal. Rptr. 2d at 112.
n156. Id.
n157. Id. at 108.
n158. Id. at 111.
n159. Lowe, 59 Cal. Rptr. 2d at 109.
n160. Boy Injured by Batted Ball Wins $ 1 Million from Marlins, Stadium, Associated Press State & Local Wire, Apr. 6, 2000; see also
Charles Elmore, Boy Hit by Foul Ball Awarded $ 1 Million, Palm Beach Post, Apr. 6, 2000, at 6C.
n161. Boy Injured, supra note 160.
n162. Id.
n163. 789 So. 2d 1002 (Fla. Dist. Ct. App. 2001) (unpublished table decision).
Page 41
13 Marq. Sports L. Rev. 39, *
n164. Id.
n165. James C. Kozlowski, Adequacy of Spectator Protection in Danger Zone: A Jury Issue, NRPA L. Rev. (May 1993),
http://classweb.gmu.edu/jkozlows/coronel.htm.
n166. Id.
n167. Id.
n168. 635 N.W.2d 219 (Mich. Ct. App. 2001), appeal denied, 645 N.W.2d 664 (Mich. 2002).
n169. Id. at 221 n.6.
n170. Bernard J. Mullin et al., Sports Marketing 58 (2d ed. 2000).
n171. 337 N.Y.S.2d 761 (N.Y. App. Div. 1972).
n172. Id. at 762 (citing Ingersoll v. Onondaga Hockey Club, 281 N.Y.S. 505 (N.Y. App. Div. 1935)).
n173. 222 P.2d 19 (Cal. Dist. Ct. App. 1950).
n174. Id. at 20; see also Hunt v. Thomasville Baseball Co., 56 S.E.2d 828 (Ga. Ct. App. 1949); Neinstein v. L.A. Dodgers, Inc., 229 Cal.
Rptr. 612 (Ct. App. 1986).
n175. Lee v. Nat'l League Baseball Club of Milwaukee, Inc., 89 N.W.2d 811, 813 (Wis. 1958).
n176. See generally James L. Rigelhaupt, Jr., Annotation, Liability to Spectator at Baseball Game Who is Hit by or Injured as a Result of
Other Hazard of Game, 91 A.L.R.3d 24, 38 (1979) (citing Hummel v. Columbus Baseball Club, Inc., 49 N.E.2d 773 (Ohio Ct. App. 1943)).
The A.L.R. specifically encourages counsel for spectators "to look for unusual or noncustomary activities surrounding the circumstances of
[plaintiff's injuries]." Id. at 38.
n177. See generally Kelli Anderson, Not So Minor Attractions, Recreation Mgmt., Mar. 2002, at 34-41.
n178. Id.
Page 42
13 Marq. Sports L. Rev. 39, *
n179. Id. at 36.
n180. Id. at 37.
n181. Id. at 38.
n182. Id.
n183. Id. at 39.
n184. Associated Press, Palm Pilot Enters the Sports Arena, Conn. Post, Oct. 1, 2000, at F5.
n185. The Official Site of the Detroit Tigers, Comerica Park: Ballpark History, at http://tigers.mlb.com/NASApp/mlb/det/ballpark/det
ballpark history.jsp (last visited Sept. 29, 2002).
n186. Anderson, supra note 177, at 39-40.
n187. Id. at 40.
n188. 181 P. 679 (Wash. 1919).
n189. Id.
n190. See generally Tom Verducci, Safety Squeeze, Sports Illustrated, Apr. 1, 2002, at 64.
n191. Mark Hyman, The Trouble With Barry, Bus. Week, Oct. 15, 2001, at 100.
n192. Peter Farmer et al., Sport Facility Planning and Management 29 (1996); see also E.M. Swift, Hey, Fans: Sit on It!, Sports Illustrated,
May 15, 2000, at 70-85.
n193. See generally Farmer, supra note 192.
n194. Interview with Dave Benn, Vice President of Sales, Stan Mar Sports Nets (Jan. 10, 2001).
Page 43
13 Marq. Sports L. Rev. 39, *
n195. Id.
n196. Id.
n197. Id.
n198. Verducci, supra note 190, at 65.
n199. Id.
n200. Am. Society For Testing and Materials, Standard Guide for Fences for Ballfields and Other Sports Facilities, F-2000-00a (2000).
n201. Benn, supra note 194.
n202. See Verducci, supra note 190, at 65.
n203. Judi Villa, 1992 Foul-Ball Lawsuit Settled Scottsdale Stadium Injury Ended Career of Pitcher Keough, Ariz. Republic/The Phoenix
Gazette, Feb. 16, 1996, at 3.
n204. See Ronald Blum, Lasorda Hit By Broken Bat, (July 10, 2001), available at
http://sportserver.com/spec/bbo/01allstar/story/40943p-645864c.html (last visited Sept. 29, 2002).
n205. See supra note 194.
n206. Florida State University, Dick Howser Stadium Program (2000-01).
n207. See generally Crane, 153 S.W. 1076; Edling, 168 S. W. 908; Quinn, 46 P.2d 144; Yates, 595 N.E.2d 570.
n208. See generally Akins, 424 N.E.2d 531.
n209. Id; see also Coronel, 1991 Ill. App. LEXIS 1949.
n210. See generally Quinn, 46 P.2d 144; Lawson, 901 P.2d 1013; Swagger, 379 N.W.2d 183.
Page 44
13 Marq. Sports L. Rev. 39, *
n211. See generally Wells, 142 N.W. 706; Bellezzo, 851 P.2d 847.
Page 45
993 of 999 DOCUMENTS
Copyright (c) 1998 Board of Regents, for Northern Illinois University
Northern Illinois University Law Review
Summer, 1998
18 N. Ill. U. L. Rev. 601
LENGTH: 8497 words
COMMENT: Heads Up!: The Baseball Facility Liability Act
n1
NAME: Ted J. Tierney
LEXISNEXIS SUMMARY:
... The following subsections show the development of common law regarding spectator injury cases, and exhibit the
duty of care owed by stadium owners to spectators at common law and the duty of care owed by stadium owners to
spectators under the "Baseball Facility Liability Act." ... The Crane court also held that spectators correspondingly assume the risk of injury from foul balls if they know the danger of taking a seat that is not protected by screening. ...
The Yates court followed the Coronel court's holding which determined that the ballpark must provide screening for the
"most dangerous part of the grandstand" to satisfy its duty to the spectators. ... Thus, the trial court was correct in allowing the jury to decide the case based on whether the screening behind home plate was adequate to protect patrons in
"the most dangerous area of the ballpark," without reference to requests for screened seats. ... The Act provides that:
The 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 unless: (1) the person is situated behind a screen, backstop, or similar device at a baseball facility and the screen, backstop, or similar device is defective (in a manner other than width or
height) because of the negligence of the owner or operator of the baseball facility; or (2) the injury is caused by willful
and wanton conduct, in connection with the game of baseball, of the owner or operator or any baseball player, coach, or
manager employed by the owner or operator. ... The passage of the "Baseball Facility Liability Act" raises the question
of whether the Illinois legislature made the right choice in determining that ballparks should not be held liable for spectator injuries caused by foul balls and stray bats.
TEXT:
[*601]
Introduction
There are many baseball players, celebrated for one reason or another, that have sparked the diamond and its environment. n2 They have provided fuel for recaptured thrills, for reminiscence and comparisons, and for conversation and
anticipation in-season and off-season. n3 If a baseball fan is lucky enough to observe any of these players, or anyone,
playing baseball in Illinois, she would be wise to keep her eyes peeled to the playing field and prepare to dodge a foul
ball or stray bat. n4
Since the beginning of this century, cases involving foul ball injuries have been common in American courts. n5
After years of losing these cases, in 1992 a baseball spectator finally sustained a victory in Yates v. Chicago National
League Ball Club. n6 Immediately following the spectator's victory, the Illinois legislature passed the "Baseball Facility
Liability Act" which now serves as a near- complete restriction of recovery on fans struck by stray balls or bats. n7
Spectators attending amateur or professional baseball games are barred recovery under the statute, unless they are seated
behind a screen or their injury was caused by willful and wanton misconduct. n8
This comment discusses how the "Baseball Facility Liability Act" came into existence and asserts that it should be
stricken from Illinois law. n9 Part I of this comment provides the significant history and case law regarding the liability
of ballparks to spectators who are struck by stray balls or bats. Part [*602] II analyzes the appropriateness of the
"Baseball Facility Liability Act" and proposes a change in the law. n10
Page 46
18 N. Ill. U. L. Rev. 601, *
I. The History of Ballpark Liability
Baseball has traditionally been America's favorite sport, and cases of foul balls hitting spectators have clogged the
courts for years. n11 Theoretically, when a baseball spectator is injured by a foul ball, the traditional negligence analysis
should apply. n12 The following subsections show the development of common law regarding spectator injury cases,
and exhibit the duty of care owed by stadium owners to spectators at common law and the duty of care owed by stadium
owners to spectators under the "Baseball Facility Liability Act." n13
A. Development of Common Law
There is a seemingly endless array of tort cases concerning injuries suffered by fans watching baseball. n14 Although there are several inherent dangers associated with watching a baseball game, the most common danger is that
foul balls can inflict serious injury upon spectators. n15 Unfortunately for spectators, before 1992, nearly all spectator
injury cases concerning baseball were decided in favor of the defendants. n16 Nationwide, common law has established
the general rule that either: (1) a baseball park has no duty to spectators, or a limited duty to spectators that is generally
met as a matter of [*603] law, n17 or (2) the spectator assumes the risk of injury by coming to the ballpark to watch
the game. n18
1. The Beginning: Plaintiffs Strike Out
Cases determining that spectators are owed a limited duty or assume the risk of watching baseball games began to
develop in the early part of this century. n19 In 1913, Crane v. Kansas City Baseball and Exhibition Co. established that
baseball parks are not insurers of the safety of spectators. n20 Instead, the duty of the ballpark towards spectators was to
provide some seating protected by screening for the use of spectators who desire such protection. n21 The Crane court
justified this limitation of the ballpark's duty [*604] by declaring that although the danger of being hit by a foul ball
is inherent, it is not imminent. n22 Also the limited duty has been justified by the fact that many baseball spectators prefer to sit in a seat that is not obstructed by a screen, and ballparks have a right to cater to these spectators. n23 Additionally, some fans consider the chance to catch a foul ball to be one of their most exciting experiences while attending a
baseball game. n24
The Crane court also held that spectators correspondingly assume the risk of injury from foul balls if they know the
danger of taking a seat that is not protected by screening. n25 Moreover, the holding suggested that the requisite
knowledge for assumption of the risk of injury would be present in virtually every plaintiff. n26 The court stated that
since baseball is the national game, the rules governing it, the manner in which it is played, and the risks and dangers
incident to it are matters of common knowledge. n27
Thus, the case suggested that a baseball park only needed to screen a portion of the seats to satisfy any duty it had
to spectators. n28 Additionally, spectators would assume the risk of injury in virtually every case even if the ballpark did
not satisfy its duty because of their presupposed knowledge of baseball. n29 The spectators could not recover the cost of
their injury, even if they were completely ignorant of what the game of baseball is or how the game of baseball is
played. n30 Therefore, the Crane holding also suggested that the ballpark had no duty to warn spectators that they
should pay attention to the possibility of being hit by a foul ball. n31
[*605]
Later in 1913, the Minnesota Supreme Court decided Wells v. Minneapolis Baseball & Athletic Ass'n. n32 While
primarily agreeing with the Crane holding, the Wells court held that not every spectator attending a baseball game
would possess immediate knowledge of baseball's inherent dangers. n33 The court reasoned that only those that have
been struck with a baseball realize the hardness of the ball, the speed at which it travels, and the dangerous force with
which it can strike. n34 For instance, women and children are invited to purchase tickets to baseball games and may not
have enough experience with baseball to fully understand the risk they are taking by sitting in an unscreened seat. n35
Therefore, it would be unreasonable for no duty to rest upon the ballpark to protect spectators from the inherent dangers
related to baseball, other than by properly screening some of the seats. n36 The Wells court held that spectators ignorant
of the attendant dangers of baseball should be reasonably warned or that plaintiffs must know and understand the risk
they are taking, and their choice to incur that risk must be free and voluntary. n37 Otherwise the ballpark could not successfully argue that the spectator assumed the risk of injury. n38
By the late 1950s several jurisdictions adopted the Restatement (Second) of Torts on the duty of a possessor of land
to apply to stadium owners. n39 Under the Restatement, the duty of a baseball park proprietor to the spectator was considered the same as that of any landowner to an invitee on the owner's land. n40 The Restatement established that:
Page 47
18 N. Ill. U. L. Rev. 601, *
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but
only if, he:
[*606]
(a) knows, or by the exercise of reasonable care would discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or
will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. n41
Thus, the ballpark needed to use reasonable care to keep the premises reasonably safe and give warning of latent or
concealed danger; but the proprietor was not liable for injury to an invitee resulting from a danger which was or should
have been observed, when exercising reasonable care. n42 Since the spectator had a duty of self-protection, the duty of
the ballpark was reduced proportionately. n43 Thus, in jurisdictions that adopted the Restatement rule, determination
that the ballpark owner was liable for injuries would be virtually impossible for a spectator that was struck by a batted
ball because a spectator should either subjectively understand or immediately observe the inherent risks associated with
watching a baseball game. n44 For the same reasons, under Restatement rule, the ballpark had no substantial duty to
warn spectators of being hit by a baseball. n45
2. The Coronel Case: A Plaintiff Reaches Base
In 1992, an Illinois Appellate Court adopted new standards that expanded the duty of stadium owners and improved
the chances of a spectator [*607] being compensated for an injury suffered by a foul ball or stray bat. n46 In Coronel
v. Chicago White Sox, the plaintiff contended that the ballpark was negligent for: (1) failure to provide adequate protection from batted balls; (2) failure to provide an adequate number of seats behind a screen; and (3) failure to warn her of
foul balls, which it knew would be hit into the unscreened area in which she was sitting. n47 The trial court granted the
ballpark's motion for summary judgement and the plaintiff appealed stating her contentions were issues of fact that
should have been decided by a jury, and which could not be decided by summary judgement as a matter of law. n48 The
appellate court recognized the long- standing common law principle that the duty ballpark owners owe to spectators
does not require them to completely fence the seating area to protect spectators from foul balls. n49 The common law
rule only required a screen for the most dangerous portion of the seating area, which "is universally recognized as the
area behind home plate." n50 The court held that the decision of whether or not the ballpark adequately screened the
most dangerous seating area was a question of fact to be decided by a jury, and thus could not be decided by summary
judgement. n51 The court reasoned that if summary judgement was granted to the White Sox, it would be the White
Sox, and not an unbiased trier of fact which would determine the adequacy of the screening protection at Comiskey
Park. n52 The White Sox were not allowed to make this determination, especially since the protective screen was one of
the smallest screens in Major League Baseball. n53 Also, the court did not require any reference by the trial court regarding requests for screened seating before submitting the issue to a trier of fact. n54 Additionally, the court determined
that the White Sox could owe a duty to warn spectators, even though the danger [*608] was "open and obvious." n55
Therefore, whether or not the duty to warn spectators has been breached was also held to be a question of fact, to be
determined by a jury. n56 Thus, even if the ballpark had provided adequate fencing for the most dangerous seats, it is
not necessarily exculpated from further liability if the plaintiff was not properly warned. n57 The court justified this position by stating that a landowner or occupier may owe a greater duty to warn business invitees when there is reason to
believe that the invitee's attention will be distracted. n58 The case was reversed and remanded for further proceedings.
n59
3. The Yates Case: A Spectator's Home Run
Later in 1992, in Yates v. Chicago National League Ball Club, an Illinois Appellate Court finally upheld a trial
court's decision finding a baseball team liable to a spectator that was injured by a foul ball. n60 The facts of Yates indicate that the plaintiff, his four sisters, mother, and father attended a ballgame at Wrigley Field on August 20, 1983. n61
The plaintiff's father testified that he thought a screen behind home plate protected his own seat. n62 The plaintiff was
sitting six seats down the row from his father, away from the [*609] screening. n63 During the game, a foul ball
struck the plaintiff in the face. n64 A knot immediately appeared under the plaintiff's eye and blood began to pour down
his face. n65 He was taken to the first aid station and then to a local hospital. n66 The injury required surgery and a hospital stay of at least five days. n67 For the three months following the injury, the plaintiff continued to have "excruciatingly" painful headaches, occasional double vision, and became withdrawn from his friends and family. n68 The plaintiff alleged that the defendant was negligent because: (1) it failed to provide adequate screening in the area behind home
plate; and (2) it failed to warn him so as to allow him to avoid harm. n69 At the conclusion of the trial, the jury returned
a verdict for the plaintiff in the amount of $ 67,500. n70
Page 48
18 N. Ill. U. L. Rev. 601, *
On appeal, the defendant claimed that the trial court erred in allowing the jury to determine the inadequate screening issue as a question of fact. n71 The court reaffirmed the principle that a ballpark owner does not absolutely insure
the safety of his invitees on his premises. n72 However, the owner does owe a duty of reasonable care to spectators. n73
The Yates court followed the Coronel court's holding which determined that the ballpark must provide screening for the
"most dangerous part of the grandstand" to satisfy its duty to the spectators. n74 Thus, the trial court was correct in allowing the jury to decide [*610] the case based on whether the screening behind home plate was adequate to protect
patrons in "the most dangerous area of the ballpark," without reference to requests for screened seats. n75
At trial, the plaintiff had obtained expert testimony that the Cubs had not exercised reasonable care in providing
safe seating in the area behind home plate. n76 The expert witness testified that the Cubs had provided only the minimal
amount of screening necessary to cover the area directly behind home plate. n77 The screen behind home plate was 73
feet wide and 30 feet tall. n78 Further evidence suggested that there were no warning signs in the home plate area and at
least 10 foul ball injuries occurred in the home plate area of Wrigley Field during the 1982 baseball season. n79
B. The Baseball Facility Liability Act
n80
The response by the Chicago Cubs and Chicago White Sox to the plaintiff's victory in Yates was to seek immediate
legislative protection. n81 In September of 1992, the governor of Illinois signed the "Baseball Facility Liability Act,"
which completely restricts an injured spectator's ability to recover for damages in nearly all situations where the spectator is struck by a stray ball or bat. n82 The Act provides that:
[*611]
The owner or operator of a baseball n83 facility n84 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 unless: (1) the person is situated behind a screen, backstop, or similar device at a baseball facility and the screen, backstop, or similar device is defective (in a manner other
than width or height) because of the negligence of the owner or operator of the baseball facility; or (2) the injury is
caused by willful and wanton conduct, n85 in connection with the game of baseball, of the owner or operator or any
baseball player, coach, or manager employed by the owner or operator. n86
Thus, the provisions of the statute eliminate the issue of proof of whether a protective screen is adequate in height
and width, which was a question of fact for a jury under the Coronel and Yates holdings. n87 The statute also eliminates
[*612] the Illinois common law principle that the ballpark is not necessarily absolved of liability once adequate
screening is provided. n88 Moreover, the statute eliminates the Illinois common law rule that the ballpark has a duty to
warn spectators of the risk of being injured by foul balls, even though the danger is open and obvious. n89 Therefore,
the current law in Illinois is that a spectator may not recover compensation from ballpark owners or operators if injured
by a foul ball or stray bat at the ballpark unless the spectator is seated behind a defective fence or willful and wanton
misconduct is present. n90
II. Analysis: Did the Legislature Make the Right Choice?
The passage of the "Baseball Facility Liability Act" raises the question of whether the Illinois legislature made the
right choice in determining that ballparks should not be held liable for spectator injuries caused by foul balls and stray
bats. n91 The following sub-sections set forth: (1) that the statute is problematic because it is excessively broad; (2) that
baseball has historically received an anomalous position compared to other sporting events; and, (3) a proposition for
new law for all spectator events, including baseball.
A. The Baseball Facility Liability Act's Breadth is Problematic
The problem with the statute completely barring recovery is illustrated by comparing the outcome of Lowe v. California League of Professional Baseball, a California case, to the likely outcome of the same case under the "Baseball
Facility Liability Act." n92 In Lowe, the plaintiff was seriously injured when struck by a foul ball while attending a
professional baseball game. n93 To enhance the "ballpark experience," the ballpark featured a team mascot. n94 The
team mascot was performing his antics in the seats behind the [*613] plaintiff and the mascot had been touching the
plaintiff with his tail. n95 While the plaintiff was distracted by the mascot, he was struck by a foul ball. n96 The plaintiff
was very seriously injured, as several bones in the left side of his face were broken. n97
The trial court granted the ballpark's motion for summary judgement under the common law rule that the ballpark
does not owe spectators a duty to protect them from foul balls. n98 However, the appellate court reversed the summary
judgement ruling. n99 The court reasoned that the ballpark had a duty not to increase the inherent risk baseball specta-
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18 N. Ill. U. L. Rev. 601, *
tors are regularly exposed to and assume. n100 The court held that the mascot's antics during the game prevented the
plaintiff from being able to protect himself from any batted ball and foreseeably increased his risk over those inherent in
the sport of baseball. n101 Thus, the Lowe court concluded that a trier of fact should determine whether the antics of the
mascot increased the inherent risk to the plaintiff or whether the plaintiff assumed the risk of being struck by a foul ball
during the time he was distracted by the mascot. n102
Had these facts occurred in Illinois after the passage of the "Baseball Facility Liability Act" the summary judgment
in favor of the ballpark would have been upheld. By the terms of the statute, no spectator can recover for injuries incurred due to a stray ball or bat unless that person is situated behind a screen or willful and wanton misconduct by the
ballpark occurred. n103 Thus, in Illinois, baseball fans are put in a compromising position because if they turn away
from the playing field, they will assume all risk of being hit by a ball or bat. n104 This risk of injury would be assumed
even if the spectator was [*614] distracted for the benefit of the ballpark. n105 Additionally, the risk of injury would
be assumed if the distraction had nothing to do with the inherent and incidental dangers associated with baseball or if
the ballpark increased the inherent risk of injury to the plaintiff for the ballpark's own benefit. n106 For instance, buying
food or drink would distract a spectator, be a benefit to the ballpark, but could hardly be considered an inherent risk of
baseball. Yet, under the statute, when a spectator turns to pay for food, he assumes all risk of injury. n107
Additionally, the "Baseball Facility Liability Act" does not specify whether a ballpark has a duty to provide any
screening. n108 On its face, the statute solely provides that the ballpark can be held liable when the injured party is seated "behind a screen, backstop, or similar device" which is defective or if willful and wanton misconduct exists. n109
Thus, it seems that if the ballpark operator or owner did not provide any screening, an injured spectator could not recover for an injury related to stray balls or bats unless he could show willful and wanton misconduct. n110
B. Baseball's Anomalous Position
Baseball has historically occupied an anomalous position in American law and it can be inferred that the Illinois
legislature was giving baseball park owners preferential treatment when it passed the "Baseball Facility Liability Act."
n111
For instance, if a spectator attends a golf tournament in Illinois, the spectator is owed a duty of reasonable care by
the course owner. n112 Hence, if [*615] a spectator is hit by a golf ball, a jury will decide if the event operator
breached the duty of reasonable care owed to spectators. n113 In golf, the defendant can either use assumption of risk,
which would bar recovery, or comparative negligence, which would either bar recovery or reduce the awarded damages,
as a defense to the spectator's claim. n114 However, in baseball cases, the defendant does not need a defense to negligence because the spectator does not get a chance to present the facts of the case to a jury, especially since the passage
of the "Baseball Facility Liability Act." n115
C. A Proposition for the Future
One commentator has called for the courts to impose strict liability upon ballparks for injuries to spectators caused
by stray balls or bats. n116 Another has called for the adoption of Section 343A of the Restatement of Torts. n117 Of
course, until the "Baseball Facility Liability Act" is stricken from Illinois law, spectators have no chance to recover
damages caused by foul balls in Illinois unless they were sitting behind a defective screen when injured or they can
[*616] show they were injured because of willful and wanton misconduct. n118 However, an elaborate change would
not be necessary, if the statute were to be stricken, to make the law concerning spectator injury more equitable.
In the late 1990s there does not seem to be any justification for treating baseball differently than any other sport or
event. n119 Thus, a good solution for ballpark liability would be to adopt the law that is used for golf. n120 Under such a
solution, the ballpark would owe a duty of reasonable care to spectators for any injury they may incur at the ballpark.
n121
If the spectator knowingly and voluntarily assumed risks that were inherent and incidental to baseball, he would be
barred recovery because the assumed risks were not created by the ballpark, but by the nature of the activity. Therefore,
the ballpark should not be held liable. n122 However, if the spectator did not knowingly and voluntarily assume the risk
of injury or if the ballpark somehow increased the spectator's risk of injury, whether or not the ballpark's duty of care
was breached would be a question of fact for a jury. n123
Utilization of the proposed law would result in more equitable outcomes than past decisions and decisions under
the current statute. Application of the proposed law would be an incentive for ballpark owners or operators to sufficiently screen the most dangerous areas of the ballpark. Also, the ballpark would have additional incentive to warn inexperienced spectators, probably through signs or a public address system, that balls may be directed at them at a fast
rate of speed. Furthermore, the ballpark would have an incentive to limit dangerous sideshows to the periods between
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18 N. Ill. U. L. Rev. 601, *
innings. However, under the proposed law, the ballpark would not be liable to the fanatic that is injured while attempting to catch every foul ball that is hit into the seating area.
Conclusion
There has been a long history of spectators being hit by foul balls and most of them were unable to recover any
compensation for their injury, regardless of the severity, even if the ballpark owner or operator was [*617] negligent.
n124
The present law in Illinois reflects the notion that baseball has historically been a legal anomaly and makes recovery
virtually impossible for a spectator injured by a foul ball. n125 Thus, application of the present statute could result in
some very harsh outcomes, especially when the ballpark increases the spectator's risk of injury or has benefited from the
risk of injury assumed by the spectator. n126 However, ballpark owners and operators are protected even if they commit
what would otherwise be a negligent act that results in a spectator being seriously injured. n127 Yet, owners and operators of other sports and entertainment events rarely enjoy a statute holding them harmless. n128 Thus, the "Baseball Facility Liability Act" should be stricken and the proposed law should be adopted. n129
Legal Topics:
For related research and practice materials, see the following legal topics:
GovernmentsCourtsCommon LawTortsNegligenceDefensesAssumption of RiskAthletic & Recreational ActivitiesTortsPremises Liability & PropertyGeneral Premises LiabilityPremisesRecreational FacilitiesSports Facilities
FOOTNOTES:
n1 Ill. Comp. Stat. 38/10 (West Supp. 1998). The Baseball Facility Liability Act is an Illinois statute that vastly restricts any possible recovery by baseball spectators struck by stray balls or bats. Id.
n2 Flood v. Kuhn, 407 U.S. 258, 262 (1972).
n3 Id.
n4 See 745 Ill. Comp. Stat. 38/10 (West Supp. 1998).
n5 William T. Champion, Jr., "At the Ol' Ball Game" and Beyond: Spectators and the Potential for Liability, 14 Am. J. Trial Advoc. 495,
497 (1991).
n6 595 N.E.2d 570 (Ill. App. Ct. 1992).
n7 See 745 Ill. Comp. Stat. 38/10 (West Supp. 1998); Robert Neymeyer, Fans Strike Out with Foul Ball Litigation, in Sports and the Law:
Major Legal Cases 24, 26 (Charles E. Quirk ed., 1996).
n8 Id.
n9 Id.
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18 N. Ill. U. L. Rev. 601, *
n10 745 Ill. Comp. Stat. 38/10 (West Supp. 1998).
n11 See Champion, supra note 5, at 497.
n12 Under the traditional negligence analysis, the trial court will determine if the defendant owes a duty of care to the plaintiff. Schentzal v.
Philadelphia Nat'l League Club, 96 A.2d 181, 183 (Pa. Super. Ct. 1953). See Coronel v. Chicago White Sox, 595 N.E.2d 45 (Ill. App. Ct.
1992); Mary C. St. John, Strike One, and You're Out: Should Ballparks Be Strictly Liable to Baseball Fans Injured by Foul Balls?, 19 Loy.
L.A. L. Rev. 589, 590 (1985). If a duty of care is owed to the plaintiff, a trier of fact will determine if the duty was breached. Schentzal, 96
A.2d at 183. See Coronel, 595 N.E.2d at 46. If a duty was breached, the defendant acted negligently and will be subject to liability if the
negligent act was the cause of the plaintiff's injury, unless the defendant has an affirmative defense. Schentzal, 96 A.2d at 183. See Coronel,
595 N.E.2d at 46.
n13 745 Ill. Comp. Stat. 38/10 (West Supp. 1998).
n14 Spencer Waller et al., Baseball and the American Legal Mind 391 (1995).
n15 Charles E. Quirk, Sports and the Law: Major Legal Cases 24 (1996). Other dangers include getting hit by a stray bat, being injured by
other fans, or being injured intentionally by players or coaches. Id.
n16 Id.; see generally Yates v. Chicago National League Ball Club, Inc., 595 N.E.2d 570 (Ill. App. Ct. 1992).
n17 St. John, supra note 12, at 591. See generally Maytnier v. Rush, 225 N.E.2d 83, 89 (Ill. App. Ct. 1967). One court distinguished the
limited duty owed by the ballpark from the assumption of risk doctrine by stating that in baseball the spectator participates in the sport by
watching. While watching, the spectator subjects himself to certain risks that are necessarily incidental and inherent in the game. Brown v.
San Francisco Baseball Club, 222 P.2d 19, 20 (Cal. Ct. App. 1950). The Brown court maintained that these risks are obvious and should be
observed in the exercise of reasonable care. Id. However, that does not mean that the spectator has assumed the risk of being injured by the
ballpark operator's negligence. Id. Instead, by voluntarily entering into the sport as a spectator, the patron knowingly accepts the reasonable
risks that are inherent and incidental to the game of baseball. Id. See also Jones v. Three Rivers Management Corp., 394 A.2d 546, 549 (Pa.
1978).
n18 St. John, supra note 12, at 59. The assumption of risk doctrine has been used as an affirmative defense to negligence after a breach of
duty has been found. Id. Additionally, the assumption of risk doctrine has also been used as a reason for limiting the duty of the ballpark before any breach of duty has been established. Id. Compare Baker v. Topping, 15 A.D.2d 193, 222 (N.Y. App. Div. 1961) (baseball spectator
barred recovery under assumption of the risk doctrine) with Akins v. Glens Falls City School Dist., 424 N.E.2d 531 (N.Y. 1981) (baseball
spectator barred recovery because stadium satisfied legal duty). See generally Crane v. Kansas City Baseball & Exhibition Co., 153 S.W.
1076 (Mo. Ct. App. 1913); Quinn v. Recreation Park Assn., 46 P.2d 144 (Cal. 1934); Keys v. Alamo Baseball Co., 150 S.W.2d 368 (Tex.
App. 1941); Cates v. Cincinnati Exhibition Co., 1 S.E.2d 131 (N.C. 1939); Stradner v. Cincinnati Reds, 316 N.E.2d 924 (Ohio Ct. App.
1972).
n19 See Crane, 153 S.W. at 1076; Wells v. Minneapolis Baseball & Athletic Assoc., 142 N.W. 707, 708 (Minn. 1913).
n20 Crane, 153 S.W. at 1076.
n21 Id. The Crane court held that this duty was satisfied as a matter of law because the ballpark had provided screened seats in the grandstand and had given the plaintiff the opportunity to purchase a ticket for a seat protected by the screen. Id. Additionally, later cases deter-
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18 N. Ill. U. L. Rev. 601, *
mined that the ballpark does not have to provide screened seats for every spectator that wishes to have one, regardless of the number of
spectators who come to see the game. See Brisson v. Minneapolis Baseball & Athletic Ass'n, 240 N.W. 903, 904 (Minn. 1932). Instead, the
Brisson court held the ballpark only needed to provide enough screened seats for those who may be reasonably anticipated to desire such
seats to meet the duty it owes to spectators. Id. Thus, if a patron wished to purchase a screened seat and none were available, then if the patron subsequently purchased a non-screened seat, the patron was not owed a greater duty and assumed the risk as if the patron had originally
wished to purchase a non-screened seat. Id.
n22 Crane, 153 S.W. at 1077. See also Wells, 142 N.W. at 708.
n23 Wells, 142 N.W. at 708.
n24 Boynton v. Ryan, 257 F.2d 70 (3d Cir. 1958). Spectators should not be able to recover if they attempt to catch a foul ball but fail, and
the ball strikes them. Id. See also Jones v. Three Rivers Management Corp., 394 A.2d 546, 549 (Pa. 1978).
n25 Crane, 153 S.W. at 1077. The Crane court maintained that those who participate as spectators assume the obvious risk of being hurt by
foul balls. Id. See Murphy v. Steeplechase Amusement Co., 166 N.E. 173 (asserting "the timerous may stay home"). See also Brisson, 240
N.W. 903; Schentzel v. Philadelphia Nat'l League Club, 96 A.2d 181 (Pa. Super. Ct. 1953).
n26 Crane, 153 S.W. at 1077.
n27 Id.
n28 Id.
n29 Id.
n30 Id. Courts have often taken notice of the favorable position baseball occupies in American culture. See Yates v. Chicago Nat'l League
Ball Club, Inc., 595 N.E.2d 570, 578 (Ill. App. Ct. 1992). Because of this favorable position, "baseball sometimes appears to occupy an
anomalous position in American law." Id. See Flood v. Kuhn, 407 U.S. 258 (1972) (upholding Major League Baseball's exemption from antitrust laws).
n31 Crane, 153 S.W. at 1077. See Wells v. Minneapolis Baseball & Athletic Assoc., 142 N.W. 707, 708 (Minn. 1913).
n32 Wells, 142 N.W. at 707.
n33 Id. at 708.
n34 Id.
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18 N. Ill. U. L. Rev. 601, *
n35 Id.
n36 Id.
n37 Id.; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts 164 (5th ed. 1984).
n38 The court held the warning reasonable ballpark owner should make to caution and protect spectators from the incidental dangers of
which they may be ignorant is a question for the jury. Wells, 142 N.W. at 707, 708 (Minn. 1913).
n39 Joshua E. Kastenberg, A Three Dimensional Model of Stadium Owner Liability in Spectator Injury Cases, 7 Marq. Sports L.J. 187,
189 (1996). See also James G. Gaspard II, Spectator Liability in Baseball: Nobody Told Me I Assumed the Risk, 15 Rev. Litig. 229, 232
(1996); Maytnier v. Rush, 225 N.E.2d 83, 87 (Ill. App. Ct. 1967).
n40 Charles H. Perkins, The Liability of the Proprietor of a Baseball Park for Injuries to Spectators Struck by Batted or Thrown Balls, 1951
Wash. U. L.Q. 434, 436 (1951).
n41 Restatement (Second) of Torts, 343 (1965).
n42 See Brown v. San Francisco Ball Club, 222 P.2d 19, 20 (Cal. Ct. App. 1950).
n43 Id.
n44 The spectator would not be barred recovery because the inherent risks associated are a matter of "common knowledge" as the Crane
court held. Crane v. Kansas City Baseball & Exhibition Co., 153 S.W. 1076, 1077 (Mo. Ct. App. 1913). Instead, the spectator would be
barred recovery as a matter of law because he either had a subjective understanding of the risks associated with baseball or, at the very least,
should have observed the inherent risks associated with watching a baseball game. See Brown, 222 P.2d at 21; Quinn v. Recreation Park
Ass'n, 46 P.2d 144, 146 (Cal. 1935); Brisson v. Minneapolis Baseball & Athletic Ass'n, 240 N.W. 903, 904 (Minn. 1932). The Brisson court
held that no adult of reasonable intelligence could fail to realize that injury may occur if they were struck by a batted ball, even if the spectator had limited baseball experience. Brisson, 240 N.W. at 903. Further, no one of ordinary intelligence could watch more than part of a
baseball game without realizing that batters cannot, and do not, have complete control over the ball they are attempting to strike. Id.
n45 Such a danger should become apparent almost immediately to anyone of reasonable intelligence after viewing only a small portion of a
baseball game. See generally Brown, 222 P.2d at 21; Quinn, 46 P.2d at 146; Brisson, 240 N.W. at 904.
n46 See Coronel v. Chicago White Sox, 595 N.E.2d 45 (Ill. App. Ct. 1992); Yates v. Chicago Nat'l League Ball Club, 595 N.E.2d 570 (Ill.
App. Ct. 1992).
n47 Id. at 46. The plaintiff was sitting behind home plate, facing first base, approximately three seats away from the edge of a screen intended to protect spectators from foul balls. Id. at 45. During the sixth inning of the game, the plaintiff looked down to pick up some popcorn from her lap and was struck on the face by a foul ball which broke her jaw. Id.
Page 54
18 N. Ill. U. L. Rev. 601, *
n48 Id.
n49 Id. See generally Maytnier v. Rush, 225 N.E.2d 83 (Ill. App. Ct. 1967). The Coronel court affirmed that the existence of a duty is a
matter of law to be determined by the court and whether that duty has been breached is a matter of fact, which should be decided by a trier of
fact. Coronel, 595 N.E.2d at 46.
n50 Id.
n51 Id. at 47. See also Maytnier, 222 N.E.2d at 83.
n52 Coronel, 595 N.E.2d at 48.
n53 Id. The screen was 21 feet high and 39.7 feet wide. Id. The court viewed this as a factor which should be used by a trier of fact to determine whether the ballpark had violated the duty of care it owed to spectators. Id.
n54 Id.
n55 Id. The White Sox contended that they did not owe a duty to the plaintiff as a matter of law because a landowner owes no duty to warn
of open and obvious dangers. Id. See also Friedman v. Houston Sports Ass'n, 731 S.W.2d 572, 573 (Tx. Ct. App. 1987); Jones v. Three Rivers Management Corp., 394 A.2d 546, 550 (Pa. 1978). The Coronel court held that even though such a law may exist in other jurisdictions,
the White Sox had misstated the law in Illinois. Coronel, 595 N.E.2d at 48. The court determined that any rule which held the duty of reasonable care owed by a landowner to those on his premises never extends to conditions which are known or obvious to such entrants is not
the law in Illinois. Id. See also Ward v. K- Mart Corp., 554 N.E.2d 223 (Ill. 1990).
n56 Coronel, 595 N.E.2d at 46. The court also noted that the Illinois Supreme Court, in recent decisions, has harshly criticized section 343
of the original Restatement of Torts which was adopted by many jurisdictions as the general rule regarding ballpark owner liability. Id. at 49.
See also Ward, 554 N.E.2d 223. In Illinois, the ballpark's duty toward invitees was that of reasonable care. Coronel, 595 N.E.2d at 46.
n57 Id. at 49-50. See also Ward, 554 N.E.2d 223.
n58 Coronel, 595 N.E.2d at 46. The court noted that, at a baseball game, spectators could have their attention distracted by the lapse of time
during the game, food and drink vendors, and other various activities that occur. Id.
n59 Id.
n60 Yates v. Chicago Nat'l League Ball Club, 595 N.E.2d 570, 573 (Ill. App. Ct. 1992).
n61 Id. at 570. The plaintiff's father had purchased the game tickets through a retail store in Merrillville, Indiana. Id. He requested tickets
behind home plate. Id. Mr. Yates testified that he had been to Wrigley Field two or three times before the accident and was aware that foul
balls would leave the playing field and go into the seating area. Id. However, he also testified that he assumed the tickets he purchased were
for seats behind a screen. Id.
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18 N. Ill. U. L. Rev. 601, *
n62 Id.
n63 Id. The plaintiff testified that he had been to Wrigley Field approximately five times before the injury and that he knew foul balls
would leave the field and travel in many directions. Id. at 574.
n64 Id. at 573. The plaintiff was struck by a foul ball immediately after he had bet his sister whether the batter, Leon Durham, would get a
hit. Id. at 574. The plaintiff testified that he saw only a white streak before he was hit by the baseball. Id.
n65 Id. at 573.
n66 Id.
n67 Id.
n68 Id. Before the injury, the plaintiff had played basketball and organized baseball; however, testimony suggested that he could no longer
catch a baseball. Id.
n69 Id.
n70 No punitive damages were requested. Id. at 581.
n71 Id. at 578.
n72 Id.
n73 Id.
n74 Coronel v. Chicago White Sox, 595 N.E.2d 45 (Ill. App. Ct. 1992); Yates v. Chicago Nat'l League Ball Club, 595 N.E.2d 570, 578 (Ill.
App. Ct. 1992). The Coronel court measured the ballpark's duty without reference to requests for screened seats. Coronel, 595 N.E.2d at 45.
The defendant asserted that it was entitled to a judgement notwithstanding the verdict because the plaintiff had not introduced evidence regarding the demand for screened seats. Yates, 595 N.E.2d at 578. The generally accepted rule in virtually all other jurisdictions was that the
ballpark's duty is satisfied if the owner or occupier provides screening for the most dangerous portion of the grandstand and for those who
may be reasonably anticipated to desire protected seats for a typical game. Id. Although the general rule would appear to impose a more substantial duty on the defendant ballpark, it did not do so because courts would require the plaintiff to establish evidence regarding the average
demand for protected seats in addition to showing that there was an issue of material fact regarding the adequacy of the protective screen
before a trier of fact was allowed to decide the matter (emphasis added). See Brisson v. Minneapolis Baseball & Athletic Ass'n, 240 N.W.
903, 904 (Minn. 1932); Akins v. Glens Falls City School Dist., 424 N.E.2d 531, 533 (N.Y. Ct. App. 1981).
Page 56
18 N. Ill. U. L. Rev. 601, *
n75 Yates, 595 N.E.2d at 578.
n76 Id. The expert was Allan R. Caskey. Id. at 574- 575. He had received a doctorate in the field of recreation and parks administration
from the University of Illinois in 1974. Id. at 575. On cross-examination, Caskey testified that he was not an architect, nor an engineer. Id.
n77 Id.
n78 This evidence was introduced by the defendant's expert witness, Richard de Flon, who was an architect that had exclusively worked on
sports facilities since 1970. Id. at 576. He further testified that the dimensions of the screen fell within the standards of major league ballparks. Id.
n79 Id. at 576. There were also 52 other "foul ball incidents" that did not occur around the home plate area. Id. at 582.
n80 745 Ill. Comp. Stat. 38/10 (West Supp. 1998).
n81 Neymeyer, supra note 7, at 26.
n82 745 Ill. Comp. Stat. 38/10 (West Supp. 1998). The Act became effective law on September 24, 1992. 745 Ill. Comp. Stat. 38/49 (West
Supp. 1998). See Neymeyer, supra note 7, at 26.
n83 " Baseball" includes the game of baseball or softball, including practice, regardless of whether it is played on a professional or amateur
basis and regardless of whether it is played under an organized or league structure or outside of any such structure. 745 Ill. Comp. Stat. 38/5
(West Supp. 1998).
n84 " Baseball Facility" means any field, park, stadium, or any other facility used to play baseball, regardless if it is used for other purposes.
Id. The facility may be owned or operated by any individual, partnership, corporation, unincorporated association, the State or any of its
agencies, officers, instrumentalities, elementary or secondary schools, colleges or universities, unit of local government, school district, park
district, or other body politic and corporate. Id.
n85 " Willful and wanton conduct" is conduct which shows an actual or deliberate intention to cause harm or which, if unintentional, shows
an utter indifference to or conscious disregard for the safety of others or their property. Id.
n86 745 Ill. Comp. Stat. 38/10 (West Supp. 1998). During, the State of Illinois General Assembly (87th General Assembly, Senate Transcript-June 25, 1992), Senator Marovitz expressed concern regarding the outcome of the Yates case. He stated, "the State of Illinois finds itself in a unique position where one of our courts has found liability on sports franchises for foul balls that are hit in the stands, unlike other
jurisdictions around the country. [This] Amendment sponsored by myself and Senator Phillip, clarifies the fact that there is no liability in
those kind of situations." Senator Kelly expressed some concern regarding the legislation. He stated, " A lot of families and a lot of people
are not aware, and I think the parks ought to do more to advise them of the dangers involved. There's too many children and minors and
women that [have not played baseball] and seen these line shots that come off faster than the guns the Senator has been trying to stop. I think
that these ball parks ought to take a look at something like they do in hockey, between first base and home base, and between third base and
home base; they ought to have some kind of [see-through shield that protects spectators from bodily injury.]"
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18 N. Ill. U. L. Rev. 601, *
n87 745 Ill. Comp. Stat. 38/10 (West Supp. 1998). See Coronel, 595 N.E.2d at 45; Yates, 595 N.E.2d 570. Under the statute, it appears that
a plaintiff might be able to successfully contend that a ballpark's protective screen is so small, that the size of the screen is willful and wanton misconduct. See 745 Ill. Comp. Stat. 38/10 (West Supp. 1998).
n88 See 745 Ill. Comp. Stat. 38/10 (West Supp. 1998). See also Coronel, 595 N.E.2d at 45; Yates, 595 N.E.2d at 570.
n89 See 745 Ill. Comp. Stat. 38/10 (West Supp. 1998). See also Coronel, 595 N.E.2d at45; Yates, 595 N.E.2d at 570.
n90 See 745 Ill. Comp. Stat. 38/10 (West Supp. 1998). The fence cannot be held defective because of its height or width. Id.
n91 Id.
n92 Lowe v. California League of Professional Baseball, 56 Cal. App. 4th 112 (Cal. Ct. App. 1997); Ill. Comp. Stat. 38/10 (West Supp.
1998).
n93 Id. at 114. The game was being played at the home field of the Rancho Cucamonga Quakes, a minor league baseball team. Id. The
plaintiff had been to the stadium on at least two other occasions. Id. at 115. The plaintiff had seen balls hit into the seating area on several
occasions and had seen another fan hit by a foul ball; however, he did not request a seat behind the ballpark's screen. Id.
n94 Id. at 114. The mascot was a caricature of a dinosaur, with a tail that protruded from the costume. Id. The mascot performed his routine
nightly on the playing field and in the seating area. Id. at 116. The reason for the mascot was related to public relations, especially for young
spectators. Id.
n95 Id. at 114. The mascot had been moving back and forth behind the plaintiff for approximately two minutes before the injury occurred.
Id. at 116. At the time of the injury, the plaintiff was not eating or drinking anything. Id. at 118.
n96 Id. The plaintiff had been facing the playing field before the mascot arrived and did not consent to the mascot touching his shoulder.
Id. at 115. When the mascot's tail touched his shoulder, he turned to see who it was and at that time was struck by a foul ball. Id. at 115.
n97 Id. at 115.
n98 Id. at 114. This is the common law rule in most jurisdictions. See Lowe, 56 Cal. App. 4th at 112.
n99 Lowe, 56 Cal. App. 4th at 114.
n100 Id. The court held that the mascot's antics during the actual playing of the game prevented the plaintiff from being able to protect
himself from any batted ball and foreseeably increased the risk over those which were inherent in the sport. Id. at 115.
n101 Id. at 115.
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18 N. Ill. U. L. Rev. 601, *
n102 Id. at 112.
n103 745 Ill. Comp. Stat. 38/10 (West Supp. 1998). It is doubtful that the existence of a mascot would rise to the level of willful and wanton misconduct in nearly every case.
n104 745 Ill. Comp. Stat. 38/10 (West Supp. 1998).
n105 See generally Lowe, 56 Cal. App. 4th at 114.
n106 745 Ill. Comp. Stat. 38/10 (West Supp. 1998).
n107 Id. Further, spectators also assume the risk if they are helping the ballpark complete a food or beverage sale to another spectator. For
instance, if the vendor is selling a hot dog to a fan in the third row, he could ask a fan in the second row to pass the hot dog to the fan in the
third row. The fan in the second row, who is likely put in a compromising position if a foul ball is hit at him, receives absolutely no benefit
from his assistance and assumes the risk of injury while helping the ballpark complete the transaction.
n108 Id.
n109 745 Ill. Comp. Stat. 38/10 (West Supp. 1998).
n110 Id.
n111 See Yates, 595 N.E.2d at 570. In most jurisdictions, a plaintiff cannot recover for injuries caused by a foul ball. Id. See also Flood v.
Kuhn, 407 U.S. 258 (1972) (holding Major League Baseball is exempt from federal anti-trust laws, whereas other sports are not); Riley v.
Chicago Cougars Hockey Club, Inc., 427 N.E.2d 290 (Ill. App. Ct. 1981) (noting historical rule of non-liability for spectator injuries at
baseball games as opposed to liability for spectator injuries at other sporting events). However, in 1995, the Illinois legislature adopted the
Hockey Facility Liability Act. See 745 Ill. Comp. Stat. 52/5 (West Supp. 1998). The Hockey Facility Liability Act is virtually identical to the
Baseball Facility Liability Act.
n112 Duffy v. Midlothian Country Club, 481 N.E.2d 1037, 1040 (Ill. App. Ct. 1985). See Riley, 427 N.E.2d at 292. See generally Thomas
C. Logan, Fore! Liability to Spectators at Golf Tournaments, 13 Am. J. Trial Advoc. 1207 (1990); Karen M. Vieria, Fore! May Be Just Par
for the Course, 4 Seton Hall J. Sport L. 181 (1994). In Duffy, a golf spectator was struck in the eye by a golf ball. Duffy, 481 N.E.2d at
1040. The injury caused total blindness in the spectator's right eye. Id.
n113 See Duffy, 481 N.E.2d at 1040.
n114 Id. at 1043. The assumption of the risk doctrine completely bars any recovery by the plaintiff. Id. at 1041. The doctrine has been divided into two forms: express and implied. Id. Under the express form, the plaintiff and defendant have an agreement that the defendant does
not owe a duty to the plaintiff. Id. Such an agreement would be extremely rare in spectator liability cases. Id. The implied form of the assumption of the risk doctrine has been sub-divided into two categories: primary implied assumption of the risk and secondary implied as-
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sumption of the risk. Id. Primary implied assumption of the risk is applied when a plaintiff knowingly and voluntarily assumes risks that are
inherent in a particular activity or situation. Id. Since the assumed risks are not created by the defendant, but by the nature of the activity, the
defendant owes no duty to the plaintiff. Id. Secondary implied assumption of the risk was a true defense to negligence because the plaintiff
implicitly assumes the risks created by the defendant's negligence. Id. In Duffy, the court abolished the doctrine of secondary implied assumption of the risk because the doctrine of comparative negligence had been adopted in Illinois. Id. at 1043. The comparative negligence
doctrine factors the plaintiff's assumption of risk or misconduct into the apportionment of damages. Id. at 1042.
n115 See 745 Ill. Comp. Stat. 38/10 (West Supp. 1998); Yates v. Chicago Nat'l League Ball Club, 595 N.E.2d 570 (Ill. Ct. App. 1992).
n116 St. John, supra note 12.
n117 Gaspard, supra note 39. Section 343A provides: "Known or obvious dangers: (1) A possessor of land is not liable to his invitees for
physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor
should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts 343A (1965).
n118 745 Ill. Comp. Stat. 38/10 (West Supp. 1998).
n119 The recent labor problems associated with baseball may have made the sport more vulnerable to legal attack. However, as of October
1998, baseball does appear to be making a comeback in popularity due in large part to the home run record setting seasons of Mark
McGwire and Sammy Sosa.
n120 See Duffy, 481 N.E.2d at 1040. See also Logan, supra note 112; Vieria, supra note 112.
n121 See generally Duffy, 481 N.E.2d at 1040.
n122 Id.
n123 Id.
n124 See Yates v. Chicago Nat'l League Ball Club, 595 N.E.2d 570 (Ill. Ct. App. 1992).
n125 Id. See also 745 Ill. Comp. Stat. 38/10 (West Supp. 1998).
n126 See generally Lowe v. California League of Prof'l Baseball, 56 Cal. App. 4th 112 (Cal. Ct. App. 1997).
n127 745 Ill. Comp. Stat. 38/10 (West Supp. 1998).
n128 See Yates, 595 N.E.2d at 570.
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18 N. Ill. U. L. Rev. 601, *
n129 745 Ill. Comp. Stat. 38/10 (West Supp. 1998).
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994 of 999 DOCUMENTS
Copyright (c) 2009 Syracuse Law Review
Syracuse Law Review
2009
SYRACUSE LAW REVIEW
59 Syracuse L. Rev. 1039
LENGTH: 16083 words
2007-2008 SURVEY OF NEW YORK LAW: TORT LAW
NAME: Steven B. Prystowsky+
BIO: + Partner, Lester Schwab Katz & Dwyer, LLP; J.D., Brooklyn Law School; B.A., Yeshiva University.
LEXISNEXIS SUMMARY:
... The Court of Appeals reversed and reinstated the complaint, pointing out that the dumpster owner, in order to be
granted summary judgment, was required to show that "the dumpster was located neither in a driving lane on Zerega
Avenue nor in the zebra-striped safety zone where parking was not permitted." ... The Court of Appeals reversed, rejecting the Appellate Division's rationale, stating, "it is irrelevant that plaintiff was able to stop her vehicle without
striking Officer Weidl's vehicle:" Maldonado's negligence in rear-ending plaintiffs sic stopped vehicle does not absolve
Officer Weidl of liability as a matter of law. ... Two judges dissented, agreeing with supreme court that the ball club
played a "significant role in creating the danger that resulted in the injuries to plaintiff's son by providing an incentive
for retrieving and returning foul balls hit out of the stadium onto a public street." ... The Court rejected JAMC's argument that it was effectively the Port Authority's agent because the JAMC/Aero contract states that JAMC signed the
contract "as agents for the Port Authority." ... The mere fact that the accident occurred in a sidewalk area adjacent to
that portion used by the owner, without more, did not establish liability against the owner. ... For section 240(1) to
apply, "a plaintiff must show more than simply that an object fell causing injury to a worker." ... The Court of Appeals
agreed with the dissenters and reversed, observing: Here, the presence of two unconnected pipes protruding from a wall
was not "the risk which brought about the need for the ladder in the first instance" ... but was one of "the usual and ordinary dangers at a construction site" to which the "extraordinary protections of Labor Law § 240(1) do not extend." ...
Team 1, plaintiff, in a personal injury action, moved for permission to allow his counsel to conduct ex parte interviews
of the corporate defendant's employees who were on the job site at the time of the accident. ... The Court found "no
reason why a non-party treating physician should be less available for an off the record interview than the corporate
employees in Nieseg or the former corporate executive in Siebert," particularly because a personal injury plaintiff is
deemed to have waived the physician-patient privilege as to matters placed in issue in the litigation. ... The manufacturer raised other possible causes: (a) the transformer was opened and rewired after it left its possession and that water
could have entered the transformer during the process and (b) the transformer may have been rebuilt by Niagara Mohawk or one of its vendors. ... The Court pointed out that defendants could "challenge AIDS phobias and other emotional distress evidence by presenting medical and scientific proof concerning the probability of a plaintiff contracting
HIV after having tested negative at various points in time to ensure that the jury understands the risk a plaintiff actually
faced and the future risk of a plaintiff testing positive."
TEXT:
[*1039]
Introduction
This year's Survey reviews seventeen Court of Appeals decisions. All were unanimous except for dissents in three cases by Judge Smith, Judge Jones and Judge Pigott, respectively. What is surprising, however, is the number of reversals
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by the state's highest court. The Court of Appeals reversed the appellate divisions in more than fifty percent of the cases.
In non-Labor Law cases, the Court of Appeals reversed seven of the ten cases reviewed. In Labor Law cases, the Court
of Appeals reversed four of the seven cases reviewed. In the Appellate Division Labor Law cases that the Court of Appeals decided in 2008, only one was unanimous. Generally there were two dissents. Interpreting Labor Law section
240(1) continues to still perplex the courts as well as litigators. In non-Labor Law cases, the [*1040] only department
whose decisions (five) were unanimous was the Second Department. In the First Department cases (four) there was a
3-2 vote in each case. The Fourth Department had 3-2 votes in two of the cases and a 4-1 vote in a third.
I. Negligence
A. Assumption of the Risk
Under the doctrine of primary assumption of risk, a voluntary participant in a sport or recreational activity "consents to
those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from
such participation." n1 Participants and spectators, according to Chief Judge Cardozo, accept "the dangers that inhere in
it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at
a ball game the chance of contact with the ball." n2 "The timorous may stay at home." n3
In Roberts v. Boys & Girls Republic, Inc., plaintiff, after observing her son's Little League practice, sustained injuries when a baseball player in an off-field on-deck batting circle struck her with a bat. n4 The majority at the Appellate
Division held that plaintiff
assumed the risks entailed by her voluntary proximity to the game, among them the risk of being hit by a swung bat... .
Appreciation of the risk posed by a swung bat does not require thorough knowledge of the sport; the risk of injury from
such a mechanism was "perfectly obvious" and thus assumed by plaintiff despite the claimed lacunae in her knowledge
and experience of the game. n5
The dissenters took a contrary view. Plaintiff's injury did not result from a risk commonly associated with the game of
baseball, but rather from a risk that was created as a direct result of defendants permitting the use of this non-defined,
non-designated "on-deck" circle off the field of play in an area open to the public where plaintiff had every right to be.
The assumption of risk doctrine does "not preclude a recovery for negligent acts which unduly enhance such risks. n6
[*1041] The Court of Appeals affirmed concluding that plaintiff assumed the risk of her injuries because she
"concededly observed batting equipment and players swinging bats in the area where the accident occurred ... ." n7
B. Automobiles
In urban areas it is not unusual for an operator of an automobile to be confronted with a car, van or truck double-parked or parked in a no-parking area. In Smalls v. AJI Industries, Inc., a twenty-cubic yard refuse container
(dumpster) was parked on the north-bound side of Zerega Avenue. n8 Defendant Jenkins, in turning left onto Zerega
Avenue, made a wide turn and struck the dumpster. n9 Plaintiff, a passenger, sued both Jenkins, the driver of his vehicle,
and the owner of the dumpster. n10 Defendants moved for summary judgment, which was denied by the supreme court. n11
There was no witness who testified that the dumpster was parked in a parking area or in a safety zone. n12
On appeal, the Appellate Division reversed and dismissed the complaint against the driver and the owner of the
dumpster by a 3-2 vote. n13 The majority concluded that plaintiff failed to raise a triable issue of fact concerning appellants' negligence observing that there is no proof that the dumpster was situated in an unsafe location. n14 In addition, the
majority rejected plaintiff's assertion that the owner of the dumpster was negligent in "failing to place reflectors or lights
on the dumpster" because it was unsupported by any authority - expert or otherwise. n15
The dissenters found that the evidence raised an issue of fact whether the dumpster encroached on the lane of travel
or was otherwise dangerously situated and whether such negligence was a proximate cause of the accident. n16 The dissenters noted that "a jury could reasonably find that the location of [the dumpster], without lights or reflector, was a
hazardous condition that contributed to the injuries sustained by the plaintiff." n17
The Court of Appeals reversed and reinstated the complaint, pointing [*1042] out that the dumpster owner, in
order to be granted summary judgment, was required to show that "the dumpster was located neither in a driving lane on
Zerega Avenue nor in the zebra-striped safety zone where parking was not permitted." n18
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With regard to warning devices, the Court ruled that if the dumpster were located in a parking lane, "there was no
more need for warning lights or devices than there would have been for a vehicle parked in the same spot." n19
For years, the Appellate Division, Second Department, has ruled that in a multiple vehicle chain-reaction collision,
when a vehicle comes to a complete stop and does not strike the vehicle in front, who stopped short, and is hit in the
rear, the first vehicle that stopped short could not have contributed to the cause of the accident. n20
In Tutrani v. County of Suffolk, the Second Department reached a similar result after a jury trial where plaintiff,
Pamela Tutrani, stopped her vehicle before striking the vehicle operated by Police Officer Lee Weidl who had stopped.
n21
Plaintiff, however, was unable to avoid being struck by the third vehicle, operated by Darlene Maldonado. n22 A jury
found both Maldonado and Officer Weidl each fifty percent at fault. n23 The Second Department, however, set aside the
jury verdict: "however, in view of the evidence that the plaintiff was able to come to a complete stop without hitting
Officer Weidl's vehicle, Officer Weidl was not a proximate cause of the collision between the plaintiff's vehicle and
Darlene Maldonado's vehicle." n24
The Court of Appeals reversed, rejecting the Appellate Division's rationale, stating, "it is irrelevant that plaintiff
was able to stop her vehicle without striking Officer Weidl's vehicle:" n25
Maldonado's negligence in rear-ending plaintiffs [sic] stopped vehicle does not absolve Officer Weidl of liability as a
matter of law. Clearly, Officer Weidl's actions created a foreseeable danger that vehicles would have to brake aggressively in an effort to avoid the lane obstruction [*1043] created by his vehicle, thereby increasing the risk of rear-end
collisions. n26
C. Duty
When does a party's encouragement to conduct an activity over which it has no control create a duty to warn if the activity is potentially dangerous?
In Darby v. Compagnie National Air France, guests at a hotel were encouraged to use a nearby beach and were
provided with umbrellas, towels and a security escort system. n27 The hotel did not, however, warn beachgoers about
dangerous surf conditions. n28 After plaintiff's decedent drowned swimming at the beach, plaintiff sued the hotel alleging
that it was negligent in failing to warn beachgoers of the dangerous surf conditions. n29
The Court of Appeals concluded no duty existed even though the hotel had encouraged and facilitated use of the
beach. n30 The hotel was not the insurer of its guests' safety at a locale over which it had no control. n31
The Court of Appeals has been consistent in holding that there is no duty to control the conduct of third persons to
prevent them from causing injury to others, even where, as a practical matter, the defendant could have exercised such
control. n32 The only exception is when there is sufficient authority and ability to control the conduct of third persons. n33
In Haymon v. Pettit, plaintiff's son was outside a stadium owned by a non-profit organization that rewarded persons
catching foul balls hit out of the stadium with two free tickets for returning a foul ball. n34 Plaintiff's son was injured
when he ran into the street to retrieve a foul ball and was struck by an automobile operated by defendant Donald Pettit.
n35
Plaintiff sued the driver and the owner of the stadium because the ball club provided an incentive to fans outside the
stadium to retrieve foul balls for free tickets. n36
The supreme court agreed with plaintiff and denied the ball club's [*1044] motion for summary judgment. n37 The
ball club owed a duty to its fans outside the stadium "to prevent them from chasing foul balls into the nearby public
street, a foreseeably dangerous condition it took part in creating." n38
The Appellate Division disagreed. n39 It concluded that the ball club owed no legal duty to plaintiff's son even
though it may have been foreseeable that a person would run into the street to pursue a foul ball because "foreseeability
of harm does not define duty." n40 Two judges dissented, agreeing with supreme court that the ball club played a "significant role in creating the danger that resulted in the injuries to plaintiff's son by providing an incentive for retrieving and
returning foul balls hit out of the stadium onto a public street." n41
The Court of Appeals affirmed concluding that an owner of land "generally owes no duty to warn or protect others
from a dangerous condition on adjacent property unless the owner created or contributed to such condition." n42 The
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Court rejected the argument that the defendant's "foul ball returned for tickets" promotion foreseeably exposed fans mostly children - to the hazard of chasing foul balls into the street. n43 However, foreseeability is only applicable if a
duty exists. n44 Here, the Court found no duty:
The dangers of crossing the street and individuals electing to cross it in pursuit of foul balls exist independent of the
Ball Club's promotion. This, coupled with the fact that the Ball Club could control neither the public street nor third
persons who use it, strongly militates against finding of duty. n45
D. Employer-Employee
The affirmative defense of Workers' Compensation Law sections 11 and 29(6) is often invoked by a third party who
claims that plaintiff is a special employee and barred from suing. n46
[*1045] In Fung v. Japan Airlines Co., Ltd., the defendant Japan Airlines Management Corp. ("JAMC") claimed
it was the managing agent of plaintiff's employer, the Port Authority of New York and New Jersey ("Port Authority")
and therefore could not be sued by a Port Authority employee. n47
JAMC leased Building 14 at John F. Kennedy International Airport from the Port Authority and was required to
maintain the building and the building's parking lot. n48 JAMC signed a contract to remove snow with Aero Snow Removal Corp. ("Aero"). n49 When signing the contract, JAMC's president indicated that he signed the snow removal contract with Aero on behalf of JAMC as "the agent for [the] Port Authority." n50
Plaintiff Brent Fung was injured when he slipped and fell on a patch of ice in the parking lot of Building 14. n51 He
sued JAMC who impleaded Aero. n52 JAMC moved for summary judgment dismissing plaintiff's complaint based on its
Workers' Compensation Law defense. n53
The Appellate Division, in a short opinion without any discussion, reversed the supreme court and dismissed plaintiff's action against JAMC finding an employee/employer relationship: "since the injured plaintiff recovered workers'
compensation benefits from his employer, the Port Authority, and Japan Airlines who was serving as the Port Authority's managing agent when the accident occurred, the plaintiffs' claims against Japan Airlines are barred pursuant to the
exclusivity provisions of Workers' Compensation Law § 29." n54
[*1046] The Court of Appeals questioned whether JAMC was plaintiff's employer and entitled to claim exclusivity. n55 The Court concluded it was not and found that JAMC's defense must "fail as a matter of law," noting that a key
element in determining an employer/employee relationship, found in numerous previous cases, was missing here. n56
"Essential to all of these decisions is a working relationship with the injured plaintiff sufficient in kind and degree so
that the third party or the third party's employer, may be deemed plaintiff's employer." n57
The Court rejected JAMC's argument that it was effectively the Port Authority's agent because the JAMC/Aero
contract states that JAMC signed the contract "as agents for the Port Authority." n58 The Court held that "the title alone,
however, does not suffice" since JAMC never explained its working relationship with the plaintiff or his employer. n59
The Court reasoned:
The record reflects that the Port Authority directed, supervised and controlled all aspects of Fung's employment as an
electrician... . Moreover, JAMC does not seriously argue that it is Fung's coemployee. We thus conclude, as did Supreme Court, that the Port Authority and JAMC are separate legal entities with separate day - to - day control over their
respective employees' work. Accordingly, neither section 11 nor section 29(6) serves to bar plaintiffs' action against
JAMC. n60
E. Landowners
Until September 14, 2003, the City of New York was generally liable for accidents caused by sidewalk defects. n61
Where a sidewalk accident occurred before that date, the abutting property owner was not liable unless the owner either
caused the defect to occur because of some special use, or actually created the defect. n62 The mere fact that the accident
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occurred in a sidewalk area adjacent to that portion used by the owner, without more, did not establish liability against
the owner. n63 As soon as section 7-210 of the [*1047] Administrative Code was effective, lawsuits against abutting
landowners proliferated. n64
The first case to reach the Court of Appeals involved the question whether a tree well was or was not part of the
sidewalk. n65 If it was part of the sidewalk the abutting owner was liable; otherwise, the City of New York. n66 Plaintiff
Dzafer Vucetovic was walking down East 58th Street in Manhattan when he stepped into a tree well on the sidewalk
and tripped on one of the cobblestones. n67 Four months earlier, the City of New York removed a tree directly in front of
243 East 58th Street, a building owned by the defendant. n68 The Appellate Division, First Department, after reviewing
sections of the Administrative Code of the City of New York, affirmed the order granting summary judgment to the
building owner. n69
Two justices dissented agreeing with the plaintiff that the section covers all portions of the sidewalk, including tree
wells. n70 The dissenting judges found, based on definitions of sidewalk in the Vehicle and Traffic Law and the Administrative Code, that tree wells lie within the physical boundaries of the sidewalk and would fall within the scope of the
term "sidewalk." n71
The Court of Appeals unanimously affirmed the appellate division order. n72 The Court strictly construed the statute
because it was in derogation of the common law and established liability where none previously existed. n73 In analyzing
section 7-210, the Court noted that the regulation provisions applied to the types of maintenance work to be performed,
not the "specific features of what constitutes a sidewalk:"
Given the statutory silence and the absence of any discussion of tree wells in the legislative history, it seems evident that
the City Council did not consider the issue of tree well liability when it drafted section 7-210. If the City Council desired to shift liability for accidents involving tree wells exclusively to abutting landowners in derogation of the common
[*1048] law, it needed to use specific and clear language to accomplish this goal. n74
II. Labor Law
No survey of tort law is complete without discussing at least one Labor Law section 240(1) decision. This year's Survey, however, reviews seven major and minor decisions concerning the applicability of Labor Law section 240(1).
In Sanatass v. Consolidated Investing Co., Inc., defendant Consolidated Investing Company owned a commercial
building. n75 It leased the eleventh floor of the building to Chroma Copy International, who assigned the lease to C2 Media, LLC, who agreed to abide by the terms of Chroma's lease. n76 The lease included a provision that "tenant shall make
no changes in or to the demised premises of any nature without Owner's prior written consent." n77 A rider to the lease
stated that "all renovations, decorations, additions, installations, improvements and/or alterations of any kind or nature
in the Demised Premises ... shall require the prior written consent of Landlord." n78
Without notifying the landlord, C2 Media hired JM Haley Corporation to install a commercial air conditioning unit
in its space. n79 Plaintiff Christopher Sanatass, who JM Haley employed as a mechanic, was injured on the premises
while drilling holes into the ten-foot-high ceiling to affix rods designed to hold the large commercial unit when one of
the portable lifts used to hoist the air conditioning unit failed and knocked plaintiff to the floor. n80
Citing violations of Labor Law sections 240(1) and 241(6), plaintiff sued both the owner and tenant. n81 The owner
moved for summary judgment which the appellate division granted by a vote of three to two. n82 In granting the owner's
motion, the appellate division majority relied on a 2004 decision of the Court of Appeals, Abbatiello v. Lancaster Studio
[*1049] Assocsiates. n83
In Abbatiello, an injured cable technician was on the property requested by the tenant under Public Service Law
section 228. n84 This section was enacted to assure that tenants have access to cable television, not to impose liability on
landlords for personal injuries where such liability would not otherwise exist. n85 Plaintiff commenced a Labor Law
240(1) action against the owner of the building when he fell from a ladder while inspecting or repairing a cable box
attached to the exterior of the building. n86
The First Department dismissed plaintiff's complaint, which was affirmed by the Court of Appeals. n87 In affirming,
the Court of Appeals rejected the line of cases holding building owners strictly liable for the injuries of workers on their
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premises. n88 The Court of Appeals refused to impose absolute liability on an owner where a cable technician is injured
while performing work without the owner's knowledge or consent. n89 Thus, the owner cannot be charged with the duty
of providing the safe working conditions contemplated by Labor Law section 240(1) for cable television repair people
for whom it is wholly unaware especially since the cable franchiser has the right to maintain its facilities at the premises
free from interference after installation of the cable. n90
In Sanatass, two judges dissented at the appellate division finding Coleman and Celestine applicable and Abbatiello
distinguishable. n91 The Court agreed with the dissenters and reversed, reaffirming its rulings in Celestine, Gordon and
Coleman:
Our precedents make clear that so long as a violation of the statute proximately results in injury, the owner's lack of
notice or control over the work is not conclusive - this is precisely what is meant by absolute or strict liability in its
context ... . Hence, Consolidated may not escape strict liability as an owner based on its lack of notice or control over
the [*1050] work ordered by its tenant. n92
Finally, the Court noted that it is for the Legislature, not the Court of Appeals, to carve out exceptions to the broad
reach of owner liability under section 240(1). n93
Judge Smith dissented joined by Judge Read. n94 The dissenters pointed out that the Court's decision increases the
already heavy burden that Labor Law section 240(1) places on New York property owners. n95 Moreover the decision
treats this landlord ""as an insurer,' - contrary to our view of the purpose of the statute as expressed in Blake" v. Neighborhood Housing Service of N.Y. City. n96
As a result of this decision, the Court of Appeals, in Morales v. D&A Food Service, later reversed an earlier decision of the Appellate Division, First Department, where the landlord also moved for summary judgment because he was
an out of possession owner who lacked notice or knowledge of the work performed at the site and did not supply the
equipment. n97 In a one paragraph decision citing Sanatass, the Court reversed. n98
Not every worker who falls at a construction site or is injured by a falling object is entitled to the extraordinary
protections of Labor Law section 240(1). Thus where a worker "was exposed to the usual and ordinary dangers of a
construction site, and not the extraordinary elevation risk envisioned by Labor Law section 240(1)," a plaintiff cannot
recover under the statute. n99 The difficulty with this exception is applying it.
In a major ruling in 2001, the Court of Appeals, in Narducci v. Manhasset Bay Associates, stated that Labor Law
section 240(1) applies to both "falling worker" and "falling object" cases but noted that not every falling object triggers
Labor Law section 240(1). n100 For section 240(1) to [*1051] apply, "a plaintiff must show more than simply that an
object fell causing injury to a worker." n101 A "plaintiff must show that the object fell, while being hoisted or secured
because of the absence or inadequacy of a safety device of the kind enumerated in the statute." n102
Four years later, however, the Court in Outar v. City of New York retreated. n103 In Outar, an unsecured dolly, which
plaintiff used in his work and was stored on top of a bench wall that was five and a half feet high, fell and hit him. n104
The supreme court granted the defendant City summary judgment. n105 On appeal, the Second Department reversed,
finding that "the height differential was sufficient to implicate the special protections afforded by Labor Law section
240(1)." n106 In a one-paragraph decision, decided pursuant to section 500.4 of the Rules of the Court of Appeals, the
Court affirmed, stating "the elevation differential between the dolly and plaintiff was sufficient to trigger Labor Law §
240(1)'s protection, and the dolly was an object that required securing for the purposes of the undertaking." n107
After these decisions courts debated whether to apply Narducci, requiring that a fallen object must be in the actual
process of being "hoisted and/or secured" in order for the statute to apply or Outar where a fallen object liability is not
limited to situations where the fallen object is being actively hoisted or secured at the time it falls. This conflict was
highlighted in Quattrocchi v. F.J. Sciame Construction Corp. where the majority and dissenters' position in the Appellate Division relied upon whether you invoke Narducci or Outar. n108
In Quattrocchi, plaintiff was injured on a construction site when planks placed above doors to act as a makeshift
scaffold for an air [*1052] conditioner fell on him. n109 The question before the court was whether the planks were a
"falling object" covered by Labor Law section 240(1). n110 The majority found a triable issue of fact, citing Outar, because the "planks should have been secured and "defendant's failure to secure (the planks) establishes its liability as a
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matter of law.'" n111 Two dissenting judges, however, voted to reverse and grant partial summary judgment to the defendants dismissing the Labor Law section 240(1) claim against them citing Narducci:
Since it is undisputed that the plank that fell was not "a material being hoisted or a load that required securing for the
purposes of the undertaking at the time it fell," [] and "this was not a situation where a hoisting or securing device of the
kind enumerated in the statute would have been necessary or even expected," [] Labor Law § 240(1) does not apply. n112
The Court of Appeals unanimously voted with the majority who stated:
We agree with the Appellate Division majority that triable questions of fact preclude summary judgment on plaintiffs
Labor Law § 240(1) claim, including whether the planks were adequately secured in light of the purposes of the plank
assembly and whether plaintiff caused the accident by jostling the doors after disregarding the warning not to enter the
doorway area. n113
In Berg v. Albany Ladder Company, Inc., plaintiff was not found to be a "falling worker" entitled to the protection of
Labor Law section 240(1). n114
In Berg, plaintiff was standing atop several bundles of trusses about ten feet off the ground unloading steel trusses
with the assistance of a forklift operated by a co-worker. n115 While plaintiff was standing, one set of trusses rolled towards him presenting him with a Hobson's choice: "either be squashed or ride the load to the ground." n116 Plaintiff opted
to [*1053] ride the set of trusses to the ground and was injured. n117 Furthermore, "plaintiff acknowledged at his deposition that there was no particular safety device that would have prevented this accident and none has been identified on
appeal." n118 The Appellate Division, Third Department, therefore affirmed the dismissal of plaintiff's complaint noting
that falling off the back of a truck is "within the usual and ordinary dangers of a construction site and not the extraordinary elevation risk envisioned by Labor Law § 240(1)." n119
Justice Cardona dissented in part, distinguishing Toefer. n120 Labor Law section 240(1) applied because "plaintiff
was standing on a bundle of trusses approximately five feet higher than the bed of the truck and fell an estimated 10 feet
to the ground." n121
The Court of Appeals affirmed notwithstanding plaintiff's assertion that Labor Law section 240(1) applied to a
"falling worker" claim:
Although plaintiff asserts that the height at which he worked created an elevation-related risk, he failed to adduce proof
sufficient to create a question of fact regarding whether his fall resulted from the lack of a safety device. Consequently,
the courts below correctly granted summary judgment dismissing the Labor Law § 240(1) cause of action. n122
On the other hand, a different plaintiff's three-foot fall while cleaning an inside portion of a window at defendant's
dormitory was sufficient to trigger Labor Law section 240(1) because she was not provided with a safety device such as
ladder or scaffold. n123 In Swiderska v. New York University, the Appellate Division granted defendant's motion to dismiss finding the activity to be routine maintenance. n124
The Court of Appeals reversed stating that a commercial window cleaner is encompassed within the Labor Law
section 240(1):
Plaintiff established that she was injured while cleaning 10-foot-high windows in a college dormitory with a rag, which
required her to climb [*1054] upon pieces of furniture in order to complete her work - creating an elevation-related
risk - and she was not provided a ladder, scaffold or other safety device of the kind contemplated under the statute. n125
One of the exceptions of Labor Law section 240(1) is that it is not triggered where there is a fall from a ladder where
the ladder (a) is not defective and (b) the risk was one of the usual and ordinary dangers at a construction. n126
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In Cohen v. Memorial Sloan-Kettering Cancer Center, plaintiff was attempting to step down from a ladder during a
renovation project. n127 The first rung of the ladder, however, was blocked and inaccessible because a metal rod protruded from a piece of cast iron installed in the wall. n128 A second rod protruded a few inches behind the ladder's second
rung. n129 Plaintiff was injured when he began to step down to the floor from the second rung with his right foot and his
left foot became caught between the second rung and the rod behind it causing his knee to twist. n130 While he grabbed
his knee, he fell to the concrete floor. n131
Plaintiff moved for summary judgment based upon violation of Labor Law section 240(1). n132 The Supreme Court
denied plaintiff's motion. n133 On appeal, however, the Appellate Division, by a vote of three to two, reversed and granted
plaintiff's motion because "his fall was proximately caused by his inability to step down one rung at a time because of
the absence of a safety device which would allow his safe descent to the floor." n134
Although the ladder itself was not defective, it was, as the court noted, "insufficient to permit him to safely perform
the elevated task at that particular part of the worksite." n135
The two dissenting judges, however, viewed plaintiff's accident as resulting "from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance." n136 [*1055] According to the
dissenters, the "protruding rods exposed plaintiff only to the usual and ordinary dangers of a construction site and not
the extraordinary elevation risks envisioned by Labor Law § 240(1)." n137
The Court of Appeals agreed with the dissenters and reversed, observing:
Here, the presence of two unconnected pipes protruding from a wall was not "the risk which brought about the need for
the [ladder] in the first instance" ... but was one of "the usual and ordinary dangers at a construction site" to which the
"extraordinary protections of Labor Law § 240(1) [do not] extend." n138
It is undisputed that Labor Law section 240(1) applies to "employees" or "workers" but not volunteers or contract vendees. n139 But what differentiates a worker from a volunteer?
In May 2001, Eric Stringer, a self-employed construction contractor wanted to participate in a turkey hunt on defendant Musacchia's property. n140 He agreed to build a shed in the afternoons in exchange for participating in the hunt.
n141
Plaintiff was injured when he fell from a ladder while constructing the shed on defendant's property. n142
Plaintiff sued defendant under Labor Law section 240(1), and defendant moved to dismiss, arguing that the plaintiff
acted as a volunteer in building the shed and therefore was not an "employee" entitled to the Labor Law protection. n143
The supreme court partially denied defendant's motion and granted plaintiff's cross-motion for partial summary judgment. n144 The Third Department reversed, concluding that plaintiff was not an employee and entitled to the protection of
the statute. n145 The court recognized that plaintiff received an "intangible benefit" for his services. n146 [*1056] Nonetheless, he was under no obligation to complete the shed and knew that he would not receive any monetary consideration. n147
The dissenters viewed Stringer differently. He was an employee because his status as an employee under the Labor
Law does not "turn on whether he receives an actual paycheck for work performed at this site." n148 The "quid pro quo
barter arrangement" was, according to the dissenters, "substantially equivalent to acting as a general contractor" to build
the shed and therefore he was within the class of persons whose benefit the Labor Law section 240(1) was enacted. n149
The Court of Appeals affirmed. n150 The Court noted that in an employer/employee relationship there are at least
three factors: (1) "undertaking of mutual obligation - the employee agrees to perform the service in return for compensation (usually monetary) from the employer, thereby revealing an economic motivation for completing the task"; (2)
"an employer may exercise authority in directing and supervising the manner and method of the work"; and (3) "the
employer usually decides whether the task undertaken by the employee has been completed satisfactorily." n151 The
Court concluded the plaintiff was covered by the statute because
an individual does not become an employee covered by Labor Law § 240(1) by providing casual, uncompensated assistance to another person with a repair or construction project in an informal arrangement that does not give rise to mutual
duties or obligations between them and bears none of the traditional hallmarks of an employment relationship. n152
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III. Pleadings
A. Third-Party Actions
In 1996, the Omnibus Workers' Compensation Reform Act of 1996 was enacted which precludes a defendant commencing a third-party action against the injured plaintiff's employer for common-law indemnification or contribution or
both unless there was an express indemnification agreement [*1057] or plaintiff sustained a "grave injury." n153
Over the years, the Court of Appeals has narrowly defined what constitutes a grave injury. n154 In Fleming v. Graham, the Court was faced with determining whether facial injuries that were not "objectively ascertainable" were a
grave injury. n155
Plaintiff Cedric Fleming "sustained multiple facial injuries resulting in scars on his forehead and right upper eyelid." n156 Plaintiff was a passenger in his employer's van which collided with a bus. n157 After plaintiff commenced suit
against the bus company, the company then commenced a third-party action against plaintiff's employer for common-law indemnity and contribution under Workers' Compensation Law section 11 claiming that plaintiff sustained a
"grave injury" - a permanent and severe facial disfigurement." n158 Plaintiff's employer moved for summary judgment
maintaining that plaintiff's injuries were not "grave." n159
To determine whether the plaintiff sustained a grave injury, the Appellate Division examined the photographs of
plaintiff's face submitted by plaintiff's employer. n160 Since the photographs "did not clearly show that the plaintiff's facial scarring was not a severe facial disfigurement and did not establish that it was not permanent," the court denied
third-party defendant's motion without even examining the third-party plaintiff's opposition. n161
[*1058] The Court of Appeals reversed recognizing that "what constitutes "permanent severe facial disfigurement' is unlike most of the other enumerated "grave' injuries, which are, on the whole, amenable to "objectively ascertainable' determinations as a matter of law." n162 Before a finding of "facial disfigurement" is made, the Court stated that
it must be determined whether the facial injuries are permanent and severe because they are both "conditions precedent." n163
To establish "permanency," a party may submit "competent medical evidence." n164 To demonstrate "severity: a party must show "a highly limited class of disfiguring injuries beyond minor scarring or lacerations.'" n165
Although there was no conceivable standard to capture in toto the highly limited class of "severe" facial disfigurement, the Court nonetheless provided the following guidelines:
an injury disfigures the face when it detrimentally alters the plaintiff's natural beauty, symmetry or appearance, or otherwise deforms. A disfigurement is severe if a reasonable person viewing the plaintiff's face in its altered state would
regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly. In finding that a
disfigurement is severe, plaintiff's injury must greatly alter the appearance of the face from its appearance before the
accident. The foregoing standard, ordinarily one for the court as a matter of law, removes the inquiry from plaintiff's
subjective self-assessment and most closely approximates what the Legislature contemplated. n166
The Court of Appeals also examined the photographs in the record but their conclusions differed from that of the Appellate Division. n167 It found that the photographs demonstrate a steady progression from the initial injuries to scarring,
to significant recovery. n168 Therefore, plaintiff's injuries did not rise to the level of a severe disfigurement although it did
not rule out that a person with multiple scarring might satisfy the standard articulated in the decision. n169
[*1059]
IV. Pre-Trial Discovery
A. Ex-Parte Conversations With Treating Physicians
In Arons v. Jutkowitz, the Court of Appeals applied to medical malpractice actions its earlier rulings that informal discovery - ex parte interviews - is a less expensive alternative to formal discovery. n170
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In Niesig v. Team 1, plaintiff, in a personal injury action, moved for permission to allow his counsel to conduct ex
parte interviews of the corporate defendant's employees who were on the job site at the time of the accident. n171 The
Court of Appeals held that Disciplinary Rule ("DR") 7-104(a)(1) was not violated by conducting ex parte interviews
with certain low level employees who possessed relevant information unless their acts or omissions in the matter (a)
were binding on the corporation, (b) imputed to the corporation for liability purposes or, (c) if they were involved with
implementing the advice of counsel. n172
In 2007, the Court of Appeals revisited Niesig in Muriel Siebert & Co., Inc. v. Intuit, Inc., which involved defendant's counsel contacting a former high level ex-employee with first-hand knowledge of the issues that were the subject
of the litigation. n173 The Court of Appeals agreed with the Appellate Division that DR 7-104(a)(1) applies only to current employees and not former employees. n174
The court, however, cautioned that the "right to conduct ex parte interviews is [not] a license for adversary counsel
to elicit privileged or confidential information from an opponent's former employee. n175 Counsel must still conform to
all applicable ethical standards when conducting such interviews." n176
Arons v. Jutkowitz involved defendant's counsel in a medical malpractice action seeking to conduct interviews on
non-party treating physicians who were privy to plaintiff's privileged information. n177 In [*1060] Arons and Webb,
the supreme court denied defendants' motion to direct plaintiffs to execute authorizations under HIPAA permitting defense counsel to speak with treating physicians because there was no legal authority:
Neither CPLR article 31 nor the Uniform Rules include a provision authorizing defense counsel to meet privately with a
plaintiff's treating physician. Moreover, unlike the production of medical reports and hospital records, there is no statutory or regulatory authority which requires a plaintiff to execute authorizations permitting such ex parte interviews between their treating physicians and defense counsel. In the absence of such authority, or the plaintiff's consent, it has
long been the rule that defense counsel are prohibited from conducting such private interviews during discovery. n178
Not only did the Second Department not discuss the liberality of ex parte interviews permitted by Niesig and Siebert, it
did not even mention their rulings at all. n179 The Fourth Department also, in Kish v. Graham, did not refer to Nieseg and
Siebert. n180
The Court of Appeals, in reversing, started its analysis discussing both Nieseg and Siebert. n181 The Court found "no
reason why a non-party treating physician should be less available for an off the record interview than the corporate
employees in Nieseg or the former corporate executive in Siebert," particularly because a personal injury plaintiff is
deemed to have waived the physician-patient privilege as to matters placed in issue in the litigation. n182
The Court dismissed plaintiff's complaint that there is a danger of overreaching by defense counsel in a more casual
setting without opposing counsel present. n183 The Court minimized this danger:
In sum, an attorney who approaches a nonparty treating physician (or other health care professional) must simply reveal
the client's identity and interest, and make clear that any discussion with counsel is entirely voluntary and limited in
scope to the particular medical condition at issue in the litigation. n184
[*1061] Finally, the Court did not see any conflict between New York law and HIPAA on the subject of ex parte
interviews of treating physicians because HIPAA "does not address the subject:"
Accordingly, the Privacy Rule does not prevent this informal discovery from going forward, it merely superimposes
procedural prerequisites. As a practical matter, this means that the attorney who wishes to contact an adverse party's
treating physician must first obtain a valid HIPAA authorization or a court or administrative order; or must issue a subpoena, discovery request other lawful process with satisfactory assurances relating to either notification or a qualified
protective order. n185
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Judge Pigott, who authored the Siebert opinion, dissented. n186 Judge Pigott distinguished the holdings in Niesig and
Siebert because they "focused primarily on the definition of a party for purposes of discovery." n187 "Neither Niesig nor
Siebert involve a party's invocation of article 31 to obtain informal interviews, nor did the parties in those cases need the
assistance of the opposing party." n188 Allowing ex parte interviews with non-treating physicians requires legislative action, according to Judge Pigott and "cannot be adequately addressed by judicial decree." n189
V. Products Liability
A. Summary Judgment Burden
What is a manufacturer's burden in moving for summary judgment to dismiss plaintiff's product liability action when
the product manufactured is unavailable for inspection and testing? n190 The product in question was a transformer that
exploded after plaintiff, an electric utility lineman, energized it. n191
The Court of Appeals, in Ramos v. Howard Industries, Inc., held that [*1062] a manufacturer moving for summary judgment to dismiss a manufacturing defect claim is required to establish, where the product is unavailable for
inspection and testing, that (a) as a matter of law it may be inferred from the evidence that the product was not defective
when it left the defendant's control, and (b) other possible causes of the accident are not attributable to the defendant. n192
In its moving papers, the transformer manufacturer, Howard Industries, submitted evidence that its transformers
generally were designed and manufactured under state of the art conditions according to the specifications of Niagara
Mohawk, plaintiff's employer, and complied with all applicable industry standards. n193 Moreover, the transformer would
have been individually tested to ensure compliance with customer specifications and industry requirements before it left
the plant. n194 The manufacturer raised other possible causes: (a) the transformer was opened and rewired after it left its
possession and that water could have entered the transformer during the process and (b) the transformer may have been
rebuilt by Niagara Mohawk or one of its vendors. n195
The appellate division - four to one - affirmed the supreme court order denying summary judgment because the
manufacturer did not meet its burden to establish as a matter of law that the transformer was not defective and that a
manufacturing defect therefore did not cause the explosion. n196 Justice Erin Peradotto dissented, concluding that defendant met its burden that as a matter of law. n197 First, "defendant established ... that there was no direct evidence of a
product defect when the product left its control." n198 Second, the transformer was manufactured according to industry
standard under the state of the art manufacturing process and subject to quality control. n199 Third, according to defendant's expert, it was virtually impossible for a transformer with an internal fault to leave the plant. n200 Thus, "it may be
inferred from the evidence that the transformer was not defective when it left the defendant's control." n201 In addition,
defendant also established possible causes of the accident not attributable [*1063] to the defendant. n202
The Court of Appeals, with one judge dissenting, disagreed with Justice Peradotto that defendant met its initial
burden and it was incumbent upon plaintiff therefore to raise a triable question of fact by offering competent evidence
which, if credited by the jury, is sufficient to rebut defendant's alternative cause evidence. n203 The Court examined
plaintiff's opposition to the summary judgment motion and held that it was not adequate:
Plaintiff failed to present evidence excluding all other causes for the transformer's malfunction not attributable to defendant such that a reasonable jury could find that the transformer was defective in the absence of evidence of a specific
defect. Although a plaintiff is not required to identify a specific defect in a circumstantial case, plaintiff's theory here that the explosion resulted from a manufacturing defect in the form of an "internal electrical fault" - is pure speculation.
Furthermore, as noted by the Appellate Division dissent, plaintiff's expert failed to exclude the possibility presented by
defendant's expert that the transformer exploded because it was improperly rewired or rebuilt by Niagara Mohawk employees after leaving defendant's possession. n204
Judge Jones dissented because defendant's showing was "insufficient to entitle defendant to judgment as a matter of
law." n205 He found defendant's expert speculated concerning the possible causes of the transformer's explosion. n206
Therefore, it was improper to shift the burden to the plaintiff. n207
VI. Damages
A. AIDS Phobia
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As more and more people contract the Acquired Immune Deficiency Syndrome ("AIDS") virus, the fear of contracting
"AIDS phobia" increases especially in the medical community. One of the first AIDS phobia cases to be decided by an
appellate court, Brown v. New York Health and Hospitals Corp., involved a nurse exposed to the virus when she was
[*1064] changing a baby who tested "HIV positive." n208 The question before the court was whether limiting a plaintiff's "AIDS phobia" cause of action to damages suffered during the first six months following a potential exposure to
HIV was reasonable unless plaintiff presented evidence of a positive HIV antibody test result. n209
In Brown v. New York City Health and Hospitals Corp., the court agreed with defendant and limited plaintiff's
cause of action to recover damages for negligent infliction of emotional distress based upon AIDS phobia to those
damages suffered during the first six months following her potential exposure to HIV because she did not present evidence that she tested positive for HIV. n210 The six-month period was selected because "there was a consensus in the
medical community that 95 percent of all persons who will ultimately test positive for the virus will do so within six
months of exposure and that the current tests for the presence of the virus were 99 percent reliable." n211
Brown was followed five years later by another Second Department case. n212 The six-month rule was also followed
by the First Department but not unanimously. In both Ornstein v. New York City Health and Hospitals Corp. and Sims
v. Comprehensive Community Development Corp., two justices dissented and, in both cases, Justice Catterson authored
the dissent. n213 Justice Catterson criticized the majority for setting a time limit:
Traditional negligent infliction of emotional distress claims "should not be limited by a judicially imposed reasonableness period that takes from the jury the determination of the extent of a plaintiff's damages." ...
Given its departure from common-law principles of tort liability, the six-month rule should be discarded as meaningless.
The "window of anxiety" approach is nothing more than a recently contrived "compromise between the harshness of
precluding total recovery for the fear of AIDS and allowing a fearful plaintiff a windfall." n214
[*1065] In Ornstein v. New York City Health and Hospitals Corp., the Court rejected limiting damages in AIDS
phobia cases. n215 It held that a nurse who claimed she was suffering from post traumatic stress disorder as a result of
having been stuck by a needle while attending to a hospital patient with AIDS, is not precluded from seeking damages
for negligent infliction of emotional distress even if (a) more than six months have passed since exposure and (b) plaintiff continues to test negative for HIV antibodies. n216
The Court found the Brown restriction of damages approach "inapposite":
[A] rule that restricts recovery of emotional distress damage for all plaintiffs as a matter of law based only on scientific
and medical statistics - no matter how reliable those statistics may be - makes little sense if the probabilities identified
by researches were not known to the plaintiff during the relevant time frame... .
Limitation of all categories of damages based on the statistical probability of testing positive for HIV within a particular
time frame does not account for the fact that a plaintiff exposed to HIV may suffer injuries that are distinct from the fear
of contracting the virus [such as post traumatic stress disorder]. n217
The Court pointed out that defendants could "challenge AIDS phobias and other emotional distress evidence by presenting medical and scientific proof concerning the probability of a plaintiff contracting HIV after having tested negative at various points in time to ensure that the jury understands the risk a plaintiff actually faced and the future risk of a
plaintiff testing positive." n218
Legal Topics:
For related research and practice materials, see the following legal topics:
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TortsNegligenceDutyAffirmative Duty to ActCreators of Foreseeable PerilTransportation LawBridges & RoadsSidewalksWorkers' Compensation & SSDICoverageActions Against EmployersGeneral Overview
FOOTNOTES:
n1. See Morgan v. State of New York, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 207, 662 N.Y.S.2d 421, 426 (1997).
n2. Murphy v. Steeplechase Amusement Co., Inc., 250 N.Y. 479, 482, 166 N.E. 173, 174 (1929).
n3. Id. at 482-83, 166 N.E. at 174.
n4. 51 A.D.3d 246, 247, 850 N.Y.S.2d 38, 39 (1st Dep't 2008).
n5. Id. at 248, 850 N.Y.S.2d at 40-41.
n6. Id. at 254, 850 N.Y.S.2d at 45 (Kavanagh, J., dissenting).
n7. Roberts v. Boys & Girls Republic, Inc., 10 N.Y.3d 889, 889, 891 N.E.2d 719, 719, 861 N.Y.S.2d 603, 603 (2008).
n8. 37 A.D.3d 324, 326, 831 N.Y.S.2d 42, 43 (1st Dep't 2007).
n9. Smalls, 37 A.D.3d at 326, 831 N.Y.S.2d at 43-44.
n10. Id. at 326, 831 N.Y.S.2d at 43.
n11. Id. at 324, 831 N.Y.S.2d at 42.
n12. Id. at 325, 831 N.Y.S.2d at 43-44.
n13. Id. at 324, 325, 831 N.Y.S.2d at 42, 43.
n14. Smalls, 37 A.D.3d at 325, 831 N.Y.S.2d at 43-44.
n15. Id. at 325, 831 N.Y.S.2d at 43.
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59 Syracuse L. Rev. 1039, *
n16. Id. at 326-27, 831 N.Y.S.2d at 44 (Tom, J.P., dissenting).
n17. Id. at 327, 831 N.Y.S.2d at 45 (Tom, J.P., dissenting).
n18. 10 N.Y.3d 733, 735, 883 N.E.2d 350, 351, 853 N.Y.S.2d 526, 527.
n19. Id.
n20. Park v. Kim, 37 A.D.3d 416, 416, 831 N.Y.S.2d 422, 422-23 (2d Dep't 2007); Good v. Atkins, 17 A.D.3d 315, 315-16, 793 N.Y.S.2d
82, 83 (2d Dep't 2005); Lejkowski v. Siedlarz, 2 A.D.3d 791, 792, 767 N.Y.S.2d 748, 748 (2d Dep't 2003).
n21. 42 A.D.3d 496, 497, 840 N.Y.S.2d 809, 810 (2d Dep't 2007).
n22. Id. at 497, 840 N.Y.S.2d at 810.
n23. Id.
n24. Id.
n25. Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908, 891 N.E.2d 726, 727, 861 N.Y.S.2d, 610, 611 (2008).
n26. Id. at 908, 891 N.E.2d at 728, 661 N.Y.S.2d at 612.
n27. 96 N.Y.2d 343, 346, 753 N.E.2d 160, 161, 728 N.Y.S.2d 731, 732 (2001).
n28. Id. at 346, 753 N.E.2d at 161, 728 N.Y.S.2d at 732.
n29. Id.
n30. Id. at 350, 753 N.E.2d at 164, 728 N.Y.S.2d at 735.
n31. Id. at 349, 753 N.E.2d at 163, 728 N.Y.S.2d at 734.
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59 Syracuse L. Rev. 1039, *
n32. See Pulka v. Edelman, 40 N.Y.2d 781, 783-84; 358 N.E.2d 1019, 1021; 390 N.Y.S.2d 393, 395 (1976).
n33. Id.
n34. 9 N.Y.3d 324, 326-27, 880 N.E.2d 416, 416-17, 849 N.Y.S.2d 872, 872-73 (2007).
n35. Id. at 326, 880 N.E.2d at 416, 849 N.Y.S.2d at 872.
n36. Id. at 327, 880 N.E.2d at 417, 849 N.Y.S.2d at 873.
n37. Id.
n38. Id. (internal quotations omitted).
n39. 37 A.D.3d 1194, 1195, 829 N.Y.S.2d 766, 766 (4th Dep't 2007).
n40. Id. at 1195, 829 N.Y.S.2d at 766 (internal quotations omitted).
n41. Id. at 1195, 829 N.Y.S.2d at 767 (Centra & Green, JJ., dissenting).
n42. Haymon v. Petit, 9 N.Y.3d at 328, 330, 880 N.E.2d at 417, 419, 849 N.Y.S.2d at 873, 875 (2007).
n43. Id. at 328-29, 880 N.E.2d at 418, 849 N.Y.S.2d at 874.
n44. Id.
n45. Id. at 329, 880 N.E.2d at 418, 849 N.Y.S.2d at 874.
n46. Workers' Compensation Law § 11 states in pertinent part:
The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such
employee, his or her personal representatives, spouse, parents, dependants, distributees or any person otherwise entitled to recover damages,
contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom ... .
N.Y. Workers' Comp. Law § 11 (McKinney 2005 & Supp. 2009).
Workers' Compensation Law § 29(6) states in pertinent part:
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59 Syracuse L. Rev. 1039, *
The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in case of death his or her dependants, when such employee is injured or killed by the negligence or the wrong of another in the same employ ... .
N.Y. Workers' Comp. Law § 29(6) (McKinney 2005).
n47. 9 N.Y.3d 351, 354, 880 N.E.2d 845, 847, 850 N.Y.S.2d 359, 361 (2007).
n48. Id. at 354-55, 880 N.E.2d at 847, 850 N.Y.S.2d at 361.
n49. Id. at 355, 880 N.E.2d at 847, 850 N.Y.S.2d at 361.
n50. Id. at 355, 880 N.E.2d at 847-48, 850 N.Y.S.2d at 361-62.
n51. Id. at 354, 880 N.E.2d at 847, 850 N.Y.S.2d at 361.
n52. Fung, 9 N.Y.3d at 355, 880 N.E.2d at 847, 850 N.Y.S.2d at 361.
n53. Id. at 356, 880 N.E.2d at 848, 850 N.Y.S.2d at 362.
n54. Fung v. Japan Airlines Co., 31 A.D.3d 707, 708, 820 N.Y.S.2d 89, 91 (2d Dep't 2006).
n55. Id. at 357-58, 880 N.E.2d at 849, 850 N.Y.S.2d at 363.
n56. Id. at 358, 360, 880 N.E.2d at 849, 851, 850 N.Y.S.2d at 363, 365.
n57. Id. at 359, 880 N.E.2d at 850, 850 N.Y.S.2d at 364.
n58. Id. at 358, 880 N.E.2d at 849-50, 850 N.Y.S.2d at 363-64.
n59. Fung, 9 N.Y.3d at 360, 880 N.E.2d at 851, 850 N.Y.S.2d at 365.
n60. Fung, 9 N.Y.3d at 360, 850 N.E.2d at 851, 850 N.Y.S.2d at 365 (discussing N.Y. Workers' Comp. Law§§11, 26).
n61. See Rodriguez v. City of New York, 12 A.D.3d 282, 282, 784 N.Y.S.2d 855, 855 (1st Dep't 2004).
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59 Syracuse L. Rev. 1039, *
n62. See, e.g., Zektser v. City of New York, 18 A.D.3d 869, 869, 796 N.Y.S.2d 656, 657 (2d Dep't 2005).
n63. Id.
n64. " It shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for
corner property, to maintain such sidewalk in a reasonably safe condition." N.Y., N.Y.C. Admin. Code § 7-210 (2008).
n65. Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 518, 890 N.E.2d 191, 192, 860 N.Y.S.2d 429, 430 (2008).
n66. Id. at 521, 890 N.E.2d at 194, 860 N.Y.S.2d at 432.
n67. Id. at 519, 890 N.E.2d at 192, 860 N.Y.S.2d at 430.
n68. Id. at 519, 890 N.E.2d at 193, 860 N.Y.S.2d at 431.
n69. Vucetovic v. Epsom Downs, Inc., 45 A.D.3d 28, 841 N.Y.S.2d 301 (1st Dep't 2007).
n70. Id. at 30, 841 N.Y.S.2d at 303 (Gonzalez, J., dissenting).
n71. Id. at 31, 841 N.Y.S.2d at 303 (Gonzalez, J., dissenting).
n72. Vucetovic, 10 N.Y.3d at 522, 890 N.E.2d at 195, 860 N.Y.S.2d at 433.
n73. Id. at 521, 890 N.E.2d at 194, 860 N.Y.S.2d at 432.
n74. Id. at 522, 890 N.E.2d at 194-95, 860 N.Y.S.2d at 432-33.
n75. Sanatass v. Consol. Investing Co., 10 N.Y.3d 333, 336, 887 N.E.2d 1125, 1126, 858 N.Y.S.2d 67, 68 (2008).
n76. Id. at 336, 887 N.E.2d at 1126, 858 N.Y.S.2d at 68.
n77. Id.
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n78. Id.
n79. Id. at 336, 887 N.E.2d at 1126-27, 858 N.Y.S.2d at 68-69.
n80. Sanatass, 10 N.Y.3d at 336, 887 N.E.2d at 1126-27, 858 N.Y.S.2d at 68-69.
n81. Id. at 336, 887 N.E.2d at 1126-27, 858 N.Y.S.2d at 68-69.
n82. Sanatass v. Consol. Investing Co., 38 A.D.3d 332, 332, 333, 833 N.Y.S.2d 12, 13, 14 (1st Dep't 2007).
n83. Sanatass, 38 A.D.3d at 332, 833 N.Y.S.2d at 13 (citations omitted).
n84. Abbatiello v. Lancaster Studio Assocs., 307 A.D.2d 788, 789, 763 N.Y.S.2d 45, 46 (1st Dep't 2003) (citing N.Y. Pub. Serv. Law § 228
(McKinney 2000)).
n85. Id. at 789, 763 N.Y.S.2d at 46.
n86. Id. at 789, 763 N.Y.S.2d at 45-46.
n87. Abbatiello v. Lancaster Studio Assocs., 3 N.Y.3d 46, 50, 814 N.E.2d 784, 786, 781 N.Y.S.2d 477, 479 (2004).
n88. Id. at 51, 814 N.E.2d at 787, 781 N.Y.S.2d at 480.
n89. Id.
n90. Id. at 52, 814 N.E.2d at 787, 781 N.Y.S.2d at 480.
n91. Sanatass, 38 A.D.3d at 333, 781 N.Y.S.2d at 14 (McGuire, J., dissenting) (citations omitted).
n92. Sanatass, 10 N.Y.3d at 340, 887 N.E.2d at 1130, 858 N.Y.2d at 72 (citations omitted).
n93. Id. at 340, 887 N.E.2d at 1129-30, 858 N.Y.2d at 71-72.
n94. Id. at 343, 887 N.E.2d at 1132, 858 N.Y.S.2d at 74 (Smith, J., dissenting).
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59 Syracuse L. Rev. 1039, *
n95. Id. at 342, 887 N.E.2d at 1131, 858 N.Y.S.2d at 73 (Smith, J., dissenting).
n96. Id. at 343, 887 N.E.2d at 1132, 858 N.Y.S.2d at 74 (Smith, J., dissenting) (citing Blake v. Neighborhood Hous. Servs. of N.Y. City, 1
N.Y.3d 280, 286, 803 N.E.2d 757, 760, 771 N.Y.S.2d 484, 487 (2003)).
n97. Morales v. D&A Food Serv., 41 A.D.3d 352, 352, 839 N.Y.S.2d 464, 465 (1st Dep't 2007); Morales v. D&A Food Serv., 10 N.Y.3d
911, 912, 892 N.E.2d 842, 843, 862 N.Y.S.2d 449, 450 (2008).
n98. Morales, 10 N.Y.3d at 912, 892 N.E.2d at 843, 862 N.Y.S.2d at 450 (citing Santass v. Consol. Inv. Co., 10 N.Y.3d 333, 858 N.Y.S.2d
67, 887 N.E.2d 1125 (2008)).
n99. Rodriguez v. Margaret Tietz Ctr. for Nursing Care, Inc., 84 N.Y.2d 841, 843, 640 N.E.2d 1134, 1135, 616 N.Y.S.2d 900, 901 (1994).
n100. Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259, 267-68, 750 N.E.2d 1085, 1089, 727 N.Y.S.2d 37, 41 (2001). In Narducci,
plaintiff was injured when a large piece of glass from an adjacent window frame fell toward him and when he turned to avoid being hit in the
face by the glass, he was severely cut on his right arm. Id. at 265, 750 N.E.2d at 1088, 727 N.Y.S.2d at 40. Plaintiff did not fall from a ladder
nor did the ladder he was standing on malfunction. Id.
n101. Id. at 268, 750 N.E.2d at 1089, 727 N.Y.S.2d at 41.
n102. Id. at 268, 750 N.E.2d at 1089, 727 N.Y.S.2d at 41 (emphasis in original).
n103. 5 N.Y.3d 731, 832 N.E.2d 1186, 799 N.Y.S.2d 770 (2005).
n104. Outar v. City of New York, 286 A.D.2d 671, 672, 730 N.Y.S.2d 138, 139 (2d Dep't 2001).
n105. Id. at 672-73, 730 N.Y.S.2d at 139.
n106. Id.
n107. Outar, 5 N.Y.3d at 732, 832 N.E.2d at 1186, 799 N.Y.S.2d at 770.
n108. Compare Quattrocchi v. F.J. Sciame Constr. Corp., 44 A.D.3d 377, 379, 834 N.Y.S.2d 564, 566 (1st Dep't 2007), with id. at 382, 834
N.Y.S.2d at 568 (Gonzalez, J., dissenting).
n109. Id. at 378, 843 N.Y.S.2d at 565.
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59 Syracuse L. Rev. 1039, *
n110. Id. at 379, 843 N.Y.S.2d at 566.
n111. Id.
n112. Id. at 382, 843 N.Y.S.2d at 568 (Gonzalez, J., dissenting) (internal citations omitted).
n113. Quattrocchi v. F.J. Sciame Constr. Corp., 11 N.Y.3d 757, 759, 896 N.E.2d 75, 76, 866 N.Y.S.2d 592, 592 (2008).
n114. Berg v. Albany Ladder Co., Inc., 10 N.Y.3d 902, 903-04, 891 N.E.2d 723, 724, 861 N.Y.S.2d 607, 608 (2008).
n115. Id. at 903, 891 N.E. 2d at 724, 861 N.Y.S.2d 608.
n116. Berg v. Albany Ladder Co., Inc, 40 A.D.3d 1282, 1283, 836 N.Y.S.2d 720, 722 (3d Dep't 2007).
n117. Id. at 1283, 836 N.Y.S.2d at 722.
n118. Id. at 1284, 836 N.Y.S.2d at 723.
n119. Id. at 1284, 836 N.Y.S.2d at 722 (internal quotations and citations omitted).
n120. Berg, 40 A.D.3d at 1285, 1286, 836 N.Y.S.2d at 723, 724 (Cardona, J., concurring in part and dissenting in part) (citing Toefer v.
Long Island R.R. Co., 4 N.Y.3d 399, 409, 828 N.E.2d 614, 618, 795 N.Y.S.2d 511, 516 (2005)).
n121. Id. at 1286, 836 N.Y.S.2d at 724.
n122. Berg, 10 N.Y.3d at 904, 891 N.E.2d at 724, 861 N.Y.S.2d 608.
n123. Swiderska v. N.Y. Univ., 34 A.D.3d 445, 446, 824 N.Y.S.2d 133, 134 (2d Dep't 2006); Swiderska v. N.Y. Univ., 10 N.Y.3d 792,
793, 886 N.E.2d 155, 156, 856 N.Y.S.2d 533, 534 (2008).
n124. Swiderska, 35 A.D.3d at 446, 824 N.Y.S.2d at 134-35.
n125. Swiderska, 10 N.Y.3d at 793, 886 N.E.2d at 156, 856 N.Y.S.2d at 534.
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59 Syracuse L. Rev. 1039, *
n126. See Cohen v. Mem'l Sloan-Kettering Cancer Ctr., 50 A.D.3d 227, 229, 850 N.Y.S.2d 435, 437 (1st Dep't 2008).
n127. Id. at 228-29, 850 N.Y.S.2d at 436-37.
n128. Id. at 229, 850 N.Y.S.2d at 437.
n129. Id.
n130. Id.
n131. Cohen, 50 A.D.3d at 229, 850 N.Y.S.2d at 437.
n132. Id. at 228, 850 N.Y.S.2d at 436.
n133. Id.
n134. Id. at 229, 850 N.Y.S.2d at 437.
n135. Id. at 230, 50 N.Y.S.2d at 437 (emphasis omitted).
n136. Cohen, 50 A.D.3d at 232, 50 N.Y.S.2d at 438 (Friedman, J., dissenting) (citations omitted).
n137. Id. at 237, 850 N.Y.S.2d at 442-43 (Friedman, J., dissenting) (internal citations and quotations omitted).
n138. Cohen v. Mem'l Sloan-Kettering Cancer Ctr., 13 11 N.Y.3d 823, 824-25, 897 N.E.2d 1059, 1060, 868 N.Y.S.2d 578, 579 (2008) (citations omitted).
n139. See Whelan v. Warwick Valley Civic & Soc. Club, 47 N.Y.2d 970, 971, 393 N.E.2d 1032, 1032, 419 N.Y.S.2d 959, 959 (1979)
(holding that volunteers are not afforded section 240 protection); Mordkofsky v. V.C.B. Dev. Corp., 76 N.Y.2d 573, 577, 563 N.E.2d 263,
265, 561 N.Y.S.2d 892, 894 (1990) (declining to extend section 240 protection to a contract-vendee).
n140. Stringer v. Musacchia, 46 A.D.3d 1274, 1275, 848 N.Y.S.2d 762, 763 (3d Dep't 2007).
n141. Id. at 1275, 848 N.Y.S.2d at 763.
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59 Syracuse L. Rev. 1039, *
n142. Id.
n143. Id.
n144. Id.
n145. Stringer, 46 A.D.3d at 1277, 848 N.Y.S.2d at 765.
n146. Id. 1277, 848 N.Y.S.2d at 765.
n147. Id.
n148. Id. at 1278, 848 N.Y.S.2d at 765 (Spain & Peters, JJ., dissenting) (citations omitted).
n149. Id. at 1278, 848 N.Y.S.2d at 766 (Spain & Peters, JJ., dissenting).
n150. Stringer v. Musacchia, 11 N.Y.3d 212, 215, 898 N.E.2d 545, 547, 869 N.Y.S.2d 362, 364 (2008).
n151. Id. at 215-16, 898 N.E.2d at 547-48, 869 N.Y.S.2d at 364-65 (citations omitted).
n152. Id. at 216-17, 898 N.E.2d at 548, 869 N.Y.S.2d at 365.
n153. Section 11 defines grave injury as only one or more of the following:
death, permanent and total loss of use or amputation of an arm, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or
quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.
N.Y. Workers' Comp. Law § 11.
n154. See, e.g., Rubeis v. Aqua Club, Inc., 3 N.Y.3d 408, 413, 417-18, 821 N.E.2d 530, 531, 535, 788 N.Y.S.2d 292, 293, 297 (2004)
(brain injury resulted in "permanent total disability" if injured worker is no longer employable in any capacity even if able to perform
day-to-day functions); Meis v. Elo Org., 97 N.Y.2d 714, 716, 767 N.E.2d 146, 146, 740 N.Y.S.2d 689, 689 (2002) (loss of thumb is not a
"permanent and total loss of use" of a hand); Castro v. United Container Mach. Group, 96 N.Y.2d 398, 401, 761 N.E.2d 1014, 1016, 736
N.Y.S.2d 287, 288 (2001) (loss of "multiple fingertips" does not constitute "a loss of multiple fingers").
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59 Syracuse L. Rev. 1039, *
n155. 10 N.Y.3d 296, 300, 886 N.E.2d 769, 772-73, 857 N.Y.S.2d 8, 11-12 (2008).
n156. Id. at 298, 886 N.E.2d at 771, 857 N.Y.S.2d at 10.
n157. Id.
n158. Id.
n159. Id.
n160. Fleming v. Graham, 34 A.D.3d 525, 526-27, 824 N.Y.S.2d 376, 379 (2d Dept. 2006).
n161. Fleming, 34 A.D.3d at 527, 824 N.Y.S.2d at 379.
n162. Fleming, 10 N.Y.3d at 300, 886 N.E.2d at 772-73, 857 N.Y.S.2d at 12 (citations omitted).
n163. Id. at 300, 886 N.E.2d at 773, 857 N.Y.S.2d at 12.
n164. Id. at 300-01, 886 N.E.2d at 773, 857 N.Y.S.2d at 12.
n165. Id.
n166. Id. at 301, 886 N.E.2d at 773-74, 857 N.Y.S.2d at 12-13.
n167. Fleming, 10 N.Y.3d at 302, 886 N.E.2d at 774, 857 N.Y.S.2d at 13.
n168. Id.
n169. Id.
n170. Arons v. Jutkowitz, 9 N.Y.3d 393, 409, 880 N.E.2d 831, 838, 850 N.Y.S.2d 345, 352 (2007) (citations omitted).
n171. Niesig v. Team 1, 76 N.Y.2d 363, 367-68, 558 N.E.2d 1030, 1031, 559 N.Y.S.2d 493, 494 (1990).
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59 Syracuse L. Rev. 1039, *
n172. Id. at 374, 558 N.E.2d at 1035, 559 N.Y.S.2d at 498.
n173. 8 N.Y.3d 506, 509-11, 868 N.E.2d 208, 209-10, 836 N.Y.S.2d 527, 528-30 (2007).
n174. Id. at 511, 868 N.E.2d at 209, 836 N.Y.S.2d at 529.
n175. Id. at 512, 868 N.E.2d at 210, 836 N.Y.S.2d at 530.
n176. Id.
n177. Arons, 9 N.Y.3d at 402, 880 N.E.2d at 833, 850 N.Y.S.2d at 347. This case also decided two other cases: Webb v. N.Y. Methodist
Hosp., 35 A.D.3d 457, 458, 825 N.Y.S.2d 645, 645-46 (2d Dep't 2006) and Kish v. Graham, 40 A.D.3d 118, 122-24, 833 N.Y.S.2d 313,
315-17 (4th Dep't 2007).
n178. Arons v. Jutkowitz, 37 A.D.3d 94, 96-97, 824 N.Y.S.2d 738, 739-40 (2d Dep't 2006).
n179. See Arons, 37 A.D.3d 94, 825 N.Y.S.2d 738.
n180. See Kish, 40 A.D.3d 118, 833 N.Y.S.2d 313.
n181. Arons, 9 N.Y.3d at 406-07, 880 N.E.2d at 836, 850 N.Y.S.2d at 350.
n182. Id. at 409, 880 N.E.2d at 837, 850 N.Y.S.2d at 351.
n183. Id. at 410, 880 N.E.2d at 838, 850 N.Y.S.2d at 352.
n184. Id.
n185. Id. at 415, 880 N.E.2d at 842, 850 N.Y.S.2d at 356. On February 27, 2008 the Office of the Court Administration issued an official
form, which closely comports with Arons, to be used as the plaintiff's authorization. See Form UCS No. 575, Authorization to Permit Interview of Treating Physician by Defense Counsel, http://www.nycourts.gov/forms.
n186. Arons, 9 N.Y.3d at 416, 880 N.E.2d at 844, 850 N.Y.S.2d at 357 (Pigott, J., dissenting).
n187. Id. at 418, 880 N.E.2d at 844, 850 N.Y.S.2d at 358 (Pigott, J., dissenting).
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59 Syracuse L. Rev. 1039, *
n188. Id. (Pigott, J., dissenting).
n189. Id. at 417, 880 N.E.2d at 843, 850 N.Y.S.2d at 357 (Pigott, J., dissenting).
n190. Ramos v. Howard Indus., 10 N.Y.3d 218, 225, 885 N.E.2d 176, 179-80, 855 N.Y.S.2d 412, 415-16 (2008) (Jones, J., dissenting).
n191. Id. at 221, 885 N.E.2d at 177, 855 N.Y.S.2d at 413.
n192. Id. at 223, 885 N.E.2d at 178, 855 N.Y.S.2d at 414.
n193. Id. at 223, 885 N.E.2d at 179, 855 N.Y.S.2d at 415.
n194. Id. at 224, 885 N.E.2d at 179, 855 N.Y.S.2d at 415.
n195. Ramos, 10 N.Y.3d at 222, 225, 885 N.E.2d at 177, 180, 855 N.Y.S.2d at 413, 416.
n196. Ramos v. Howard Indus., 38 A.D.3d 1163, 1164, 831 N.Y.S.2d 616, 617 (4th Dep't 2007).
n197. Id. at 1164-65, 831 N.Y.S.2d at 617 (Peradotto J., dissenting).
n198. Id. at 1166, 831 N.Y.S.2d at 618 (Peradotto, J., dissenting).
n199. Id. (Peradotto, J., dissenting).
n200. Id. (Peradotto, J., dissenting).
n201. Ramos, 38 A.D.3d at 1166, 831 N.Y.S.2d at 618 (Peradotto, J., dissenting).
n202. Id. at 1166-67, 831 N.Y.S.2d at 618 (Peradotto, J., dissenting).
n203. Ramos, 10 N.Y.3d at 226, 885 N.E.2d at 181, 855 N.Y.S.2d at 417 (citation omitted).
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59 Syracuse L. Rev. 1039, *
n204. Id. at 224, 885 N.E.2d at 179, 855 N.Y.S.2d at 415.
n205. Id. at 225, 885 N.E.2d at 180, 855 N.Y.S.2d at 416 (Jones, J., dissenting).
n206. Id. (Jones, J., dissenting).
n207. Id. at 226, 885 N.E.2d at 180, 855 N.Y.S.2d at 416 (Jones, J., dissenting).
n208. 225 A.D.2d 36, 37-38, 648 N.Y.S.2d 880, 881-82 (2d Dep't 1996).
n209. Id. at 41, 648 N.Y.S.2d at 883.
n210. Id. at 49, 648 N.Y.S.2d at 888.
n211. Id. at 38, 648 N.Y.S.2d at 882.
n212. See generally Taormino v. State, 286 A.D.2d 490, 729 N.Y.S.2d 757 (2d Dep't 2001).
n213. Ornstein v. N.Y. City Health & Hosps. Corp., 27 A.D.3d 180, 188, 806 N.Y.S.2d 566, 572 (1st Dep't 2006) (Catterson, J., dissenting); Sims v. Comprehensive Cmty. Devel. Corp., 40 A.D.3d 256, 258, 835 N.Y.S.2d 163, 165 (1st Dep't 2007) (Catterson, J., dissenting).
n214. Ornstein, 27 A.D.3d at 194, 806 N.Y.S.2d at 576, 577 (Catterson, J., dissenting); Sims, 40 A.D.3d at 263, 264, 835 N.Y.S.2d at 169
(citation omitted).
n215. 10 N.Y.3d 1, 11, 881 N.E.2d 1187, 1193, 852 N.Y.S.2d 1, 7 (2008).
n216. Id. at 3-4, 881 N.E.2d at 1187-88, 852 N.Y.S.2d at 1-2.
n217. Id. at 8-9, 881 N.E.2d at 1191-92, 852 N.Y.S.2d at 5, 6.
n218. Id. at 10, 881 N.E.2d at 1193, 852 N.Y.S.2d at 7.
Page 87
995 of 999 DOCUMENTS
Copyright (c) 2003 by Thomas M. Cooley Law School
Thomas M. Cooley Law Review
Michaelmas Term, 2003
20 T.M. Cooley L. Rev. 605
LENGTH: 21116 words
THERE'S A DRIVE . . . WAY BACK . . . IT MIGHT BE . . . IT COULD BE . . . ANOTHER LAWSUIT: POPOV v.
HAYASHI n1
NAME: Jason Cieslik *
BIO:
* J.D. Candidate, Thomas M. Cooley Law School, May 2004. The author would like to thank his wife for her never ending patience
and support. Additionally, he would like to thank Professor James Hicks for his helpful insight and guidance throughout this Casenote and
over the past three years.
LEXISNEXIS SUMMARY:
... In Popov v. Hayashi, Judge McCarthy was confronted with a similar situation when a dispute arose between two
men over possession of Barry Bonds's record-setting, seventy-third, home-run ball. ... The nature of the game and its
fans justifies extending the assumption-of-the-risk doctrine to possession of a baseball. ... The court rejected Popov's
argument, reasoning that the rule regarding the capture of animals was unique to the custom and practice at the time,
and such a rule was not applicable to the game of baseball. ... The court recognized that, as a general rule, a spectator
assumes the risk that a foul ball can cause injury at a baseball game. ... It requires that the landowner be aware of prior
similar incidents to be liable for a subsequent criminal act. ... " Either way, the issue of safety is addressed by setting
new public policy, denying the fan any right to sue for possession because he has assumed the risk of losing a possessory right in a baseball or placing the burden on the owners to provide more security. ... What makes the baseball at
issue in Popov different from the everyday foul ball is the danger and risk associated with the value of the ball. ...
TEXT:
[*605]
I. Introduction
Then the king said: "One woman claims, 'This, the living one, is my child, and the dead one is yours.' The other
answers, 'No! The dead one is your child; the living one is mine!'" The king continued, "Get me a sword." When they
brought the sword before him, he said, "Cut the living child in two, and give half to one woman and half to the other."
n2
In Popov v. Hayashi, Judge McCarthy was confronted with a similar situation when a dispute arose between two
men over possession of Barry Bonds's record-setting, seventy-third, home-run ball. n3 In the end, Judge McCarthy took
the Solomonic approach and "split the baby." At issue was a legal topic that is not often litigated. Many legal scholars in
the fields of property and tort law were called upon to help give their input as to what the most equitable remedy would
be in solving the parties' legal dilemma. n4 At the conclusion of the case, the court created what is known as a
"pre-possessory interest" and held that both men had a claim to the ball. n5
Although the court provided an equitable remedy for both parties, the principle set forth in this case gives very little
guidance as to what may happen in the future when courts are confronted with a similar scenario. The facts of the case
are unusual. The game of baseball has also changed [*606] dramatically over the years with the explosion of record-setting home runs, as well as the increased monetary value placed on sports memorabilia. A pre-possessory interest
will not solve any future claims fans may have against each other. In fact, this judicially created interest may lead to
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20 T.M. Cooley L. Rev. 605, *
more litigation, not alleviate the potential for litigation. Although the issue of possession was at the forefront of the
case, the court did not explore the possibility of extending the doctrine of assumption of the risk to Popov or try to redirect Popov's litigious efforts.
Assumption of the risk is a defense to negligence. n6 The doctrine plays a very significant role in the game of baseball and for its patrons. Most ticket stubs contain a disclosure stating that the organization is not liable for the dangers
inherent in the game of baseball, such as foul balls. n7 The problem is that negligence was not the cause of action in the
Popov case. Popov sued for conversion. n8 But to have a successful claim for conversion, Popov first needed to prove
that he had possession. n9 The nature of the game and its fans justifies extending the assumption-of-the-risk doctrine to
possession of a baseball.
First, a fan's possession of a baseball should not be defined by a complicated set of facts. Possession should be defined by the everyday, vanilla-flavored definition provided by any legal dictionary. This would satisfy the element of
certainty. n10 Second, as a matter of public policy, fans assume certain risks associated with foul balls that are inherent in
the game of baseball. Popov knowingly and voluntarily exposed himself to a seating area that had the potential to be
raucous or dangerous. He assumed the risk of being struck by a baseball when he chose to sit in an area that was not
protected by netting. Therefore, as a matter of public policy, the court should have applied assumption of the risk to
Popov's claim because his actions relinquished any right hemay have otherwise had to the baseball.
[*607]
Although, this strict line of reasoning violates the public policy of encouraging fan civility, such reasoning would
help reduce conflict. n11 But if the courts are unwilling to extend this line of reasoning when a ball is knocked loose from
a fan by other spectators, the fan's remedy could be to sue the organization for not providing adequate security and protection. Forcing stadium owners to provide better and increased security at games may have a dramatic effect on fan
civility. Increased security would also alleviate conflict by securing patrons' safety in sporting events that have the potential to become dangerous. n12
Therefore, the court should have awarded Hayashi the baseball because Popov could not prove that he had possession according to the plain definition. The court should have extended assumption of the risk to this case, as a matter of
public policy, because a fan should not be awarded possession for attending an activity he knew would be, or could be,
dangerous. Popov should be barred from claiming he had possession, just like a fan would be barred from asserting a
negligence claim after being struck by a foul ball. In the alternative, the court could have awarded Hayashi the baseball
and refocused Popov's litigious efforts on the San Francisco Giants (Giants) to provide better security because safety
was a serious concern. n13
Part II of this Casenote will thoroughly explain the decision and the holding of the case between Popov and
Hayashi. Part III, subsection A, discusses possession and the capture of wild animals. Subsection B, analyzes assumption of the risk in the context of baseball and hockey. Subsections C and D address fans' risk of being injured by other
fans. Finally, subsection E focuses on the potential of fans consenting to a battery. Part IV discusses the potentially
problematic holding and reasoning of the court and applies assumption of the risk to the facts of the case. Part IV also
discusses the possible duty imposed on stadium owners with respect to foreseeable criminal acts by third parties, as well
as possession and custom in the stands. Part V concludes.
II. Background
On October 7, 2001, Barry Bonds hit his seventy-third home run into the right field seats of PacBell Park in San
Francisco. n14 The record-breaking home run had been anticipated for some time, and fans were [*608] aware of the
historical importance and value of the ball. n15 The plaintiff, Alex Popov, and the defendant, Patrick Hayashi, were
standing with gloves in hand in the right field seating area where Bonds hit a majority of his home runs. n16 As Bonds
connected, a cameraman captured what turned out to be a critical moment in the case: n17 the baseball landed in the
webbed portion of Popov's glove. n18 Although the glove stopped the travel of the baseball, there was no conclusive evidence that Popov had in fact secured possession of the ball. n19 The camera established that the ball was in Popov's glove
at least six-tenths of a second. n20 As Popov went for the ball, the camera captured a crowd of people engulfing him as
their momentum carried them to the location of the ball. n21 In the process, Popov was knocked to the ground both intentionally and unintentionally by fans who were either attempting to take the ball away or by those who had no choice but
to fall on top of him because of their momentum. n22 Under the pile, Popov was assaulted by fans attempting to take the
ball. n23 But the tape did not establish with any certainty who committed these illegal acts. n24 At some point during the
skirmish, the ball left Popov's glove and landed on the ground. n25
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20 T.M. Cooley L. Rev. 605, *
Hayashi was knocked to the ground. n26 While on the ground, he picked up the loose ball and put it in his pocket. n27
Hayashi kept the ball hidden and asked the cameraman to point the camera in his direction to show others that he had it.
n28
As Hayashi showed the ball for all to see, others made a motion for the ball, and Hayashi realized that the ball was
vulnerable. n29 When Popov pulled himself off the ground, he expressed his relief and also made a motion for the ball but
was unsuccessful as Hayashi pulled away and was subsequently escorted out by security. n30 [*609] Neither cameras
nor witnesses could determine whether Popov established total and absolute control of the ball. n31
Popov sued under a conversion theory: "the wrongful exercise of dominion over the personal property of another."
However, for Popov to have a successful claim, he must first have had possession of the ball. n33 Thus, the issue was
"whether Mr. Popov achieved possession or the right to possession as he attempted to catch and hold on to the ball." n34
n32
Both parties stipulated that the ball became abandoned property once it was hit and was no longer owned by Major
League Baseball. n35 But as to the law of possession, the parties disagreed on its definition and how it applies. n36 The
court agreed that the definition and application of the law of possession differs depending on the custom within industry
and the context in which it is being applied. n37 Thus, the court analyzed four different views from four different law
professors. n38 Roger Bernhardt took the view that "the question isn't whether Popov had been stripped, but whether he
took the steps required to maintain possession-such as pulling the glove to his chest-before the ball came out." n39 Jan
Stiglitz stated that "since Hayashi was the beneficiary of a wrongful act . . . he should give it back." n40 Paul Finkelman
argued, "It's not about time of possession . . . [i]t's about stopping the forward motion of the ball." n41
But the defense argued, and the court adopted "Gray's Rule," which was created by Professor Brian Gray. n42 Gray's
Rule is as follows:
A person who catches a baseball that enters the stands is its owner. A ball is caught if the person has achieved complete control of the ball at the point in time that the momentum of the ball and the momentum of the fan while attempting to catch the ball ceases. A baseball, which is dislodged by incidental contact [*610] with an inanimate object or
another person, before momentum has ceased, is not possessed. Incidental contact with another person is contact that is
not intended by the other person. The first person to pick up a loose ball and secure it becomes its possessor. n43
Popov argued that the rule of possession, as applied to the capture of animals, should also apply. n44 The rule is that
a "hunter acquires possession upon the act of wounding the animal[,] not the eventual capture." n45 Popov argued that he
had possession when he stopped the forward momentum of the ball with the intent to control it. n46 The court rejected
Popov's argument, reasoning that the rule regarding the capture of animals was unique to the custom and practice at the
time, and such a rule was not applicable to the game of baseball. n47 Whereas a fleeing animal can be wounded and
eventually captured, a baseball can be captured instantly. n48
However, the court did not find in Hayashi's favor even though the court adopted Gray's Rule and the rule arguably
applied to Hayashi. On the contrary, the court stated that because Popov probably lost control of the ball because of the
attack by the crowd, public policy demands that courts discourage brute force and encourage civility in the stands. n49
The unfairness that deprived Popov of the chance to possess the ball led the court to adopt a pre-possessory interest rule.
n50
The rule states, "Where an actor undertakes significant but incomplete steps to achieve possession of a piece of
abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property." n51
Thus, the pre-possessory interest accomplishes two goals of utmost importance. First, it allows Popov to continue
with his claim of [*611] conversion. n52 Because without a possessory interest, his claim fails. n53 Second, it addresses
the assault by the crowd. n54 Although Hayashi was able to obtain full and complete possession of the ball, his claim had
a cloud over the title to the ball as a result of Popov's pre-possessory interest. n55 Therefore, both men had an equal claim
to the ball. n56
The court stated that, over time, equity had sunk its roots into the law of lost or abandoned property. n57 Thus, possession is equal when neither party can claim superior control or intent to possess. n58 When claims of possession are
equal, both are equally entitled to possession. n59 Therefore, in the interest of equity, the court required that "the ball [] be
sold and the proceeds divided equally." n60
III. Legal Background
A. Possession, Baseball, and the Capture of Wild Animals
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The primary focus of Popov was on possession. Possession is defined as the "right under which one may exercise
control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object." n61 A few professors argued that the law of the capture of wild animals applied to the facts of the case. n62 Another authority also suggests that the Popov decision should have followed the public policy of the capture of wild animals. n63 [*612] But as Judge McCarthy recognized, the definition of possession will differ depending on the custom
and practice of the industry. n64 As the decision may infer, it is apparently like nailing jelly to a wall.
In Pierson v. Post, n65 the issue was whether the plaintiff had established possession of a fox he was chasing, even
though the defendant shot and killed the fox before the plaintiff had a chance to control it. n66 The court recognized that,
as a general rule, property vests in the owner once occupancy is established. n67 However, the court had to narrow the
issue and consider whether there were certain acts that established occupancy. n68 The lower court held in favor of the
pursuer, but the New York Supreme Court reversed, relying on several authorities. n69 Based on the authorities, the court
found that "mere pursuit gave [the pursuer] no legal right to the fox, but that he became the property of [the shooter],
who intercepted and killed him." n70 Therefore, the court held pursuit of a fox was not an act that established unequivocal
possession. n71 Furthermore, to hold that a person in pursuit of a wild animal maintains possession without controlling it
would lead to much litigation. n72 The court reasoned that requiring a hunter to mortally wound an animal would create
certainty and order in society. n73
In Ghen v. Rich, n74 a fisherman shot and killed a whale, but the whale was not recovered immediately because it
sank to the bottom of the ocean after it was killed. n75 The whale was found on the shore by a stranger who sold it at an
auction. n76 When the fisherman learned of this, he immediately claimed title. n77 The court held that it was customary and
general knowledge in the industry that, once a whale was killed by a fisherman, it was the property of the killer, no
matter who found the whale. n78 The court reasoned that this was a limited application to the [*613] general rule of
possession, where one who controls, possesses. n79 Custom and usage apply in the whale industry because it is more difficult to immediately possess a whale once it is killed because it will sink to the bottom immediately. n80 Thus, as long as
the fisherman does everything that he reasonably can to maintain possession within the custom of the industry, the
whale will be considered his for purposes of possession. n81
B. Assumption of Risk
Beyond the possession issue, there were other policy implications the court did not address. There are certain risks
inherent in the game of baseball, such as foul balls or broken bats. This is clear because the Cincinnati Reds provide the
following disclosure to invitees: "The holder assumes all risk incidental to the game of baseball, including specifically .
. . the risk of being injured by thrown bats, thrown or batted balls, or items thrown by other patrons, and agrees that . . .
the Cincinnati Reds . . . will [not] be liable for injuries . . . . " n82 In general, courts have traditionally applied the doctrine
of assumption of the risk to patrons struck by these items. n83 The Second Restatement of Torts states, "A plaintiff who
voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for
such harm." n84
In Brown v. San Francisco Ball Club, n85 a woman was injured by a baseball that was thrown from second to first
base. n86 The injured woman was seated in an unscreened area. n87 The only screened portion of the ballpark was the
seating area behind home plate. n88 The injured party brought a suit against the owners of the ballpark for a breach of
their duty to protect invitees. n89 The trial court entered a directed verdict for the owners, and the injured party appealed.
n90
The California Court of Appeals stated that the general duty of care owed by the owner of [*614] property to an
invitee is to keep the premises reasonably safe and to warn of non- obvious dangers. n91 Thus, the owner of property is
not liable for injuries sustained to an invitee from dangers that were obvious if all reasonable care was used. n92
The owner's duty will depend on a person's capacity and opportunity to protect himself or herself, whether that
person is the invitor or the invitee. n93 By voluntarily entering the stands, the spectator assumes and accepts the risks that
are inherent in the game. n94 A common risk in baseball is being struck by a ball and owners are not liable for this risk,
except in the absence of reasonable care. n95 The duty of reasonable care extends to providing screened seats in certain
areas of the ballpark. n96 The duty does not require management to provide screening for all patrons because some prefer
not to sit behind a screen because it obstructs the view. n97 Finally, the injured woman argued that, because she was ignorant to the risks inherent in the game of baseball, she could not have knowingly assumed the risk. n98 But the court
disposed of this argument by pointing out that the game of baseball was not one of predictability, and because of her
limited exposure to baseball in the past, the risks were imputed to her. n99
Similarly, the game of hockey has applied this rationale to errant pucks shot into the stands. In Pestalozzi v. Philadelphia Flyers Ltd., n100 a spectator was struck and injured by a hockey puck while attending a hockey game. n101 The
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lower court held that the spectator assumed the risk of being struck; the spectator appealed, arguing that he intentionally
requested different seats behind the glass near the ice. n102 The court first equated a batted ball with a flying puck, stating
that sitting along the glass at a hockey game is similar to sitting along the first base line of a [*615] baseball game. n103
The court applied the "no duty" rule to this situation, which is similar to assumption of the risk. n104 The court then held
that the "no duty" rule applies to hockey fans, as well as baseball fans. n105 The final question was whether the risk was
common, frequent, and expected. n106 The court concluded that the spectator was aware of the risks that are inherent to
the game of hockey because he had attended a game prior to the one at issue. n107
C. Fan Delinquency
Naturally, baseballs batted into the stands result in fans pursuing them to possess as souvenirs. There are numerous
situations that may unfold as a result of this common and frequent occurrence. For example, fans may attempt to protect
themselves from being harmed by a foul ball by unintentionally invading another's seating area. Or fans may be overcome by the enthusiasm of the game by zealously chasing a foul ball to the point where they negligently bump, knock,
and injure an innocent spectator. The issue becomes whether the assumption-of-the-risk doctrine extends to these situations or whether spectators assume the risk of, not only being struck by a foul ball, but being struck by a patron attempting to possess the foul ball.
In Lee v. National League Baseball Club of Milwaukee, Inc., n108 a spectator was injured when she was knocked
from her seat by third parties who chased a foul ball hit into the stands. n109 An usher, who was previously stationed near
the injured spectator, left his post to attend to the post-game activities. n110 The owner argued that there was no reason to
believe that the absence of the usher would result in injury to spectators. n111 But because fans had scrambled to foul
balls in the past, the owners could have reasonably anticipated that an injury could occur in the future as a result of
third- parties' actions. n112 Therefore, the court held that an action for negligence could be sustained against the [*616]
owners. n113 The court further found that the absence of the usher proximately caused the spectator's injuries. n114 Evidence at trial showed that fans were reluctant to become disorderly when an usher was in the vicinity. n115 Further evidence showed that the ushers were instructed to follow a foul ball to its final destination so that no one would become
injured. n116
In their defense, the owners argued that the spectator assumed the risk of being injured when third parties chased a
foul ball and knocked the spectator out of her seat. n117 The court recognized that, as a general rule, a spectator assumes
the risk that a foul ball can cause injury at a baseball game. n118 But the court had to consider whether "it [was] a matter
of common knowledge that spectators at baseball games, who scramble for balls batted into the stands, are likely to forcibly knock other patrons out of their seats with such force as to injure them." n119 Based on the testimony in the trial
court, the court held that it was not common knowledge because an injury had not occurred prior to this case. n120 The
court recognized the possibility of future occurrences but stated that the spectator in this case could have reasonably
expected the owners of the stadium to provide adequate security in the event the crowd became disorderly. n121 The court
distinguished this situation from that of a spectator being struck by a foul ball. n122 It stated that, unlike the risk associated with disorderly fans, a spectator knows in advance the inherent risks of a batted ball and how to protect against
such a danger. n123 Therefore, the Wisconsin Supreme Court affirmed the holding of the trial court. n124
The Pennsylvania Superior Court, in Telega v. Security Bureau, Inc., n125 addressed the "no duty" rule once again
but under different circumstances. Mr. and Mrs. Telega were holders of Pittsburgh Steelers season tickets for two years
in a section near the end zone behind the [*617] goalpost. n126 During a game in December, the Steelers's place-kicker
kicked the football through the uprights but over the stadium net and into the seating area near Mr. and Mrs. Telega. n127
As the ball descended, Mr. Telega extended his arms and cleanly caught the ball. n128 However, before he sat down, he
was thrown from his seat by several fans who were attempting to strip the ball from his grasp; this caused him to fall
face first onto the concrete, resulting in several injuries. n129 Prior to the incident, several fans, including the Telegas,
filed complaints with the stadium's Guest Relations Office; the complaints stated that, on many occasions, fan misconduct resulted when the net failed to stop the football from landing in the stands. n130 The Telegas filed suit against Security Bureau, Inc. for breaching its duty of care to the fans in the area by the end zone because it was responsible for
providing security at the game. n131
The trial court granted summary judgment in favor of Security Bureau, Inc., holding that "the risk of injury was obvious, reasonably foreseeable[,] and voluntarily assumed by [Mr. Telega]." n132 The appellate court reversed, holding that
the no-duty rule did not apply under these facts. n133 The no- duty rule is "related to but distinct from" the traditional defense of assumption of the risk in Pennsylvania. n134
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The court explained that, as a general rule, courts have been reluctant to grant recovery to injured parties against
amusement facilities for injuries that were caused by activities containing inherent risks. n135 In justifying the no- duty
rule, the court compared the risk of being struck [*618] by a foul ball with the risk of being struck by a broken bat.
n136
Thus, the "no-duty rule[] appl[ies] only to risks which are 'common, frequent[,] and expected,' . . . and in no way
affect the duty of theaters, amusement parks[,] and sports facilities to protect patrons from foreseeable dangerous conditions not inherent in the amusement activity." n137 The court focused on whether the injury was the result of a risk that
was common, frequent, or expected, that is, whether it was inherent to the game. n138 The court held that a spectator does
not assume the risk of being attacked by fans when he catches a football. n139 The court reasoned that even though this
type of fan behavior occurred in Mr. Telega's section before, it is not a risk that is certain to occur each and every time
in any stadium. n140 The court found that the trial court incorrectly concluded that, because the injury happened before, it
must be assumed that it will occur again. n141 Such an assumption places a duty on the fan to protect himself even though
it is the primary job of the security firm to protect the patrons attending the game. n142 Furthermore, it is not a matter of
common knowledge that unruly fans will cause an injury while attempting to catch a football, as opposed to a foul ball
or an errant puck striking a fan. n143 Thus, a different outcome may have resulted had Mr. Telega been struck by the
football as it descended over the net. n144
In the dissenting opinion, the minority determined that the majority misapplied the no-duty rule by reasoning that a
broken bat is similar to Telega's case. n145 The "no-duty rule applies to situations which are common, frequent[,] and expected," requiring the injured party to introduce evidence that the amusement facility deviated from established custom.
n146
The record shows the Telegas were aware of the risks involved because they previously voiced their concerns about
fan behavior. n147 Therefore, the risk was common and customary in the game, [*619] and the Telegas assumed the
risks inherent in the game of football. n148
In Hayden v. University of Notre Dame, n149 the Hardens were football season-ticket holders whose assigned seats
were located behind the goalpost of the end zone. n150 During one of the games, a football was kicked over the safety net,
and it landed in the vicinity of where Mrs. Hayden was seated. n151 As several fans scrambled to catch the football, one of
the fans struck and injured Mrs. Hayden, which caused a shoulder injury. n152 The Hardens brought suit against the University, arguing that the University failed to use due care in the protection of the fans. n153 The University argued that,
even though Mrs. Hayden was an invitee, it had no duty to protect her from unforeseeable, criminal acts of third parties.
n154
The trial court granted the University summary judgment, but the Indiana Court of Appeals reversed. n155
The issue was whether the University owed a duty to Mrs. Hayden. n156 The appellate court used a "totality of the
circumstances" test to determine when a duty arises. n157 The test requires a court to consider "all of the circumstances
surrounding an event, including the nature, condition, and location of the land, as well as prior similar incidents, to determine whether a criminal act was foreseeable." n158 However, the lack of prior similar incidents will not bar a claim
where the landowner should have foreseen such criminal acts. n159 The court applied the totality of the circumstances test
and found that the University owed a duty to Mrs. Hayden against the criminal acts of third parties. n160 The court reasoned that, because the University was well aware of the enthusiasm that the game brings to the fans, criminal acts that
resulted from this enthusiastic response were foreseeable. n161 Furthermore, testimony of prior injuries resulting from
fans retrieving footballs established that the acts were foreseeable. n162 Other evidence established that the netting
[*620] caught the football about fifty percent of the time, and when the ball did make it over the net, the ushers did not
aggressively attempt to retrieve the balls. n163 Thus, the court reversed the judgment in favor of the Hardens, holding that
the University owed Mrs. Hayden a duty of reasonable care to protect her from fans attempting to retrieve souvenirs. n164
In Porter v. California Jockey Club, Inc., n165 a spectator who had attended a horse race brought suit against the
owners of the track for failing to provide adequate safety measures against third-party acts. n166 The spectator left her seat
to place a bet; and as she proceeded back to her seat, a man ran up the same stairway she was using, knocking her down
to the bottom of the steps. n167 At trial, she testified that a crowd of people had been standing on the stairway, which prevented her from grasping the handrail. n168 Additionally, she testified that she did not see a police officer or usher in the
area prior to the incident. n169 The manager of the track testified that there was an unusual amount of people at the track
on the day in question because it was a holiday. n170 Normally, the track employed fifteen ushers and thirteen police officers, but on this particular day the track had the usual fifteen ushers and increased the number of police officers to
seventeen. n171 There was also evidence that spectators habitually crowded the stairways and ran to the betting windows
prior to the start of each race. n172 The trial court asked whether the track should "assume not only that a man is going to
run but that he is going to run right into a person standing in that space that he must occupy, and guard against that." n173
The trial court held that because there was evidence of spectators habitually gathering and running to the betting booths,
and no evidence of prior negligent conduct on the part of the track, the injured party had no cause of action against the
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track. n174 Liability against a landowner extends to an invitee only when there is evidence that the landowner was on notice of the act of another from [*621] which he can reasonably conclude that an injury is possible. n175
The spectator appealed, and the California Court of Appeals affirmed. n176 The court of appeals stated that, where
there is no evidence to put the landowner on notice, a spectator is to assume that others will not act unlawfully. n177
Therefore, the court held that because there was no evidence that would reasonably put the landowner on notice that a
spectator would violently run into another spectator, the track owners have no duty to take steps to protect against such
an act. n178
In Johnson v. Mid-South Sports, Inc., n179 Mr. Johnson purchased a ticket to a wrestling match that was sponsored
and promoted by Mid-South Sports (Mid- South). n180 Mr. Johnson was a heavy-set man with a handicapped right arm
who always sat in the handicapped section so he would not have difficulty viewing the event. n181 Mr. Johnson had previous success securing a seat in the handicapped area, but on this occasion the area was full, and the ushers placed him
in an area next to the handicapped access ramp. n182
During the match, several rowdy spectators seated near Mr. Johnson made their way to and from the concession
area and periodically spilled beer on his boots and the handicapped ramp. n183 Before the final match began, another
spectator voiced his displeasure with the rowdy spectators; therefore, the group left. n184 Following the main event, Mr.
Johnson waited in his seat, as he customarily did, so that he could easily leave without disturbing others' space because
of his handicap and size. n185 However, before Mr. Johnson left his seat, he noticed someone coming toward him, so he
moved his legs to let the individual pass. n186 Nevertheless, the person charged at Mr. Johnson, knocking him several feet
into the air onto the beer-soaked ramp, fracturing his disabled arm in several places. n187 Mr. Johnson testified in his
deposition that he did [*622] not see who hit him, but he assumed that it was someone from the rowdy group expressing their displeasure with having to leave early. n188 He sued Mid- South for negligent control of the crowd. n189
The trial court granted summary judgment in favor of Mid-South, but the court of appeals reversed. n190 Mid-South
appealed to the Oklahoma Supreme Court, arguing that, although Mr. Johnson was an invitee, he failed to show that
Mid-South breached its duty of ordinary care to keep the premises in a reasonably safe condition. n191 The Oklahoma
Supreme Court reviewed the deposition and found that the initial complaint about the rowdy group came from an usher,
not Mr. Johnson. n192 The usher who was monitoring the situation requested that an officer come to the area. n193 Also,
Mr. Johnson's deposition stated that the individual who he thought struck him was one of the better-behaved of the
rowdy fans. n194 Furthermore, there was no evidence that anyone made a complaint regarding the rowdy fans sitting in
the area. n195 From the evidence, the court determined that the usher used ordinary care in dispelling a possible problem
by calling an officer. n196 There was also no evidence that the rowdy fans intended to return to the area or that Mid-South
knew, or should have known, that Mr. Johnson would be in danger. n197 In light of these facts, Mid-South used ordinary
and reasonable care in providing ushers and police officers to control the crowd. n198
The dissent criticized the majority's failure to recognize the promoter's duty to provide adequate and equal handicapped seating, the promoter's failure to take action when it became aware of the crowd's behavior, and the failure to
clear the beer-soaked ramp. n199
D. Duty of Landowners to Protect Invitees from Criminal Acts
The courts appear to distinguish between intentional and unintentional acts by third parties in determining liability.
The Second Restatement of Torts, Business Premises Open to Public, states:
[*623]
A possessor of land who holds it open to the public for entry . . . is subject to liability to members of the public
while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally
harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover
that such acts are being done or are likely to be done, or (b) give a warning adequate to enable visitors to avoid the
harm, or otherwise to protect them against it. n200
Ultimately, the issue is whether the bumping, jostling, or scrambling- intentionally or unintentionally-was a foreseeable act. The landowner is not the insurer of safety and does not have a duty until he knows or has reason to know
that acts by a third party will occur or are occurring. n201 Furthermore, the landowner may nevertheless have a duty if the
landowner has prior knowledge of such conduct and the likelihood of injury is great. n202
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In Delta Tau Delta v. Johnson, n203 the Supreme Court of Indiana addressed four different approaches in determining
whether a criminal act is foreseeable and, thus, imposes on a landowner the duty to use reasonable care to protect the
patron from the act. n204 The court examined the specific-harm test, the prior similar incidents test, the totality of the circumstances [*624] test, and the balancing test. n205 The specific-harm test states that "a landowner owes no duty unless the owner knew or should have known that the specific harm was occurring or was about to occur." n206 The prior
similar incidents test states that "a landowner may owe a duty of reasonable care if evidence of prior similar incidents of
crime on or near the landowner's property shows that the crime in question was foreseeable." n207 Under the totality of
the circumstances test, "a court considers all of the circumstances surrounding an event, including the nature, condition,
and location of the land, as well as prior similar incidents, to determine whether a criminal act was foreseeable." n208 Finally, under the balancing test, the court "balances 'the degree of foreseeability of harm against the burden of the duty to
be imposed.'" n209
In this case, the court adopted the totality of the circumstances test because the test allows a court to measure several different factors. n210 The court applied the test to the facts of the case, which involved the sexual assault of a woman
at a fraternity house. n211 The court found that the fraternity owed a duty of reasonable care to the woman at the house
because there were two prior incidents involving similar facts. n212 The fraternity was also on notice because of the information it received in reference to the frequency of sexual assaults in campus fraternities prior to the incident in question. n213
E. Implied Consent to Battery in the Stands
A final theory that was suggested, but not discussed in Popov, was whether Popov impliedly consented to a battery
by his conduct of entering the stands. n214 Battery is a cause of action for the intentional, and harmful or offensive contact
of another, but it can be barred by the implied consent of the battered party. n215
In Teeters v. Frost, n216 the parents of a minor, who was killed in a prize fight, sued the operator of a theater that advertised fights between amateur boxers. n217 An Oklahoma statute prohibited such "prize fights" because of their tendency to create quarrels and other breaches of the peace. n218 But the owner of the theater contended that the parents were
barred from recovering damages because the deceased consented to the fight. n219 However, the court responded by stating a majority of [*625] jurisdictions hold that consent is not an effective defense when individuals fight because the
state has an interest in punishing them. n220 Thus, if a breach of peace is involved, there is a public interest in seeing that
the participants bear full liability for their acts. n221
IV. Instant Case
In the 2003 baseball season, Sammy Sosa hit his 500th home run. n222 What might have happened to the baseball if
fan A attempted to catch the ball, touched the ball, but was knocked out of the way by fan B, who subsequently secured
possession of the ball? Does this mean that fan A has a pre-possessory interest in the ball, or has fan A assumed a risk?
What if fan A, fan B, and fan C touched the ball for less than a second and the ball finally landed in fan D's possession?
Does this also mean that fans A, B, and C also have a pre-possessory interest in the ball? In these scenarios, the fans
took "significant but incomplete steps to achieve possession of a piece of abandoned personal property [but] the effort
[was] interrupted by the unlawful acts of others." n223 It appears the court in Popov would answer these questions in the
affirmative. However, the holding of the case does not establish a clear-cut rule of possession in the event a foul or fair
ball enters the stands. It is unclear what these "significant but incomplete steps" are. The court succeeded in serving an
equitable remedy to both parties, especially under the circumstances. The court had to deal with the intentional wrongs
suffered by Popov, the value of the baseball, and Hayashi's apparently innocent conduct. Neither party came out of the
litigation empty-handed. [*626] From an equity standpoint, the court should be applauded. However, the court failed
to address other considerations. By finding that Popov had a pre-possessory interest in the baseball, the court effectively
opened the door to similar claims without proof of actual possession.
A. The Misapplication of Possession
Many of the authorities on possession argued that the rule regarding the capture of animals should apply in this situation. n224 The general rule of Pierson and Ghen is that a pursuer of an animal acquires possession by wounding the
animal, not the eventual capture of the animal. n225 Popov argued that he intended to control the ball by stopping its forward momentum regardless of whether he had achieved complete control. n226 By stopping the forward momentum of the
ball, Popov effectively "wounded" the ball. But the court correctly extinguished this argument by recognizing that the
rule of capture was limited to the time period and custom in the industry. n227
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Moreover, in Ghen, the animal was a whale. n228 The court in Popov distinguished between a whale and a baseball.
A whale is too large to put in one's hands to establish possession, but a baseball can be absolutely possessed by
clasping one's hands or glove around it. n230 In a sense, a wild animal has perpetual existence; whereas, a baseball's "life"
is determined by gravity. In other words, a wild animal may continue to run once it is maimed. Here, the hunter has
done all he can to possess the animal. Simply chasing after the animal is not enough to effectuate steps satisfactory of
capture. n231 But a baseball will eventually come down, and its "life" or "final resting place" can be determined with
some certainty, while an animal's life is dependant on the time, place, and manner in which the hunter decides to capture
it. A baseball will come down whether the catcher decides to take the effective steps or not.
n229
Another argument is that the court in Popov should have decided the [*627] case according to the dictates of
Pierson. n232 Patrick Stoklas argued that the court satisfied the certainty element in awarding Hayashi the baseball because he was the only one who could establish possession. n233 However, Stoklas also argued that the court failed to
achieve the second goal in Pierson-promoting safety and civil obedience. n234 The second goal is further discussed later
in this Casenote.
The court adopted "Gray's Rule," n235 but it did not stop there. Gray's Rule should have controlled the outcome of the
case because it is most consistent with the custom and practice in baseball industry. Gray's Rule is also most consistent
with Black's legal definition. n236 Thus, Gray's rule, as well as the definition of possession, satisfies the certainty element
of Pierson.
B. Custom in the Stands
As the court stated in Popov, possession is often defined by the "rules of conduct which are understandable and
consistent with the fundamental customs and practices of the industry they regulate." n237 In Ghen, the court held that it
was customary and of general knowledge in the industry that once a whale was killed by a fisherman, it was the property of the killer, no matter who found the whale. n238 But the court in Popov correctly distinguished the Ghen holding
from Popov's argument by recognizing that the rule of capture was limited to the time period and the custom in the industry. n239
However, the court in Popov may have overlooked the custom of retrieving a ball in the stands. So what is the custom in the stands? Because of the velocity at which a baseball travels, arguably a fan will rarely catch a foul ball without someone else stopping its momentum first. But there is no dispute as to who is the actual holder of the baseball. The
holder will usually be the fan who stretches underneath the chair of the patron in front of him, who stopped the ball in
the first place. Subsequently, fans will then congratulate the fan who happened to be in [*628] the right place at the
right time. Most of the time, the fan who took the least amount of steps to stop the forward motion of the ball is the one
who eventually captures it. Capture of a foul ball is not an orchestrated event. It is highly unorganized, and the crowd
can be as dangerous as the foul ball itself. But this is the custom and practice of the stands at baseball games. To hold
otherwise would lead to confusion and more chaos, which the court was attempting to prevent. The Senior Vice President of Ballpark Operations stated that "possession is nine-tenths of the law." n240 Major League Baseball recognized that
once possession is established, there is no remedy afforded to those who never established possession. n241 It appears
clear that Major League Baseball does not wish to make things complex either. It recognizes the custom and practice in
the stands and does not wish to make things more difficult for itself, the organizations, or the fans because of the possibility of increased litigation.
Arguably, it is customary for fans to chase after foul balls to obtain possession. But this will often lead to fan incivility and a lack of safety. Professor Stiglitz stated that the judge was encouraged to develop a holding that promoted
fan civility. n242 The primary reason the judge did not hold in favor of Hayashi was because, as the judge put it, "[w]e are
a nation governed by law, not by brute force." n243 However, now it is likely that anyone who puts his hands on a baseball will initiate a lawsuit, claiming that he too has a pre- possessory interest. As Professor Stiglitz suggested, this holding will only encourage fan incivility, not alleviate it. n244
C. Should Fan Incivility Be an Inherent Risk Assumed by Fans, Thus Barring Any and All Claims Including Possessory Rights?
The Second Restatement of Torts states, "A plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm." n245 The general rule of most [*629] major
league ballparks is, "The holder assumes all risk incidental to the game of baseball, including specifically . . . the risk of
being injured by thrown bats, thrown or batted balls, or items thrown by other patrons, and agrees that . . . the [baseball
organization] . . . will [not] be liable for injuries . . . ." n246 The reasoning is that batted balls are not a controllable factor
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in the game of baseball. n247 However, the Cincinnati Reds do not allow recovery for "items thrown by other patrons." n248
The Cincinnati Reds apparently recognize that they cannot control a patron's behavior the same way they cannot control
batted balls. But the game of baseball has not changed dramatically enough to warrant shock and outrage by the courts.
Earlier cases suggest that sporting events have experienced similar dilemmas over the years.
In Lee the court suggested that it was not common knowledge that fans might assume the risk of injury by zealous
third parties. n249 This case might have been decided differently today because of the custom andnature of fan behavior.
Batted balls or broken bats are clearly risks inherent in the game. But the disclosure printed on the back of the Cincinnati Reds' tickets suggests that items thrown by fans are also risks that are inherent in the game. Therefore, if items
thrown by fans are a risk inherent in the game and an act of common knowledge, then fans chasing foul balls and the
resulting injuries or loss of the possessory interests must be inherent to the game of baseball and of common knowledge.
Just as a plaintiff loses the right to sue for negligence when he assumes the risk, so should Popov. Popov should lose his
right to claim possession because he assumed the risk of being injured by zealous fans chasing after a piece of history.
He knew or should have known of the risks when he voluntarily chose to sit in the arcade area.
The court's reasoning in Brown focused on unpredictability as a key factor in imputing assumption of the risk onto
patrons. n250 Furthermore, the court in Pestalozzi found that flying hockey pucks are a risk that is common, frequent, and
an expected part of the game. n251 Therefore, if batted or thrown baseballs or items thrown by fans are considered to be
an unpredictable portion of the game, then fans who chase after baseballs should be an extension of that unpredictability. The reasoning is that acts by third parties-whether negligent or intentional-are by their [*630] nature unpredictable, especially criminal acts. To ask security or anyone else to be responsible for the acts of another patron is similar to
placing a duty on police officers to detect criminal acts before they occur and holding them liable for not doing so. The
same is true with negligent acts. Absent any indication that criminal or negligent activity is afoot, there should be no
duty.
All of the cases appear to impose an unreasonable duty on security to detect criminal acts before they occur. Certainly, a stadium full of thousands of people presents the potential for acts of violence, especially when a spectator's
space is confined. But to ask security personnel to control all of these people presents an unreasonable burden. The
court in Porter addressed a similar issue. It asked whether the landowner should "assume not only that a man is going to
run but that he is going to run right into a person standing in that space that he must occupy, and guard against that?" n252
However, there is a clear distinction between negligent acts by third parties and intentional, criminal acts by third parties. Popov was the victim of the latter. But the courts are adamant about not distinguishing the two. In Lee, the court
held the ushers at a baseball game liable for failing to protect a woman from patrons scrambling for a foul ball. n253 The
court reasoned that although foul balls were a matter of common knowledge, injuries occurring as a result of third parties chasing a foul ball were not. n254 The court then addressed the unintentional acts of third parties.
The courts in Telega and Hayden addressed injuries occurring as a result of criminal acts of third parties. The court
in Telega refused to apply the no-duty rule, holding that the rule only protected landowners from risks that were common, frequent, and expected. n255 In Hayden the court focused on the foreseeablity of the criminal act in question and
held that the University was liable for the criminal acts of third parties when there is evidence of prior similar incidents.
n256
However, the dissent in Telega stated that the no-duty rule should apply because the spectators at the game had been
aware of similar incidents in the past because they had been season ticket holders for two years; therefore, fans lunging
for footballs kicked over the net was a common, frequent, and expected part [*631] of the game. n257
The court in Johnson addressed the criminal acts of spectators and held that, under the circumstances, the landowner used reasonable care prior to the initial incident in dispelling foreseeable dangers. n258 Thus, with criminal and negligent acts, a landowner has a duty to act when he is put on notice. As long as he has taken reasonable steps to dispel further problems, the landowner will not be held liable.
Understandably, courts will be very reluctant to award judgment in favor of fan incivility. There is a clear public
policy argument being made by the courts that encourages fans to act reasonably and civilly to each other during the
course of a game. But there should be a clear understanding that fans are not intentionally attempting to injure other
fans, especially if the baseball is not one of economic or historic value. Fans, for the most part, react to an event and
may inadvertently bump, knock, or even injure the fan sitting next to them. It is also important to remember that fans
are confined to small areas. Accidents are bound to happen, especially in small, confined areas with thousands of fans
present at the game. Bumping, scrambling, and knocking are clearly common, expected, and frequent events that are
part of attending a sporting event. If a fan can be bumped or jostled, then it can be expected that whatever is in the fan's
possession, whether it be a hot dog, a beer, or a baseball, is at risk because of attending the game. Fans assume a certain
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risk inherent in the unpredictability of foul balls; therefore, fans should also assume the inherent and unpredictable risk
of losing items in the stands.
As mentioned in the prior section, Patrick Stoklas believed that the court satisfied the first goal of Pierson but failed
to address the goal of providing safety to the fans. n259 The court in Popov made it clear that the mob action in question
was partially intentional. n260 Public policy would appear to dictate that Popov should not have to expect such violence at
a baseball game. However, there are facts in the case indicating that Popov may have at least expected such actions.
First, there was knowledge by at least every attendant at the game that Bonds's next home run would be historic.
Second, whoever caught the ball would reap a substantial amount of money, possibly in the [*632] million-dollar
range. n261 Third, the Giants's website posted where Bonds hit a majority of his home runs, which happened to be in the
arcade area where the incident occurred. n262 All of this information indicates that some fans were going to be exposed to
some sort of risk when Bonds hit his next home run. In other words, any fan who had knowledge of the history of the
home run, the value of the ball, and likelihood the home-run ball would land in the arcade area, should have known that
some sort of uncivil behavior might result. If an airplane dropped one million dollars onto thousands of people, it can be
expected that even reasonable people would act uncivilly toward each other. Thus, Popov should have realized his personal safety was at risk.
The circumstances in the Popov case are unique, and the normal duties imposed on reasonable people cannot be
assumed by any court. Essentially, one million dollars was being thrown into the crowd that day, and reasonable people
did what reasonable people do-they put their life and limb in jeopardy for the chance of becoming a millionaire. Thus,
anyone who entered the arcade area that day assumed the risk that this could occur. It can only be expected that when a
one million dollar piece of property is going to be hit into a mass of people, someone may become injured by intentional
acts. This is not to say that assumption of the risk applies to the everyday situation. Again, the facts of the case are very
unique. The reasoning here should be limited to those situations where the factors are certain, as they were here. Had the
court taken into account the factors unique to this game, it could have found an equal balance between certainty and
safety. Certainty was easily shown by Hayashi's absolute possession. The safety element would have been justified by
holding that Popov risked his own safety by voluntarily sitting in an area that had a very high potential to become dangerous.
Stoklas proposed an idea whereby Major League Baseball would institute a rule that, if a fan catches a baseball, he
should be stripped of the ball by the baseball authorities and given something in return, such as a voucher, or a chance
to meet a ballplayer after the game. n263 The effect would reduce safety hazards to attending fans. n264 However, fans come
to games with the intention and hope of retaining a foul ball for their own keepsake. Thousands of children come
equipped with gloves just for this purpose. Furthermore, stadium owners have a difficult time attracting fans in the first
place. If the owners were forced to provide [*633] fans with vouchers, they would have to give out hundreds of tickets to the fans who caught them. Numerous foul balls are hit into the stands each and every game, which would cause
significant revenue losses if the owners had to provide a ticket to each catcher of a foul ball. Because few people attend
games alone, the owners would probably have to give two tickets so that the catcher of a ball could bring a companion.
The same problem exists with forcing the players to meet with the fans who caught the baseball. Players would be
forced to meet with many fans each game. Players have their own lives filled with their own agendas. In sum, this
would not sit well with many of the egos present in today's game.
Finally, this proposal does not solve the safety issue. Fans would have a greater incentive to chase a foul ball if
they were offered a free ticket or the chance to meet a ballplayer; this would create more incivility, not reduce it. If a fan
knew prior to catching a foul ball that he would get a free ticket, he might have more incentive to intentionally injure
someone to get the foul ball. After all, the average foul ball is worth less than a ticket or a chance to get a free autograph.
For the reasons stated above, a clear-cut rule would not work. The factors created in the moment forced the ball out
of Popov's grasp. The potential value, the history, and the area where the home runs were hit worked against Popov.
This is why a holding under these circumstances should be limited to the particular and unique facts.
D. Was the Vicious Attack on Popov Foreseeable?
Popov may have had a remedy after all. In conjunction with the Pierson reasoning, n265 and Stoklas's argument, n266
Popov could have argued to shift the burden to the Giants because they failed to provide the safety needed in the arcade
area. The Restatement makes it clear that landowners have a duty to protect invitees against negligent or intentional
foreseeable acts. n267 The court in Popov mentioned that Major League Baseball has a duty to provide security in the
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stands to maintain some level of civility but based its decision on fairness to Popov, stating that he should have had the
chance to catch the ball. n268 The court in Hayden held that when criminal acts are foreseeable, the landowner has
[*634] a duty to protect against these acts. n269 Because most of the courts are reluctant to find that a spectator assumes
the risk of being struck by a third party, whether intentional or unintentional, Popov may have been able to sue the Giants organization for failing to provide adequate security. As previously mentioned, the Giants organization may have
been put on notice because of factors such as the value of the ball, its historic significance, and the knowledge of where
Bonds hit a majority of his home runs. Popov could have argued that the Giants' prior knowledge of these factors made
criminal acts foreseeable. The lack of prior similar incidents will not bar a claim where the landowner should have
foreseen such criminal acts. n270
Under the specific-harm test, "a landowner owes no duty unless the owner knew or should have known that the
specific harm was occurring or was about to occur." n271 It would not have been unreasonable for the Giants to provide
more security in the arcade area that day in anticipation of the historic possibility. It also would not have been unreasonable for the Giants to limit seating and standing room only to provide extra room for security. When Roger Maris hit
his historic sixty-first home run, which broke Babe Ruth's home-run record, the left-field seats were empty while the
right-field seats were filled with anxious spectators hoping to get a taste of history. n272 Thus, the history of baseball and
its fans would have provided an indication to baseball officials that there was a possibility of less than civil behavior.
Under the prior similar incidents test, "a landowner may owe a duty of reasonable care if evidence of prior similar
incidents of crime on or near the landowner's property shows that the crime in question was foreseeable." n273 The prior
similar incidents test is probably the most restrictive of thefour tests. It requires that the landowner be aware of prior
similar incidents to be liable for a subsequent criminal act. n274 There was no indication on the record in the case, and
common knowledge would not indicate that fans intentionally injure each other to obtain a souvenir. Thus, if the court
applied this test to the facts of Popov's claim, it would most likely fail for lack of a similar or prior incident.
The totality of the circumstances test "considers all of the [*635] circumstances surrounding an event, including
the nature, condition, and location of the land, as well as prior similar incidents, to determine whether a criminal act was
foreseeable." n275 Because of the unique circumstances of the Popov case, the court would have certainly found that the
test was met. The court would have considered the historic event, the location where Bonds hit a majority of his home
runs, and the value of the ball as evidence of foreseeablity. Thus, the totality of the circumstances would have indicated
that the owners of Pac Bell Park would have had a duty to implement protective measures because of the high probability of criminal activity.
Finally, the balancing test "balances the degree of foreseeability of harm against the burden of the duty to be imposed." n276 Arguably, the foreseeablity of harm was great. However, Professor Stiglitz indicated that it would be an unreasonable burden to place additional security or to limit the seating area to provide for more security. n277 The owners
may have considered the possibility of providing extra security, but may have dismissed the idea as too costly. In other
words, the owners may have lost money by limiting tickets and paying more for extra security. Furthermore, Professor
Stiglitz indicated that Popov did not suffer from any physical injury. n278
E. Hayashi as a Beneficiary
Professor Stiglitz further suggested that Hayashi was the beneficiary of a wrongful act and therefore should give
back what was taken from Popov. n279 Professor Stiglitz compared the case to a hypothetical of a watch being stolen by C
off the wrist of A. n280 If C drops the watch and B picks it up, then B, as a third-party beneficiary of a wrongful act, must
return the watch to A. n281 However, the scenarios are different in comparison. In Professor Stiglitz's example, the owner
of the watch had indisputable possession of the watch. Popov, on the other hand, did not. There was no conclusive evidence to prove that Popov did have possession.
[*636]
F. Do Fans Consent to a Battery When They Enter the Stands?
The Teeters case is the majority position around the country. n282 The public policy argument is that there is a public interest in seeing that participants involved in a breach of peace should bear full liability for their acts. n283 The court
in Popov was adamant in seeing that Popov receive some sort of remedy because he was stripped of the ball by force. n284
Neither this court nor any other would ever find that fans impliedly consent to a battery when they enter the stands. If
courts did, baseball stands would become prize fights, and no one would attend games. After all, baseball, in theory, is
for families, not thugs. Nevertheless, spectators still assume risks inherent in the game, such as foul balls and, apparently, items thrown by fans.
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G. The Future of Historic Memorabilia
The Popov case was very unique. Situations such as this one can be anticipated and avoided. The difference between this case and previous games was the value of the baseball, the historic home run, and the area in which it was
hit. An across- the-board rule cannot be formulated because of the complexity of the issue and the confined spaces at a
sporting event. However, a clear-cut rule should have been addressed in the context of this case. First, possession of a
baseball, whether it is a foul ball or a historic home-run ball, should not be defined by anything other than the simple
definition of possession because, as Stoklas pointed out, this would create certainty. n285
As for the safety issue, those who assume the risk of injury because the circumstances are ripe for danger should
not only be stripped of the right to sue for negligence, but stripped of any pre-possessory interest as well. This rationale
is similar to denying a fireman the right to sue a homeowner, who, because of the homeowner's negligence, was injured
while putting out the fire in the homeowner's home. The court in Popov should have constructed a holding that focused
on the factors and dangers present that day in the arcade area by extending assumption of the risk. If the court had limited its holding to the particular facts, then there would not have been this slippery slope called a pre-possessory interest.
[*637]
Most courts are unwilling to extend this rationale. n286 But if the courts are willing to follow the rationale in Pierson,
then they should encourage litigants to sue the owners for failing to provide adequate safety personnel. The goal in
Pierson is accomplished by "preserving peace and order in society." n288 Either way, the issue of safety is addressed by
setting new public policy, denying the fan any right to sue for possession because he has assumed the risk of losing a
possessory right in a baseball or placing the burden on the owners to provide more security.
n287
Nevertheless, the next time a court is confronted with a similar issue, it must consider outside factors such as the
value of the ball, the areas that may be affected by fan behavior, and when the event may occur. This will help a court
narrow the issue of safety. Both suggestions of assumption of the risk and more security should be limited only to
unique cases such as this one. The everyday foul ball should be controlled by the court of baseball. There is no reason
to extend assumption of the risk to the everyday foul ball because it is expected that fans will behave in a reasonable
manner. What makes the baseball at issue in Popov different from the everyday foul ball is the danger and risk associated with the value of the ball. Economic opportunity will often fly in the face of reasonableness.
V. Conclusion
Popov should not have had a remedy or a cause of action for the ball. A pre- possessory interest is not a manageable legal concept when applied to the game of baseball. Furthermore, it prompts too many questions and requires another court to either overrule the doctrine or allow more litigants to argue that they too have an interest in abandoned property. Therefore, the court should have dismissed the case because of the inherent risks involved in this particular case
and also because Popov could not prove he had absolute control. Hayashi was also the only one who could prove that he
alone established total control of the baseball. It is also possible that Popov's litigious efforts were aimed erroneously at
Hayashi. Instead, he may have had a better chance of suing the Giants for failing to provide adequate protection against
third-parties. [*638] Nevertheless, society assumes certain risks when engaging in activities that are inherently dangerous. Thus, to heed the advice of Justice Cardozo, "the timorous may stay home." n289
Legal Topics:
For related research and practice materials, see the following legal topics:
TortsNegligenceDefensesAssumption of RiskAthletic & Recreational ActivitiesTortsNegligenceDefensesAssumption
of RiskElements & NatureRelationships Between PartiesTortsNegligenceDefensesAssumption of RiskElements & NatureVoluntariness
FOOTNOTES:
n1 Popov v. Hayashi, No. 400545, 2002 WL 31833731, at *1 (Cal. Super. Ct. Dec. 18, 2002).
n2 1 Kings 3:23-25 (The New American Bible).
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20 T.M. Cooley L. Rev. 605, *
n3 Diana Walsh & John Shea, Things Get Ugly in Battle for Ball, S.F. Chron., Oct. 8, 2001, at B7.
n4 Joe Garofoli, Bleachers Law Goes to Class, S.F. Chron., Nov. 7, 2002, at A24.
n5 Popov, 2002 WL 31833731, at *6-7.
n6 See Restatement (Second) of Torts: Assumption of Risk § 496A (1965).
n7 Disclosure statement preprinted on Cincinnati Reds ticket, 2003 (on file with author).
n8 Popov, 2002 WL 31833731, at *3.
n9 Id.
n10 Patrick Stoklas, Comment, Popov v. Hayashi, A Modern Day Pierson v. Post: A Comment on What the Court Should Have Done With
the Seventy-Third Home Run Baseball Hit by Barry Bonds, 34 Loy. U. Chi. L.J. 901, 905 (2003) (stating that the court should have focused
on the goals of Pierson v. Post, which required a hunter to take certain steps to maintain possession, and that the court should have created a
rule that protected certainty and reduced conflict); see also Pierson v. Post, 3 Cai. R. 175, 179 (N.Y. Sup. Ct. 1805) (stating that the requirement of wounding an animal to its death would create certainty in possession and preserve peace).
n11 Stoklas, supra note 10, at 905.
n12 Id.
n13 See Popov, 2002 WL 31833731, at *6.
n14 Id. at *1.
n15 Id.
n16 Id. at *1 n.2. The Giants's website contained a page that illustrated a majority of Bonds's home runs landed in the arcade area where
Popov and Hayashi were sitting. Id.
n17 Id. at *1.
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20 T.M. Cooley L. Rev. 605, *
n18 Id.
n19 Id.
n20 Garofoli, supra note 4, at A24.
n21 Popov, 2002 WL 31833731, at *2.
n22 Id.
n23 Id.
n24 Id.
n25 Id.
n26 Id.
n27 Id.
n28 Id.
n29 Id.
n30 Id.
n31 Id. at *3.
n32 Id. (citations omitted).
n33 Id. (citing Metro. Life Ins. Co. v. S. F. Bank, 136 P.2d 853, 856 (Cal. Dist. Ct. App. 1943)).
n34 Id.
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20 T.M. Cooley L. Rev. 605, *
n35 Id. (citing Paul Finkelman, Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?, 23 Cardozo L. Rev. 1609
(2002) (focusing on theories by which a fan claims ownership of a baseball and when a baseball becomes abandoned property)).
n36 Id.
n37 Id. at *4.
n38 Id. at *3.
n39 Garofoli, supra note 4, at A24. The judge requested the panel of law professors to assist him in determining who had possession of the
baseball. Id.
n40 Id.
n41 Id.
n42 Popov, 2002 WL 31833731, at *4-5.
n43 Id.
n44 Id. at *5.
n45 Id.
n46 Id.
n47 Id.; see also Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805) (explaining that it was customary to regulate nuisance animals that
were unwanted by society); Ghen v. Rich, 8 F. 159 (Mass. Dist. Ct. 1881) (extending the rule to larger animals, such as whales, because it
was impossible to capture them immediately due to the size and weight of the animal).
n48 See Popov, 2002 WL 31833731, at *5.
n49 Id. at *6; see also id. at *6 n.35 (explaining that Major League Baseball can enforce the rule of law by providing security against foreseeable acts of violence in the stands).
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n50 Id. at *6.
n51 Id.
n52 Id.
n53 See id.
n54 Id. at *7.
n55 Id.
n56 Id.
n57 Id. (citing R.H. Helmholz, Equitable Division and the Law of Finders, 52 Fordham L. Rev. 313, 315 (1983)) (borrowing the concept of
equitable division, which could be traced back to Roman times).
n58 Id. at *8 (citing Arnold v. Producers Fruit Co., 61 P. 283 (Cal. 1900). In this case, the fruit company mixed bad fruit in with good fruit.
Id. When the plaintiff complained, the fruit company argued the plaintiff could not prove that all the fruit was bad because good and bad
fruit were mixed together. Id. The court concluded that it did not matter because each had an undivided interest in the whole. Id.)
n59 Popov, 2002 WL 31833731, at *8.
n60 Id.
n61 Black's Law Dictionary 537 (7th ed. 1999).
n62 Popov, 2002 WL 31833731, at *3.
n63 Stoklas, supra note 10, at 905 (stating that the court should have focused on the goals of Pierson v. Post which required a hunter to effectuate certain steps to maintain possession and that the court should have created a ruling that protected the policy arguments in Pierson,
which was certainty and the reduction of conflict).
n64 Popov, 2002 WL 31833731, at *4.
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n65 3 Cai. R. 175 (N.Y. Sup. Ct. 1805).
n66 Id. at 177.
n67 Id.
n68 Id.
n69 See id.
n70 Id. at 178.
n71 See id. at 179.
n72 Id.
n73 Id.
n74 8 F. 159 (D. Mass. 1881).
n75 Id. at 160.
n76 Id.
n77 Id.
n78 Id. at 162.
n79 See id.
n80 See id.
n81 Id.
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n82 Disclosure statement preprinted on Cincinnati Reds ticket, 2003 (on file with author).
n83 See Brown v. S. F. Ball Club, 222 P.2d 19 (Cal. Ct. App. 1950); Edling v. Kansas City Baseball & Exhibition Co., 168 S.W. 908 (Mo.
Ct. App. 1914).
n84 Restatement (Second) of Torts: Assumption of Risk § 496A (1965).
n85 222 P.2d 19 (Cal. Ct. App. 1950).
n86 Id. at 20.
n87 Id.
n88 Id.
n89 Id. at 19.
n90 Id.
n91 Id. at 20.
n92 Id. (citing Dingman v. A. F. Mattock Co., 104 P.2d 26 (Cal. 1940); Blodgett v. B. H. Dyas Co., 50 P.2d 801 (Cal. 1935); Mautino v.
Sutter Hosp. Ass'n., 296 P. 76 (Cal. 1931); Shanley v. Am. Olive Co., 197 P. 793 (Cal. 1921)).
n93 See id. at 20-21.
n94 Id. at 20.
n95 Id. at 20-21 (citing Edling v. Kansas City Baseball & Exhibition Co., 168 S.W. 908 (Mo. Ct. App. 1914)).
n96 Id. at 21. The protective netting will usually extend between the dugouts of the two teams and behind the home plate area. Id.
n97 Id.
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n98 Id.
n99 Id.
n100 576 A.2d 72 (Pa. Super. Ct. 1990).
n101 Id. at 73.
n102 Id.
n103 Id. at 74.
n104 Id.
n105 Id.
n106 Id.
n107 Id.
n108 89 N.W.2d 811 (Wis. 1958).
n109 Id. at 814.
n110 Id.
n111 Id.
n112 Id. (citing Restatement (Second) of Torts § 302(b) cmt. c (1965) (stating that "a negligent act or omission may be one which involves
an unreasonable risk of harm to another through either . . . the foreseeable action of another, [or] a third person . . .")).
n113 Id. at 814.
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n114 Id. at 815.
n115 Id.
n116 Id.
n117 Id.
n118 Id. (citing Prosser, Law of Torts § 55 (2d ed. 1955)).
n119 Id. at 816.
n120 Id.
n121 Id.
n122 Id.
n123 Id.
n124 Id.
n125 719 A.2d 372 (Pa. Super. Ct. 1998).
n126 Id. at 374.
n127 Id.
n128 Id.
n129 Id.
n130 Id.
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n131 Id.
n132 Id. (quoting Jones v. Three Rivers Mgmt. Corp., 394 A.2d 546 (Pa. 1978) (Trial Ct. Op. at 5)); see also Pestalozzi v. Philadelphia
Flyers Ltd., 576 A.2d 72, 74 (Pa. Super. Ct. 1990) (applying the no-duty rule to a hockey spectator who was struck by a puck, thus barring
recovery because being struck by a puck is a "common and reasonably foreseeable" risk inherent to the game of hockey). But see Jones, 394
A.2d at 551- 52 (holding that the no-duty rule, which bars recovery to baseball patrons in the stands because the risk is "common, frequent[,]
and expected," did not apply to a patron who was in a walkway and unaware that the game had started).
n133 Telega, 719 A.2d at 374.
n134 Id. at 374-75.
n135 Id. at 375 (citing Jones, 394 A.2d at 550).
n136 Id. at 375-76 (citing Jones, 394 A.2d at 551, citing Goade v. Benevolent & Protective Order of Elks, 28 Cal. Rptr. 669, 672 (Ct. App.
1963)).
n137 Id. at 376 (citing Jones, 394 A.2d at 551).
n138 Id.
n139 Id. at 376-77.
n140 Id.
n141 Id. at 376.
n142 Id.
n143 Id. at 377.
n144 Id.
n145 Id. (Joyce, J., dissenting).
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20 T.M. Cooley L. Rev. 605, *
n146 Id. (Joyce, J., dissenting) (citing Pestalozzi v. Philadelphia Flyers Ltd., 576 A.2d 72, 74 (Pa. Super. Ct. 1990)).
n147 Id. at 377-78 (Joyce, J., dissenting).
n148 Id. at 378 (Joyce, J., dissenting).
n149 716 N.E.2d 603 (Ind. Ct. App. 1999).
n150 Id. at 604.
n151 Id.
n152 Id.
n153 Id.
n154 Id. at 604-05.
n155 Id. at 604, 607.
n156 Id. at 605.
n157 Id.
n158 Id. at 605-06 (citing Delta Tau Delta v. Johnson, 712 N.E.2d 968, 972 (Ind. 1999)).
n159 Id. at 606 (citing Delta Tau Delta, 712 N.E.2d at 973).
n160 Id.
n161 Id.
n162 Id.
Page 110
20 T.M. Cooley L. Rev. 605, *
n163 Id. at 607.
n164 Id.
n165 285 P.2d 60 (Cal. Ct. App. 1955).
n166 Id. at 60-61.
n167 Id. at 60.
n168 Id.
n169 Id.
n170 Id.
n171 Id.
n172 Id. at 61.
n173 Id.
n174 Id.
n175 Id. (citing Edwards v. Hollywood Canteen, 167 P.2d 729 (Cal. 1946); Terrell v. Key Sys., 159 P.2d 704 (Cal. Ct. App. 1945); Stockwell v. Bd. of Trs., 148 P.2d 405 (Cal. Ct. App. 1944); Restatement (Second) Torts § 344 (1965)).
n176 Id. at 60-61.
n177 Id. at 61 (citing Leo v. Dunham, 264 P.2d 1, 3 (Cal. 1953)).
n178 Id.
Page 111
20 T.M. Cooley L. Rev. 605, *
n179 806 P.2d 1107 (Okla. 1991).
n180 Id. at 1108.
n181 Id.
n182 Id.
n183 Id.
n184 Id.
n185 Id.
n186 Id.
n187 Id.
n188 Id.
n189 Id.
n190 Id. at 1107-08.
n191 Id. at 1108 (citing C.R. Anthony Co. v. Million, 435 P.2d 116 (Okla. 1967)).
n192 Id.
n193 Id.
n194 Id. at 1108-09.
n195 Id. at 1109.
Page 112
20 T.M. Cooley L. Rev. 605, *
n196 Id.
n197 Id.
n198 Id.
n199 Id. at 1110 (Kauger, J., dissenting).
n200 Restatement (Second) of Torts § 344 (1965).
n201 Id. at § 344 cmt. f. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the
part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of
any particular individual. Id.
n202 Id.
n203 712 N.E.2d 968 (Ind. 1999).
n204 Id. at 971.
n205 Id.
n206 Id. (citing Boren v. Worthen Nat'l Bank, 921 S.W.2d 934, 940 (Ark. 1996); McClung v. Delta Square Ltd., 937 S.W.2d 891, 895
(Tenn. 1996)).
n207 Id. at 972 (citing Boren, 921 S.W.2d at 940-41; McClung, 937 S.W.2d at 899).
n208 Id. (citing Isaacs v. Huntington Mem'l Hosp., 695 P.2d 653, 659-61 (Cal. 1985)).
n209 Id. (citing McClung, 937 S.W.2d at 901).
n210 Id. at 973.
n211 Id. at 970.
Page 113
20 T.M. Cooley L. Rev. 605, *
n212 Id. at 973.
n213 Id. at 973-74.
n214 Telephone Interview with Jan Stiglitz, Professor of Law, California Western School of Law (Feb. 21, 2003).
n215 Restatement (Second) of Torts §§ 18, 60 (1965).
n216 292 P. 356, 357 (Okla. 1930).
n217 Id. at 357.
n218 Id. at 357-58.
n219 Id. at 359.
n220 Id. at 359-60. The state is wronged by this, and forbids it on public grounds. If men fight, the state will punish them. If one is injured,
the law will not listen to an excuse based on a breach of the law. There are three parties here; one being the state, which, for its own good,
does not suffer the others to deal on a basis of contract with the public peace. The rule of law is therefore clear and unquestionable that consent to an assault is no justification. The exception to this general rule embraces only those cases in which that to which assent is given is
matter of indifference to public order such as slight batteries in play or lawful games . . . . Id. (quoting McNeil v. Mullin, 79 P. 168, 169
(Kan. 1905)).
n221 See id. at 359.
n222 See Greg Couch, When Time Stands Still, Chicago Sun-Times, Apr. 6, 2003, at 127 (stating that Sammy Sosa reached the 500 home
run milestone on April 5, 2003, in Cincinnati without incident). Although Sosa has accomplished this feat, the situation still presents a prime
example for potential conflict in the future. See generally id.
n223 Popov v. Hayashi, No. 400545, 2002 WL 31833731, at *6 (Cal. Super. Ct. Dec. 18, 2002) (defining pre-possessory interest).
n224 Id. at *3-4.
n225 See generally Ghen v. Rich, 8 F. 159 (Mass. Dist. Ct. 1881); Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805).
n226 Popov, 2002 WL 31833731, at *5.
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20 T.M. Cooley L. Rev. 605, *
n227 Id.
n228 See Ghen, 8 F. at 160.
n229 Popov, 2002 WL 31833731, at *5.
n230 Id.
n231 But see Pierson v. Post, 3 Cai. R. 175, 181 (N.Y. Sup. Ct. 1805) (Livingston, J., dissenting) (stating that when one takes laborious
steps towards possession, he has gained a property right).
n232 See Stoklas, supra note 10.
n233 Id. at 932.
n234 Id. at 934.
n235 Popov, 2002 WL 31833731, at *4; see also supra text accompanying note 43 (defining Professor Brian Gray's rule).
n236 Black's Law Dictionary 537 (7th ed. 1999) (defining possession as the "right under which one may exercise control over something to
the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object").
n237 Popov, 2002 WL 31833731, at *4.
n238 Ghen v. Rich, 8 F. 159, 160 (Mass. Dist. Ct. 1881).
n239 Popov, 2002 WL 31833731, at *5.
n240 Diana Walsh & John Shea, Man Loses Fortune at Bottom of Pile, S.F. Chron., Oct. 8, 2001, at B7 (quoting Jorge Costa, Senior Vice
President of Ballpark Operations, responding to questions in reference to ownership of baseballs in the stands).
n241 Diana Walsh, Legal Ballgame Begins Over Catch of Bonds HR, S.F. Chron., Oct. 9, 2001, at E1. (quoting Jorge Costa, Senior Vice
President of Ballpark Operations, who stated that "once Major League Baseball identifies the individual with possession of the ball, that's the
end of that").
Page 115
20 T.M. Cooley L. Rev. 605, *
n242 Stiglitz, supra note 214.
n243 Popov, 2002 WL 31833731, at *6.
n244 Stiglitz, supra note 214.
n245 Restatement (Second) of Torts § 496A (1965).
n246 Disclosure statement preprinted on Cincinnati Reds ticket, 2003 (on file with author).
n247 See Brown v. S. F. Ball Club, 222 P.2d 19, 21 (Cal. Ct. App. 1950).
n248 Disclosure statement preprinted on Cincinnati Reds ticket, 2003 (on file with author).
n249 Id. at 816.
n250 See Brown, 222 P.2d at 21.
n251 Pestalozzi v. Philadelphia Flyers Ltd., 576 A.2d 72, 74 (Pa. Super. Ct. 1990).
n252 Porter v. Cal. Jockey Club, Inc., 285 P.2d 60, 61 (Cal. Ct. App. 1955).
n253 Lee, 89 N.W.2d at 816.
n254 Id.
n255 Telega v. Sec. Bureau, Inc., 719 A.2d 372, 376 (Pa. Super. Ct. 1998).
n256 See Hayden v. Univ. of Notre Dame, 716 N.E.2d 603, 605-06 (Ind. Ct. App. 1999).
n257 Telega, 719 A.2d at 377-78.
n258 See Johnson v. Mid-South Sports, Inc., 806 P.2d 1107, 1109 (Okla. 1991).
Page 116
20 T.M. Cooley L. Rev. 605, *
n259 Stoklas, supra note 10, at 934 (stating that "awarding Hayashi the ball would promote future chaos in ballparks and would harm the
second goal in Pierson").
n260 Popov v. Hayashi, No. 400545, 2002 WL 31833731, at *2 (Cal. Super. Ct. Dec. 18, 2002).
n261 Id. at *1 n.1.
n262 Id. at *1 n.2.
n263 Stoklas, supra note 10, at 940-42.
n264 Id. at 940.
n265 Pierson v. Post, 3 Cai. R. 175, 179 (N.Y. Sup. Ct. 1805).
n266 See generally Stoklas, supra note 10.
n267 See generally Restatement (Second) of Torts § 344 (1965). See also supra text accompanying note 200 (quoting the liability of a
landowner to an invitee).
n268 Popov v. Hayashi, No. 400545, 2002 WL 31833731, at *6 n.35 (Cal. Super. Ct. Dec. 18, 2002).
n269 See Hayden v. Univ. of Notre Dame, 716 N.E.2d 603, 606 (Ind. Ct. App. 1999).
n270 Id. at 606 (citing Delta Tau Delta v. Johnson, 712 N.E.2d 968, 973 (Ind. 1999)).
n271 Delta Tau Delta, 712 N.E.2d at 971 (citing McClung v. Delta Square Ltd., 937 S.W.2d 891, 895 (Tenn. 1996)).
n272 Baseball: A whole New Ballgame (Turner Broadcasting Systems, Inc. 1994).
n273 McClung, 937 S.W.2d at 895.
n274 Id.
Page 117
20 T.M. Cooley L. Rev. 605, *
n275 Delta Tau Delta, 712 N.E.2d at 972.
n276 McClung, 937 S.W.2d at 901.
n277 Stiglitz, supra note 214.
n278 Id.
n279 Id.
n280 Id.
n281 Id.
n282 See Teeters v. Frost, 292 P. 356, 359-60 (Okla. 1930).
n283 See McNeil v. Mullin, 79 P. 168 (Kan. 1905).
n284 Popov v. Hayashi, No. 400545, 2002 WL 31833731, at *6 n.35 (Cal. Super. Ct. Dec. 18, 2002).
n285 Stoklas, supra note 10, at 932-35.
n286 See Pierson v. Post, 3 Cai. R. 175, 179 (N.Y. Sup. Ct. 1805) (inferring that possession should attempt to accomplish certainty and
preserving peace, thus, courts might be unwilling to extend assumption of the risk to possession cases because this would not preserve peace
among the fans).
n287 Id.
n288 Id. at 179.
n289 Murphy v. Steeplechase Amusement Co., 166 N.E. 173, 173-74 (N.Y. 1929).
Page 118
996 of 999 DOCUMENTS
Copyright (c) 2003 The University of Tulsa
Tulsa Law Review
Spring, 2003
38 Tulsa L. Rev. 485
LENGTH: 9604 words
SYMPOSIUM: TORTS AND SPORTS: THE RIGHTS OF THE INJURED FAN: A FOUL BALL IN THE COURTROOM: THE BASEBALL SPECTATOR INJURY AS A CASE OF FIRST IMPRESSION
NAME: J. Gordon Hylton*
BIO: * Professor of Law, Marquette University. B.A., Oberlin College; J.D., University of Virginia; Ph.D., Harvard
University. The author is indebted to David Arcidiacono, Darryl Brock, Frederick Ivor Campbell, Lloyd Johnson, E.
Michael McCardel, Peter Morris, and Frank Vaccaro of the Society of American Baseball Research for much of the
information on the construction and configuration of nineteenth century ballparks contained in this article.
LEXISNEXIS SUMMARY:
... The sight of a fan injured by a foul ball is an unfortunate but regular feature of professional baseball games. ...
While there were earlier lawsuits that were resolved at the trial court level, the first appellate court opinion dealing with
a spectator injured by a foul ball at a professional baseball game was Crane v. Kansas City Baseball & Exhibition Co.,
decided in 1913 by the Kansas City division of the Missouri Court of Appeals. In Crane, the court upheld a lower court
dismissal of a lawsuit filed by a fan injured by a foul ball during a minor league baseball game in Kansas City, and, in
the process, articulated a conceptual framework for the resolution of ballpark operator liability cases which would be
followed for the rest of the twentieth century. ... In his complaint, Crane asserted that the ballpark owner had been
negligent in failing to screen in the entire grandstand and that this negligence was the proximate cause of his injury. ... )
The possibility of being struck by a foul ball was "one of the natural risks encountered by spectators of a professional
baseball game," but a spectator who sat in a protected seat "did not assume the risks resulting from such negligence. ...
TEXT:
[*485]
The sight of a fan injured by a foul ball is an unfortunate but regular feature of professional baseball games. Similarly, lawsuits by injured fans against the operators of ballparks have been a regular feature of litigation involving the
national pastime. n1 While the general legal rule that spectators are considered to have assumed the risk of injury from
foul balls has been reiterated over and over, injured plaintiffs have continued to sue in hope of establishing liability on
the part of the park owner. n2 Although the number of such lawsuits that culminated in published judicial reports is quite
large, it is somewhat surprising that the first cases to reach the appellate court level did not do so until the early 1910s,
nearly a half century after the beginnings of commercialized baseball. n3
[*486] While there were earlier lawsuits that were resolved at the trial court level, n4 the first appellate court
opinion dealing with a spectator injured by a foul ball at a professional baseball game was Crane v. Kansas City Baseball & Exhibition Co., n5 decided in 1913 by the Kansas City division of the Missouri Court of Appeals. In Crane, the
court upheld a lower court dismissal of a lawsuit filed by a fan injured by a foul ball during a minor league baseball
game in Kansas City, n6 and, in the process, articulated a conceptual framework for the resolution of ballpark operator
liability cases which would be followed for the rest of the twentieth century.
This article examines the reasons for the relatively late judicial resolution of the foul ball injury question. It also
explores the circumstances that brought this issue before the Missouri Court of Appeals in 1913, and the general legal
principles upon which the court drew in formulating its decision. Finally, it looks at the process by which the Crane
decision came to be accepted as the definitive statement of the rules applying to spectator injuries at baseball games.
Page 119
38 Tulsa L. Rev. 485, *
I. Spectator Injuries and the Early History of Baseball
Why it took so long for the issue of ballpark operator liability for spectator injuries to reach the appellate court level is
one of many perplexing "why" questions associated with the game of baseball. Whatever the answer, it was certainly
not that foul balls were a rare occurrence. In 1914, a Missouri court estimated that during a typical professional baseball
game and the batting practice that preceded it, approximately seventy balls were "fouled by the batters in every possible
direction." n7 However, it is true that the problem of foul balls was probably not as acute in the formative era of American baseball as it was after the mid-1880s. In their mid-nineteenth century form, the rules of baseball required the pitcher to deliver the ball in an under-handed fashion without bending his [*487] elbow. n8 As long as such a restriction on
pitching remained in place, skilled batters had little trouble hitting the ball squarely, and thus sharply hit foul balls infrequently entered the areas in which spectators where likely to be situated, especially the territory behind the home
plate area and along the foul lines. Such rules also guaranteed that offense would dominate over defense. In the 1860s,
single digit run totals were rare, and nine inning scores of more than one hundred runs were not unheard of. In 1867, the
Athletic Club of Philadelphia, probably the best team in the United States, scored more than fifty runs in twenty of its
forty-seven games, with a single game high of 118. n9 That same year, the National Club of Washington, D.C., broke the
century mark on three different occasions. n10 Even the Eckford Club of Brooklyn, whose record of 6-16-1 was the worst
of any of the nation's top teams, scored twenty or more runs in thirteen of its games. n11 Concern that batters were too
dominant prompted the adoption of a number of pitching rules in the 1860s and 1870s designed to allow pitchers to
throw the ball with greater speed.
The "stiff arm" restriction was abandoned in 1868, but scores remained quite high. n12 To compound the problem,
beginning in 1871, batters were permitted to call for a high or low pitch and if the pitcher failed to accommodate, a ball
was called. The balance began to change in 1872, when pitchers were permitted to bend their elbows, making it possible
to throw underhanded curve balls. In 1878, the pitcher was permitted to raise the ball as high as his waist before delivering it to the batter, and in 1883 the line was elevated to the pitcher's shoulder, making "side-arm" pitching legal for the
first time. The next year modern over-handed pitching was permitted. n13
Although a number of pitchers had been able to throw the ball underhanded with impressive velocity, there is no
question that the introduction of overhand pitching in the mid-1880s led to greatly increased pitching speed and with it
an increase in foul balls headed toward spectators. n14 Greater pitching speed also [*488] made catching a more precarious position, which led to the introduction of the catcher's mask (1870s) and the chest protector (1880s) in this same
era. n15 From the point of view of spectators, the area directly behind home plate became particularly dangerous with the
faster pace of pitching. The frequency of injuries suffered by those who continued to watch games from that vantage
point earned it the nickname the "slaughter pen." n16
The absence of reported cases also cannot be attributed to protective features of nineteenth and early twentieth century ballparks since there was little in the design of early baseball parks that offered protection against these types of
injuries. Even wire backstops were not a standard feature in parks before the 1880s. n17 Diagrams of fields from the
1870s show a "catcher's fence" approximately thirty feet behind home plate, but these wooden fences were designed
more for the containment of passed balls and wild pitches than they were for the protection of fans. n18 Spectator seating
areas were rudimentary at best, and early grandstands contained little in the way of protective features.
Concern for the safety of spectators seated behind the playing field - or at least concern that the increased number
of foul balls might drive away customers - eventually led most ballpark operators to screen in portions of their seating
areas. The first professional team to do this was apparently the Providence Grays of the National League who did so in
1879. n19 Other teams soon followed suit. In spite of the safety they provided, the new screens were not always well received. In Milwaukee, then a member of the minor league Northwestern League, a wire screen was erected in front of
the grandstand on June 25, 1884, but was removed seven days later because of fan complaints about the obstructed
view. n20 Nevertheless, by the late 1880s, it was commonplace for owners of baseball parks used by professional teams
to screen in the portion of the grandstand directly behind home plate. n21 However, other parts of the grandstand and all
bleacher seats remained unscreened and unprotected. It is also probably true that most injuries resulting from foul balls
in the nineteenth century were, as [*489] today, insufficiently serious to warrant a lawsuit. However, there is no reason to think that some of the injuries incurred before 1913 were not substantial. In 1888, Washingtonian Aaron Potts
claimed that his injuries stemming from being hit by a baseball at a major league game amounted to $ 5,000. n22 Moreover, there were several cases decided between 1914 and 1920 that featured significant injuries, and there was no significant difference in the equipment used to protect fans from injuries during this period that would explain an increase in
serious injuries over the earlier period. n23 It is possible that ballpark owners paid the medical expenses of injured fans,
Page 120
38 Tulsa L. Rev. 485, *
but given what we know about the business history of professional baseball, that seems unlikely. On the other hand,
cultural attitudes may have been at play, and baseball fans of the Gilded Age and Progressive Era may have felt reluctant to blame their injuries on the ballpark owner. Instead, they may have attributed their misfortune to either bad luck,
their own bad judgment, or fate. This would be consistent with the view of the late nineteenth century as an era of individualism and individual accountability, or as legal historian G. Edward White once put it, "an age entranced with the
idea that each man was equally capable of protecting himself against injury." n24
Of course, the most critical question regarding the paucity of foul ball cases was whether or not a spectator injured
by a foul ball had a right to sue the operator of the ballpark under any circumstances. Obviously, one explanation for
the lack of lawsuits could be a widespread understanding that there was no right to sue. Was it the conventional wisdom
before 1913 that a suit against the ballpark operator was doomed to fail? That is, of course, an extremely difficult question to answer since there were no previous cases or statutes directly on point. However, an examination of the relevant
legal principles in the late nineteenth and early twentieth centuries suggests that the issue of liability was at least a debatable proposition.
II. The Legal Duties of Ballpark Owners
In formal legal terms, the paying spectator at a professional baseball game was a licensee, which meant that he or she
was on the premises with the owner's permission. The traditional duty owed to a licensee by the landowner who "invited" him on to his property was only to protect the licensee from unforeseeable hazards incident to the condition of the
premises. Responsibility for ordinary risks incident to the condition of the premises was assumed by the [*490] licensee, and the landowner was not obligated to protect licensees against known hazards or unsafe conditions, or even
warn them of their existence. n25 If this were the controlling standard, it would be nearly impossible for a spectator to
recover against a ballpark operator since the possibility of a foul ball injury was not "unforeseeable" but simply an ordinary risk which would fall on the licensee.
However, by the 1870s, it was widely accepted that a landowner owed a greater duty to a licensee who was on the
premises to conduct business beneficial to both parties. In such circumstances, the licensee was known as an "invitee,"
or "business visitor." This modification of the law of licenses was usually traced to the 1866 English case of Indermaur
v. Dames, n26 where the court held that an owner was obligated to protect the business visitor against dangers of which
he (the proprietor) knew or should have known. n27 The "business visitor" rule of Indermaur was quickly embraced by
both American courts and treatise writers. It was endorsed by the Supreme Judicial Court of Massachusetts less than
two years after the English case was decided, and over the course of the next twenty years the English case was cited
with approval in at least twenty-six different judicial opinions by a variety of American courts, including the United
States Supreme Court. n28 In 1883, the Supreme Judicial Court of Massachusetts first applied the rule to a place of public
amusement when it held that a proprietor of a dance hall open to the ticket-buying public was obligated to maintain the
hall in a reasonably safe condition. n29 Both Judge Thomas Cooley and legal scholar Seymour Thompson endorsed the
application of the rule to such establishments in their highly influential tort treatises. n30 As Thompson put it: "The duties
thus imposed on the owners of business houses apply with special force to proprietors of public exhibitions, public-houses, and other establishments to which the public are invited to resort in large numbers." n31 Presumably, baseball
parks were included in this category.
[*491] By the end of the first decade of the twentieth century, the business visitor rule had been applied to a wide
variety of public amusements and exhibitions. n32 The 1901 edition of Thompson's treatise on the law of negligence described the proprietors of public exhibitions as having "a special duty imposed by the principles of the law to exercise
reasonable care in construction, maintenance and management, to the end of protecting the public so coming upon their
premises." n33 Reasonable care, according to Thompson, was "a degree of care proportioned to the danger incurred, and
to the number of persons who will be subjected to that danger." n34 Or, as the Illinois Supreme Court described it in
1895,
If an owner or occupier of land either directly or by implication induces persons to come upon his premises, he thereby
assumes an obligation that such premises are in a reasonably safe condition, so that the persons there by his invitation
shall not be injured by them, or in their use for the purpose for which the invitation was extended. n35
Under this definition of duty, an injured spectator could argue that a ballpark with unprotected seats was not in a safe
condition, particularly given the predictability of foul ball related injuries and their potential for serious harm. n36
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38 Tulsa L. Rev. 485, *
The business visitor rule seemed to suggest that a ballpark operator had a duty to protect his patrons from harm, but
there were problems in applying the rule to injuries from foul balls. First of all, the cases in which the business visitor
rule had been applied almost always involved defects in the premises or dangerous conditions of which the invitee was
unaware when he entered the property and which were not immediately apparent. This, of course, could not be said for
most potential plaintiffs in foul ball cases. Few who attended professional baseball games would have been unaware of
the frequency of foul balls or the damage that they could do. While a patron at a baseball game could maintain in good
faith that he had no reason to assume that the grandstand in which he was seated was [*492] anything but properly
constructed in regard to its ability to support the weight of the spectators, he could not claim that he assumed that an
unscreened grandstand would protect him from foul balls.
How patron knowledge of a defect or problem affected the duty of the proprietor under the business visitor rule had
been infrequently litigated, particularly in the context of places of public amusement and exhibition. However, one
could find language in judicial opinions that suggested that such knowledge excused the proprietor from liability. In
Carleton v. Franconia Iron & Steel Co., n37 the 1866 Massachusetts case mentioned above, future United States Supreme
Court Justice Horace Gray addressed this very question when he wrote:
The owner or occupant of land is liable in damages to those coming to it, using due care, at his invitation or inducement,
express or implied, on any business to be transacted with or permitted by him, for an injury occasioned by the unsafe
condition of the land or of the access to it, which is known to him and not to them, and which he has negligently suffered to exist and has given them no notice of. n38
Gray's opinion suggested a number of problems for an injured spectator trying to sue a ballpark operator for negligence. First, the language suggested that no further duty might lie if the invitee either knew of, or was warned about, the
dangerous situation. Moreover, his formulation of the rule suggested that the defenses of contributory negligence and
assumption of risk might be available to the proprietor even if it was found that he had breached the duty of care owed
to his business invitees. In the tort law of the late nineteenth and early twentieth centuries, contributory negligence by
the plaintiff operated as an absolute bar in actions for negligence. n39 (The one widely recognized exception - the doctrine of last clear chance - would be of no value here since it would be the spectator who had the last chance to avert the
accident.) If the plaintiff knew of the danger of foul balls and chose to sit in an unprotected seat, then he or she opened
himself to the charge that his or her own negligence - that is, his or her own failure to act in a reasonable fashion - had
contributed to the cause of his or her own injury.
Moreover, during the same period, the doctrine of assumption of risk became a universal principle of American tort
law. n40 It had long been recognized [*493] that a licensee on the land of another assumed responsibility for any risk
not covered by the landowner's duty, but the formal doctrine of assumption of risk meant that even in areas where the
landowner owed a duty of care, that duty could be obviated by the licensee's remaining on the premises after becoming
aware of the problem. Similarly, if the ticket buyer was aware that the defendant had negligently failed to place screens
in front of all the seats in the ballpark, then the ticket buyer had assumed the risk of injury by sitting there. To make
matters worse for the potential plaintiff, in 1908, the Michigan Supreme Court had used the example of the baseball fan
who watches a game from a position where he knows that he might be struck by a batted ball as an illustration of an
obvious example of the assumption of a risk. n41
To prevail over such defenses, the plaintiff would have to persuade a court that the landowner's duty was such that
a mere general awareness that the plaintiff might be injured was insufficient to relieve the landowner of the higher duty
owed to the business invitee. In spite of the power of the doctrine of assumption of risk, such limitations did exist. Certain types of businesses, like common carriers and innkeepers, could not avoid liability for failure to provide safe premises even if their patrons were aware of the business's negligence. In addition, it was frequently stated that when one
person owed a duty to another, "the person for whose protection the duty exists cannot be held to have assumed risks of
injury created solely by a negligent breach of such duty." n42 Moreover, if the landowner assured his or her customers
that the premises were safe, the invitee did not assume the risk that the premises were unsafe. n43 Finally, there was no
assumption of risk where the defendant left the plaintiff with no reasonable alternative. Thus, it had been held that a
tenant did not assume the risk of the landlord's negligence in maintaining the entrance to a building when there was no
other way in or out of the building, nor did a landowner assume the risk of defective highway when it was the only
available route away from his property. n44 If a court could be convinced that the spectator at a baseball game was in an
analogous situation, then liability might very will attach.
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38 Tulsa L. Rev. 485, *
III. Crane v. Kansas City Baseball & Exhibition Co.
It was against this doctrinal backdrop that S.J. Crane brought his suit against the Kansas City Baseball and Exhibition
Company. The defendant owned and operated the Kansas City Blues of the minor league American Association. The
Blues played their home games at Association Park, located at the intersection of [*494] 19th and Olive Streets in
Kansas City. n45 The game at which Crane was injured was apparently played in 1910. n46
Upon his arrival at the park, Crane paid fifty cents for a general admission ticket. (The other option was a twenty-five cent bleacher seat.) Since there were no reserved seats, Crane's ticket entitled him to sit in any unoccupied seat in
the 6000 to 7000 seat grandstand. n47 The grandstand was located behind home plate and extended in foul territory down
the third base line past third base and into the outfield. Bleachers then continued from the end of the grandstand to the
left field wall. There were apparently no seats located on the right field side of the park. n48 The portion of the grandstand
behind home plate and extending down the foul line to third base was protected by "intervening wire netting of very
loose mesh." n49 Crane could have taken a seat behind the wire netting but chose instead to sit in an unprotected seat in
the grandstand beyond third base. At some point during the game, Crane was struck by a foul ball. The nature of his
injuries were not described by the court, but they were apparently not too serious, as he requested only one hundred
dollars in damages. n50
Sometime after the game, Crane filed a civil action against the team in the Jackson County Circuit Court. In his
complaint, Crane asserted that the ballpark owner had been negligent in failing to screen in the entire grandstand and
that this negligence was the proximate cause of his injury. In response, the defendants issued a general denial of the
plaintiff's claim and further maintained that the plaintiff was guilty of contributory negligence and had assumed the risk
of his injuries. n51
[*495] Crane's case turned entirely on the question of the extent and nature of the duty owed by the defendant to
its patrons. Because there was no disagreement as to what had happened, the two parties submitted an agreed upon
statement of facts. Both stipulated that if the court found that these facts gave rise to a legally recognized cause of action, defendants were liable for one hundred dollars plus court costs. In this statement, Crane admitted that he was
knowledgeable about baseball and was aware of the possibility of an injury like the one he suffered, or, as the statement
put it: ""Baseball is our national game, and the rules governing it and the manner in which it is played and the risks and
dangers incident thereto are matters of common knowledge.'" n52 Circuit Court Judge W.O. Thomas refused to accept
Crane's argument that the defendants' duty included an obligation to screen in the entire grandstand. Instead, he dismissed Crane's complaint on the grounds that he was not entitled to recover under the facts as a matter of law. n53 Crane
then filed an appeal, which under Missouri law was heard by the Court of Appeals for western Missouri.
The ruling that Crane sought from the appellate court would have had dramatic consequences for the professional
baseball industry, since the rule he advocated would have required every ballpark owner to screen in the entire seating
area - something that was not done in any baseball park in the United States - or else be prepared to pay the medical
expenses and other costs of every fan who was struck by a ball that went into the stands. Implementing these changes
would be quite difficult. While grandstands could presumably be screened simply by extending the existing screen to
both ends of the structure, providing protection for bleacher seats would have required the construction of a large free
standing screen, which would basically convert the bleachers into a grandstand (and presumably lead to an increase in
ticket prices). Furthermore, until the mid-1930s, it was a common practice during sold out games to allow standing
room only fans to stand in a roped-off area in the outfield. n54 Obviously, the only way to protect such fans from injury
by fair balls as well as foul ones would be to terminate the practice altogether. More significantly, a screening requirement would almost certainly disappoint large numbers of baseball fans. Then, as now, the screened-in seats behind
home plate were not necessarily the most popular places to sit. In spite of the possibility of injury, many fans preferred
the unobstructed view of an unscreened seat, a fact that would be noted in the court's opinion. n55 If every seat in the
ballpark was behind a screen, attendance would more likely go down than up. n56
Finally, Crane's case presented no special circumstances that might allow the court to decide in his favor on a more
narrow basis. He was not a child; he was [*496] not elderly; he was not a woman who had been admitted to the park
free of charge on Ladies Day; he was not nearly blind or deaf; he was not an uneducated fan attending his first baseball
game; he had not been denied the opportunity to sit in a protected seat; he had not been directed to the wrong seat by an
usher; his injury was not the result of an unusual occurrence during the game; the ball that had struck him was the ball
in play during the game itself; and the ball had not curved in some improbable way - the very sorts of factors that would
characterize much of this litigation in future years. n57 Moreover, his injuries had not been very severe to begin with, and
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38 Tulsa L. Rev. 485, *
more than two years had passed between the time of the injury and the appeal, factors that made Crane an unlikely candidate for special sympathy from the court.
Given the above considerations, it is hardly surprising that the three-judge Court of Appeals unanimously affirmed
the decision of the circuit court. n58 In a decision dated February 17, 1913, Judge J.M. Johnson had little trouble seeing
this case as a classic application of the principles of assumption of risk and contributory negligence. Citing the earlier
dicta of the Michigan Supreme Court that spectators at baseball games who voluntarily chose to stand where they might
be hit by a batted ball assume the risk of injury, Johnson asserted that Crane had "assumed the ordinary risks of such
position" when he chose to sit in an unprotected seat. n59 And if, for any reason, he could not be said to have assumed the
risk, he was clearly guilty of contributory negligence because his decision to sit in a seat that he knew was less safe than
one behind the screen was unreasonable. As Johnson put it, "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. That is a fundamental rule of the law of negligence." n60 Johnson apparently viewed this assertion as so well established that he cited no authority (other than a passing reference to the previously mentioned Michigan case) for his conclusion.
More interesting than the dismissal of Crane's appeal on assumption of risk and contributory negligence grounds,
however, was the court's insistence that it was not saying that the ballpark operator owed no duty of care to his customers or that this duty could always be abrogated by spectators assuming the risk of injury. After summarizing the facts of
the case, Judge Johnson began his analysis by stating what he viewed as the nature of the ballpark owner's duty to his
customers, which was essentially a paraphrase of the business visitor rule: "Defendants 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 [*497] reasonable care, i.e., care commensurate to the circumstances of the situation, to protect their patrons
against injury." n61
While "care commensurate to the circumstances of the situation" did not require ballpark owners to place a screen
in front of every seat, it did, the court concluded, require that some protected seats be available at every game for those
fans who wanted them. n62 In other words, the risk of injury from foul balls, particularly in the area directly behind home
plate, required the club to make protected seats available for those who desired them. This responsibility could not be
shirked, and it did not matter if the patron either knew of the danger before attending or was warned of it upon entering
the park. If the spectator who asked for a protected seat was denied one, his or her decision to remain at the park anyway would not constitute an assumption of risk, and if they were injured by a ball batted or thrown in the stands, the
operator would be liable.
However, if protected seats were offered, Judge Johnson's opinion suggested that the duty of care had been "fully
performed." n63 There was no suggestion that the issue of whether the operator had a duty to screen any particular seat
would have been a proper question for the jury, had Crane decided to request a jury trial. n64 Nor was there any indication that the operator had a duty to warn patrons of the danger of sitting in unprotected seats (although this issue would
arise in later cases in other jurisdictions). The decision in Crane announced the existence of a limited but unwaiveable
duty, and at the same time offered ballpark owners clear directions as to how to satisfy their obligations. In many ways,
it was a decidedly practical solution and one that accepted the current practices of the industry as reasonable. Park owners were not strictly liable for injuries that occurred on the premises, but at the same time they could not relieve themselves [*498] of all liability by relying on their patrons' prior knowledge of the danger posed by foul balls.
IV. Refining Crane: Edling v. Kansas City Baseball & Exhibition Co.
Judge Johnson and the Crane court had the opportunity to elaborate on the rule pertaining to the duty of care owed to
spectators less than a year later when a second ballpark injury case made its way onto the court's docket. In Edling v.
Kansas City Baseball & Exhibition Co., n65 the court was faced with a situation in which a fan had taken a protected seat
but was nevertheless injured by a foul ball. Charles A. Edling had been struck in the face by a foul ball at a Kansas City
Blues game on May 31, 1911. Like Crane, he had paid fifty cents for a grandstand seat, but unlike Crane he had taken a
seat behind the screen. In fact, Edling had chosen to sit directly behind home plate, so that he could see the pitcher
"curve the ball." n66 Edling's seat was approximately halfway up in the grandstand, a location that should have provided
him complete protection from foul balls. Nevertheless, during the game, a foul ball passed through the screen, striking
Edling in the face, breaking his nose, and injuring one of his eyes. n67 Edling later testified that he was watching the
game at the time the incident occurred, but had lost track of the ball once it hit the bat. Thus, he testified, he was not
aware that it had passed through the screen until it hit his face. n68
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38 Tulsa L. Rev. 485, *
The defendant demurred to the evidence, arguing that Edling had assumed the risk of injury by entering the ballpark and that he was contributorily negligent as a matter of law. The defendants' counsel, the Kansas City law firm of
Hadley, Cooper & Neel, had represented the defendant in Crane, and the lawyers clearly attempted to rely on assumption of risk/contributory negligence aspects of the Crane decision. n69 In doing so, they advanced a number of arguments,
including the claim that their client's duty had been satisfied by providing screened seats and that the defendant was not
responsible for balls that might pass through the screen. (In this regard, they interpreted the "duty" portion of Crane
quite narrowly.) They also insisted that Edling's failure to make an effort to catch or at least dodge the foul ball constituted contributory negligence as a matter of law. n70
Trial Judge Joseph A. Guthrie rejected the defendant's motion for summary judgment, finding that the facts in this
case created a legal question different from that involved in Crane. It appears that Guthrie was particularly dismissive of
the argument that Edling had been negligent in failing to avoid the ball once it passed through the screen. Guthrie probably agreed with the statement of the plaintiff's [*499] counsel that "if the Kansas City Blues had kept their eyes on
the ball with the accuracy defendant says plaintiff should have displayed, they would have attained a higher place in the
race for the pennant." n71 Consequently, Guthrie submitted the question of the defendant's negligence to the jury on the
issue of whether the team had exercised reasonable care in the maintenance of the screen. n72
At the trial, the officers and employees of the team testified that the fence was well-maintained, that consideration
for the fans' view of the game required that relatively thin wire be used for the screen, and that the passage of the ball
through the screen was a freak occurrence which could not have been anticipated. n73 Edling's evidence was in sharp
contrast, portraying the team as careless in its maintenance of the screen and the screen itself as "old, worn, and defective" and containing several holes, including one almost a square foot in area (through which the ball that struck Edling
had passed). n74 The jury clearly believed Edling's witnesses and returned a verdict of $ 3,500. n75
On appeal, the Court of Appeals had little trouble upholding the trial court verdict under the standard it had set
forth in Crane. In another opinion written by Judge Johnson, the Edling court emphasized that its Crane holding had
established that the park owner's duty to his patrons required the provision of ""seats protected by screening from wildly
thrown or foul balls for the use of patrons who desired such protection.'" n76 Now the court elaborated on what that duty
entailed and in doing so invoked principles of contract law as well as tort law. When an operator addressed this duty by
screening off part of the grandstand, Johnson explained, he "impliedly assured spectators who paid for admission to the
grand stand that seats behind the screen were reasonably protected" n77 and that the operator had exercised "reasonable
care to keep the screen free from defects." n78 (In other words, the "contract" between the spectator and the park owner
contained implicit terms guaranteeing that the screen would ordinarily protect them from the possibility of injury.) The
possibility of being struck by a foul ball was "one of the natural risks encountered by spectators of a professional baseball game," n79 but a spectator who sat in a protected seat "did not assume the risks resulting from such negligence." n80
Although the plaintiff might have been guilty of contributory negligence if he had known about the hole in the fence
and had declined to move, Edling's testimony was that he had not noticed the [*500] defective feature of the screen
until after his injury. Consequently, the court found that the issues of the defendant's negligence and the plaintiff's attentiveness were properly questions for the jury, and if the jury had found that it had been negligent, then nothing pertaining to Edling's conduct relieved it of liability. n81 In other words, while not obligated to screen every seat in the park, the
team was obligated not only to provide protected seats for those fans who desired them, but also to maintain those seats
in a reasonable manner.
V. The Legacy of Crane and Edling
Although the Kansas City branch of the Missouri Court of Appeals was hardly one of the most prestigious courts in the
United States, its focus on the qualified duty of the ballpark operator has governed the way in which spectator injury
issues have been treated down to the present day. Less than five months after the decision in Crane, and before the decision in Edling, the Minnesota Supreme Court handed down a decision involving a similar lawsuit by a spectator against
the Minneapolis club of the American Association. In Wells v. Minneapolis Baseball & Athletic Association, n82 Minnesota's highest court borrowed liberally from the decision in Crane to overturn a jury verdict in a case involving a female spectator, Echo L. Wells, who had apparently come to the park as part of a ladies' day promotion. Large portions
of the Crane opinion were quoted verbatim, and the court accepted the Missouri court's formulation that the operator of
the ballpark had a duty of reasonable care upon which spectators could rely. n83 However, the Wells court held that the
duty did not extend to an obligation to screen in the entire park or to absolutely guarantee the safety of spectators. n84
In 1919, the Supreme Court of Washington held that a baseball fan who chose to sit in an unscreened rather than a
screened seat was barred, as a matter of law, from suing the operator of the ballpark for negligence when struck by a
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38 Tulsa L. Rev. 485, *
foul ball. n85 In doing so, the court reversed an earlier decision. n86 The issue was whether the plaintiff stated a cause of
action in arguing that the ballpark operator was negligent in deciding which parts of the park should be screened. The
court, citing Crane and Wells, held that he could not. n87 Having provided a screened in section of the park, the operator
had satisfied his responsibility, and by choosing to sit elsewhere the plaintiff now bore the responsibility for his injury.
n88
In the next two [*501] decades, courts in a variety of other jurisdictions followed suit and adopted the rule in
Crane. n89 Moreover, even though the issue was repeatedly raised in Missouri courts, there was no movement away from
the decisions of 1913 and 1914. n90
By the 1930s, Crane was widely recognized as a leading case in the law of landowner liability generally, as well as
the principal case regarding the liability of the operators of sporting arenas and stadiums. It was the only baseball case
mentioned in Chapter 7, Conduct Required to Prevent Risk of Harm-Affirmative Obligations, of Harper's influential
1933 treatise on torts, n91 as well as the only such case cited in the Business Visitors section in the first edition of Prosser
on Torts. n92 It was cited approvingly in at least thirty-seven subsequent judicial opinions, many of which involved sports
or activities other than baseball. n93 While neither Crane nor Edling has been cited in a judicial opinion in recent years,
the principle for which they stand has not been overruled. n94 Rather, the principle for which the cases stand has been
recited so many times in subsequent judicial opinions, courts and treatise writers have been satisfied to cite sources of
more recent vintage rather than trace the principle back to its origins. n95
While the names S.J. Crane, Judge J.M. Johnson, and Charles Edling appear in none of the standard histories of
professional baseball, their contribution to the development of the legal framework of professional spectator sports was
of great significance. Even if the rule adopted in Crane only reasserted the conventional wisdom on issues of liability, it
was still the first clear judicial expression of this point of view, and every subsequent opinion was written in response to
Crane. At [*502] least in the annuals of the legal history of American sports, the participants in Crane v. Kansas City
Baseball & Exhibition Co. deserve far greater recognition than they have received.
Legal Topics:
For related research and practice materials, see the following legal topics:
TortsPremises Liability & PropertyGeneral Premises LiabilityDuties of CareDuty on PremisesInviteesBusiness InviteesTortsPremises Liability & PropertyGeneral Premises LiabilityDuties of CareDuty on PremisesLicenseesTortsPremises Liability & PropertyGeneral Premises LiabilityPremisesRecreational FacilitiesSports Facilities
FOOTNOTES:
n1. For an exhaustive list of cases involving spectator injuries prior to 1985, see John C. Weistart & Cym H. Lowell, The Law of Sports
951-65. (Michie Co. 1979 & Supp. 1985). For more recent cases, see Gil Fried & Robin Ammon, Baseball Spectators' Assumption of Risk:
Is It "Fair" or "Foul"?, 13 Marq. Sports L. Rev. 39 (2002). See James L. Rigelhaupt, Jr., Annotation: Liability to Spectator at Baseball Game
Who Is Hit by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979); Joshua E. Kastenberg, A Three Dimensional
Model of Stadium Owner Liability in Spectator Injury Cases, 7 Marq. Sports L.J. 187 (1996).
n2. For the general rule and the limited number of exceptions that have been recognized, see Ray Yasser et al., Sports Law: Cases and Materials 724-26 (4th ed., Anderson Publg. Co. 2000); Michael J. Cozzillio & Mark S. Levinstein, Sports Law: Cases and Materials 906 (Carolina Academic Press 1997); and the sources cited in supra note 1.
n3. " Commercialized" baseball refers to the practice of charging admission to spectators who attend baseball games. Commercialization in
baseball began in 1858 in New York City when an admission fee was charged for those who witnessed an all-star game featuring the best
players in New York and Brooklyn. However, the real era of commercialization began in 1862 when entrepreneur William H. Cammeyer of
Brooklyn began to charge patrons to attend games at the Union Grounds, the first entirely enclosed baseball field in American history. On
the beginning of commercialization in baseball and Cammeyer, see Melvin L. Adelman, A Sporting Time: New York City and the Rise of
Modern Athletics, 1820-70, at 148-54 (U. Ill. Press 1986); Harold Seymour, Baseball: The Early Years 48-51 (Oxford U. Press 1960);
George B. Kirsch, The Creation of American Team Sports: Baseball and Cricket, 1838-72, at 234-37 (U. Ill. Press 1989). Commercialization
is thus distinguished from professionalization, which refers to the use of players who are paid for their participation. Commercialization
preceded professionalization in baseball, but not by very much. The first openly professional baseball team, the famous Red Stocking Club
of Cincinnati, began play with a full roster of paid players in 1869. Seymour, supra, at 56-58.
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38 Tulsa L. Rev. 485, *
n4. One such case involved Washingtonian Aaron Harvey Potts, who filed suit against the Washington Statesmen of the National League in
April of 1888. According to a newspaper account, Potts had been injured on April 11 of the previous year. His complaint alleged that shortly
after he entered baseball grounds controlled by the defendant, he was "suddenly, forcibly, and violently assaulted by the defendant by being
struck across the bridge of his nose by a certain base-ball recklessly, carelessly, and negligently thrown, tossed, pitched, or batted ... ." Struck
by a Base-Ball, Washington Evening Star 6 (Apr. 10, 1888). Because of the broad language of the complaint, it is not clear whether Potts
was struck by a thrown or batted ball. Unfortunately, nothing else is known about this case except that it did not result in a published judicial
opinion. A search of the Lexis database reveals no cases decided in Maryland, Virginia, or the District of Columbia between 1888 and 1900
involving a party named Aaron Potts, Aaron Harvey Potts, or A. H. Potts.
n5. 153 S.W. 1076 (Mo. App. 1913). Two slightly earlier appellate cases had involved injuries resulting from baseballs, but neither had
occurred at a professional baseball game. Moreover, in each of these cases, the injured party had not been watching the game from which the
ball had emanated. Williams v. Dean, 111 N.W. 931 (Iowa 1907) (patron injured at agricultural fair while watching horse a race held simultaneously with a baseball game); Blakeley v. White Star Line, 118 N.W. 482 (Mich. 1908) (patron injured at dance at summer resort by
ball thrown by practicing baseball players).
n6. Crane, 153 S.W. at 1078.
n7. Edling v. Kansas City Baseball & Exhibition Co., 168 S.W. 908, 909 (Mo. App. 1914).
n8. The discussion of the changing rules regarding the pitcher's delivery of the baseball is based upon David Nemec, The Rules of Baseball:
An Anecdotal Look at the Rules of Baseball and How They Came to Be 35-36, 151-54 (Lyons & Burford 1994).
n9. Marshall D. Wright, The National Association of Base Ball Players, 1857-1870, at 143 (McFarland & Co., Inc. 2000).
n10. Id. at 144.
n11. Id. at 168.
n12. In 1869, the top teams continued to score runs in large quantities. The Red Stockings of Cincinnati, the Athletic Club of Philadelphia,
the Union Club of tiny Lansingburgh, New York, and the Forest City Club of Rockford, Illinois, all scored more than one hundred runs in a
single game against top competition. Id. at 242-55.
n13. See Nemec, supra n. 8.
n14. While there are obviously no statistics regarding total number of foul balls, the effect of the pitching rule changes in the 1880s can be
seen in an increased number of strike outs. In 1882, when underhand pitching was still required, the average number of strikeout for both
teams in a National League game was 3.2. In 1883, with sidearm pitching, it was 3.6. In 1884, with no restrictions on pitching motion, it was
4.7. These calculations are based on games played and strikeout data in STATS All-Time Baseball Sourcebook 24-32 (Bill James et al. eds.,
STATS Publg. 1998). The number of allowed strikes remained at three during all three seasons, although it was later briefly increased to
four to eliminate the pitcher's new advantage.
n15. Bill James, The New Bill James Historical Baseball Abstract 16, 43 (Free Press 2001).
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38 Tulsa L. Rev. 485, *
n16. David Nemec, The Great Encyclopedia of 19th-Century Major League Baseball 125 (Donald I. Fine Books 1997).
n17. Shortly before the opening of Detroit's Recreation Park in 1879, the Detroit Post and Tribune informed its readers that "It is intended
to put up a wire screen behind the catcher instead of the unsightly boards generally used." Det. Post & Trib. (Apr. 28, 1879).
n18. See Spalding's Official Base Ball Guide for 1878, at 3 (A.G. Spalding & Lewis Meacham eds., A.G. Spalding & Bro. 1878). For even
earlier references to backstops, see N.Y. Clipper (Feb. 19, 1870) (referring to the new grounds of the Washington, D.C. Olympics) and the
Cincinnati Commercial (May 21, 1870) (quoting a story from the Chicago Tribune describing the park used by the Atlantic Club of New
Orleans).
n19. Nemec, supra n. 16, at 125. Nemec's book also contains a reproduction of a photograph of Messer Park which clearly illustrates where
the screened part of the park was located. Id. For a further discussion of the Messer Park screen, see Frederick Ivor-Campbell, Editor's
Notes, Nineteenth Century Notes (Summer/Fall 1995).
n20. Milwaukee Daily J. 1 (July 3, 1884). The park, the Wright Street Grounds, had opened on May 1, 1884. Philip J. Lowery, Green Cathedrals 177 (Addison-Wesley Publg. 1992).
n21. For a photograph of the partially screened grandstand used in the ballpark in Wheeling, West Virginia, in 1887, see Baseball
<http://wheeling.weirton.lib.wv.us/events/sports/bball04.htm> (accessed Feb. 16, 2003). Wheeling played in the minor league Ohio State
League that year.
n22. See supra n. 4.
n23. Wells v. Minneapolis Baseball & Athletic Assn., 142 N.W. 706 (Minn. 1913); Edling, 168 S.W. 908; Kavafian v. Seattle Baseball
Club Assn., 181 P. 679 (Wash. 1919). On the other hand, it is likely that a number of changes in the early 1920s - the introduction of a more
resilient baseball, the dramatic increase in the number of new baseballs used in each game, and the abolition of the spitball and other pitches
where the pitcher altered the surface of the ball - led to an increase in sharply hit foul balls, just as they led to an increase in home runs.
However, the incidents in these cases all occurred during the so-called "dead ball" era. See James, supra n. 15, at 120-22; Nemec, supra n. 8,
at 5.
n24. G. Edward White, Tort Law in America: An Intellectual History 41 (Oxford U. Press 1980).
n25. William L. Prosser, Handbook of the Law of Torts 626 (West Publg. Co. 1941) (citing Francis H. Bohlen, The Duty of a Landowner
Towards Those Entering His Premises of Their Own Right, 69 U. Pa. L. Rev. 142, 237, 340 (1921)). For judicial endorsement of this principle in the nineteenth century, see Brown v. S. Kennebec Agric. Socy., 47 Me. 275 (1859); Bennett v. Louisville & N.R. Co., 102 U.S. 577
(1880); and Low v. Grand Trunk R. Co., 72 Me. 313 (1881).
n26. 1 L.R.-C.P. 274, aff'd, 2 L.R.-C.P. 311 (Ct. of Exchequer Chamber 1866).
n27. See Fowler Vincent Harper, A Treatise on the Law of Torts: A Preliminary Treatise on Civil Liability for Harms to Legally Protected
Interest 226 (Bobbs-Merrill Co. Publishers 1933).
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38 Tulsa L. Rev. 485, *
n28. Carleton v. Franconia Iron & Steel Co., 99 Mass. 216 (1868). A Lexis search of all cases prior to 1889 revealed twenty-six citations to
Indermaur v. Dames. The United States Supreme Court case was Bennett, 102 U.S. 577.
n29. Currier v. Boston Music Hall Assn., 135 Mass. 414 (1883).
n30. Thomas H. Cooley, A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract 605 (Callaghan & Co. 1880);
Thomas H. Cooley, A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract 718-19 (2d ed., Callaghan & Co.
1888); Seymour D. Thompson, The Law of Negligence in Relations Not Resting in Contract vol. 1, at 307-11 (Bancroft-Whitney Co. 1886).
n31. Thompson, supra n. 30, at 311.
n32. See, for example, Dunn v. Brown County Agric. Socy., 18 N.E. 496 (Ohio 1888) (agricultural fairs); Boyce v. Union P. Ry. Co., 31 P.
450 (Utah 1892) (bathing beaches); Dickson v. Waldron, 34 N.E. 506 (Ind. 1893) (theaters); Brotherton v. Manhattan Beach Improvement
Co., 67 N.W. 479 (Neb. 1896) (beaches); Thompson v. Lowell, Lawrence & Haverhill St.-Ry. Co., 49 N.E. 913 (Mass. 1898) (shooting exhibitions); Mastad v. Swedish Brethren, 85 N.W. 913 (Minn. 1901) (public picnic for Swedish Americans); Curran v. Olson, 92 N.W. 1124
(Minn. 1903) (restaurants and saloons); Blakeley, 118 N.W. 482 (resort which included a baseball field); Scott v. U. of Mich. Athletic Assn.,
116 N.W. 624 (1908) (college football park). For a complete listing of such cases decided prior to 1913, see Annotation: Duty and Liability
of Owner or Keeper of Place of Amusement Respecting Injuries to Patrons, 22 A.L.R. 610 (1923).
n33. Seymour D. Thompson, Commentaries on the Law of Negligence in All Relations vol. 1, at 912 (Bowen-Merrill Co. 1901).
n34. Id. at 913.
n35. Hart v. Washington Park Club, 41 N.E. 620, 620-21 (Ill. 1895) (citations and quotation marks omitted).
n36. A paying spectator at a sporting or entertainment event arguably had an even stronger argument for the application of a higher standard of care than a patron in a commercial establishment or a patron of a public fair or other event that did not charge admission to the
grounds. By purchasing a ticket, the former had a contractual relationship with the landowner prior to entry, and it could be argued that a
reasonably safe place to watch the event was an implied term of the contract. For one judicial effort to link the duty of care directly to the
contract between the landowner and the ticket purchaser, see the 1908 case, Scott v. U. of Mich. Athletic Assn., 116 N.W. 624.
n37. 99 Mass. 216.
n38. Id. at 217 (emphasis added).
n39. See White, supra n. 24, at 45-46.
n40. Traditionally, the concept of assumption of risk had been limited to the master-servant relationship which would have made it unavailable for a proprietor to assert in a dispute with a customer. Francis Hilliard, The Law of Torts or Private Wrongs vol. 2, at 467 (3rd ed.,
Little, Brown & Co. 1866); Thomas G. Shearman and Amasa A. Redfield, A Treatise on the Law of Negligence 121 (2d ed., Baker, Voorhis
& Co. 1870); Seymour D. Thompson, The Law of Negligence in Relations Not Resting in Contract vol. 2, at 1147-48 (Bancroft-Whitney
Co. 1886); Joel Prentiss Bishop, Commentaries on the Non-Contract Law and Especially as to Common Affairs Not of Contract or the Every-Day Rights and Torts 311-12 (T.H. Flood & Co. 1889). However, the late nineteenth and early twentieth centuries saw the expansion of
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38 Tulsa L. Rev. 485, *
the principle from a rule of master-servant law to a general limitation on liability. See e.g. Francis Wharton, A Treatise on the Law of Negligence 178-80 (2d ed., Kay & Brother 1878); Charles Warren, Volenti Non Fit Injuria in Actions of Negligence, 8 Harv. L. Rev. 457
(1895); Francis Bohlen, Voluntary Assumption of Risk, 20 Harv. L. Rev. 14, 91 (1906). For the history of the development of the assumption of risk principle, see White, supra n. 24, at 41-45.
n41. Blakeley, 118 N.W. 482.
n42. Edling, 168 S.W. at 910.
n43. See, for example, McKee v. Tourtellotte, 44 N.E. 1071 (Mass. 1896); Brown v. Lennane, 118 N.W. 581 (Mich. 1908); Manks v.
Moore, 122 N.W. 5 (Minn. 1909).
n44. Looney v. McLean, 129 Mass. 33 (1880) and Dollard v. Roberts, 29 N.E. 104 (N.Y. 1891) (landlord-tenant example); City of Altoona
v. Lotz, 7 A. 240 (Pa. 1886) and Pomeroy v. Inhabitants of Westfield, 28 N.E. 899 (Mass. 1891) (highway example). All of the examples in
this paragraph are suggested by Prosser, supra n. 25, at 388-91, 389-90 nn. 91, 92.
n45. Association Park was the home of the Kansas City team in the American Association from the time of its construction in 1903 until
1922. The park burned to the ground September 22, 1912, but was rebuilt in time for the next season. See Unions to Royals: The Story of
Professional Baseball in Kansas City 25, 48-49 (Lloyd Johnson et al. eds., McFarland & Co., Inc. 1996). Additional information above the
configuration and seating capacity of Association Park is contained in Edling, 168 S.W. 908, which was decided the following year. The
Kansas City Baseball & Exhibition Company was controlled by George "White Wings" Tebeau, a Missouri native and a former professional
baseball player who played in the major leagues from 1887 to 1895. See Unions to Royals, supra, at 49; Nemec, supra n. 16, at 739. Kansas
City was a charter member of the American Association, which was organized in 1902 and was widely recognized as one of the most advanced minor leagues.
n46. Because of the paucity of details in the court's opinion, we now do not know the precise date of Crane's injury. However, another
spectator injury case decided the following year by the same court involved an incident that occurred in the same ballpark on May 31, 1911.
Edling, 168 S.W. 908. The events in Crane almost certainly preceded those in Edling, particularly since both were tried by the same circuit
court. Id.; Crane, 153 S.W. 1076. In 1910, the Kansas City Blues compiled a winning record of 85-81, but still finished fifth in the
eight-team league. For the 1910 Kansas City Blues, see Marshall D. Wright, The American Association: Year-by-Year Statistics for the
Baseball Minor League, 1902-1952, at 51-52 (McFarland & Co., Inc. 1997).
n47. Although the Kansas City Blues finished second in attendance in the American Association in 1910, their per game attendance was
only about 2300 per game. Consequently, during any typical game there were many seats from which a fan like Crane could choose. American Association attendance data can be found in The Encyclopedia of Minor League Baseball 168 (Lloyd Johnson & Miles Wolff eds., 2d
ed., Baseball Am., Inc. 1997).
n48. The configuration of Association Park is described in Crane, 153 S.W. at 1077.
n49. Id. at 303. The wire was apparently of the type known as "chicken netting" or "chicken meshing." Edling, 168 S.W. at 909.
n50. Crane, 153 S.W. at 1076.
n51. Id. at 1077.
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38 Tulsa L. Rev. 485, *
n52. Id.
n53. Id. at 1076, 1078.
n54. James, supra n. 15, at 28.
n55. Crane, 153 S.W. at 1077-78.
n56. For a discussion of this phenomenon by a noted legal scholar of the 1940s, see Wex S. Malone, Contributory Negligence and the
Landowner Cases, 29 Minn. L. Rev. 61, 75-80 (1945).
n57. Such factors appear in many of the cases cited in Weistart & Lowell, supra n. 1, at 952-53, and Fried & Ammon, supra n. 1.
n58. The court was composed of Presiding Judge James Ellison and Associate Judges J.M. Johnson and Francis H. Trimble. Crane, 153
S.W. 1076; The Southwestern Reporter vol. 153, at v (West 1913).
n59. Crane, 153 S.W. at 1077-78. The case cited was Blakeley, 118 N.W. 482.
n60. Crane, 153 S.W. at 1078.
n61. Id. at 1077.
n62. Id. In support of this legal proposition, Judge Johnson cited only two cases and no secondary authorities. Id. The two cases were both
recent decisions of the Missouri Appellate Court, and neither of them were discussed in the opinion. King v. Ringling, 130 S.W. 482 (Mo.
App. 1910), was a Johnson opinion which dealt with the liability of the Ringling Brothers Circus for injuries suffered by patrons trying to
escape when a fierce storm damaged the tent in which a circus performance was taking place. In King, the court found that the circus had
breached no duty owed to its customers, given the unusual and unforeseeable nature of the storm. Id. at 485. The second case, Murrell v.
Smith, 133 S.W. 76 (Mo. App. 1910), decided by a different division of the Court of Appeals, involved a stage used by performers at a street
fair. A young boy playing underneath the stage was killed when the stage collapsed under the weight of a group of patrons who had climbed
on to the stage. Id. In Murrell, the court upheld the jury verdict for the child's parents, finding sufficient evidence in the record that the defendants had breached a duty of care. Id. at 89. Read together, the cases suggested that the duty of the operator extended to maintaining the
premises in a reasonable fashion (Murrell) but did not require him to take steps to protect against every possible injury (King).
n63. Crane, 153 S.W. at 1077.
n64. Judge Johnson did not specifically state that the protected seats had to be the seats behind home plate, but the high risk of injury there
probably made it axiomatic that they would be the screened seats. This was, in fact, the universal practice. Johnson also realized that a more
complicated issue of duty would arise if a patron sought to sit in a protected seat after all of those seats were occupied. Without specifically
deciding this question, Johnson clearly hinted that liability was likely to attach in such a case. Id. One academic commentator later argued
that the logic of the Crane opinion created an absolute duty to place screens behind home place and as far up the foul lines toward first and
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38 Tulsa L. Rev. 485, *
third base was necessary to protect those who be in greatest danger from foul balls. E.R.S., Student Author, Negligence - Theaters and
Shows - Assumption of Risk - Spectators at a Baseball Game, 17 Mich. L. Rev. 594, 596 (1919).
n65. 168 S.W. 908 (Mo. App. 1914). There was no change in the composition of the Kansas City branch of the Missouri Court of Appeals
between Crane and Edling. See The Southwestern Reporter vol. 168, at v (West 1914).
n66. Edling, 168 S.W. at 909.
n67. Id.
n68. Id.
n69. In Crane, the team had been represented by Hadley, Cooper, Neel & Wilson. Crane, 153 S.W. 1076. All but Wilson are listed as
counsel in the Edling case. Edling, 168 S.W. 908.
n70. Edling, 168 S.W. at 910.
n71. Edling, 168 S.W. at 910. In 1913, when the trial court opinion was handed down, the Blues had finished the season tied for sixth in the
eight team league. Wright, supra n. 46, at 70. In 1914, when the Court of Appeals handed down its decision, they were on their way to another sixth place finish. Id. at 76. In 1911 and 1912, the team had finished second and fourth, respectively. Id. at 56, 63.
n72. Edling, 168 S.W. at 910.
n73. See id. at 909.
n74. Id.
n75. Id.
n76. Id. (citing Crane, 153 S.W. 1076).
n77. Edling, 168 S.W. at 909-10.
n78. Id. at 910.
n79. Id. at 909.
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38 Tulsa L. Rev. 485, *
n80. Id. at 910.
n81. Id. at 910.
n82. 142 N.W. 706 (Minn. 1913).
n83. Id. at 708.
n84. Id. at 709.
n85. Kavafian, 181 P. 679.
n86. The earlier case was Kavafian v. Seattle Baseball Club Assn., 177 P. 776 (Wash. 1919). In the earlier decision, the court had ruled that
the issue of the plaintiff's assumption of risk or contributory negligence could go to the jury since the plaintiff claimed that defendant's original plans for the ballpark had indicated that a screen would be in place in front of the plaintiff's actual seat.
n87. Kavaian, 181 P. at 679.
n88. Id.
n89. Cincinnati Baseball Club Co. v. Eno, 147 N.E. 86 (Ohio 1925); Curtis v. Portland Baseball Club, 279 P. 277 (Or. 1929); Lorino v.
New Orleans Baseball & Amusement Co., 133 So. 408 (La. App. 1931); Brisson v. Minneapolis Baseball & Athletic Assn., 240 N.W. 903
(Minn. 1932); Quinn v. Recreation Park Assn., 46 P.2d 144 (Cal. 1935); Blackhall v. Albany Baseball & Amusement Co., 285 N.Y.S. 695
(N.Y. Co. Ct. 1936); Ratcliff v. San Diego Baseball Club P. Coast League, 81 P.2d 625 (Cal. App. 1938); Adonnino v. Village of Mt. Morris, 12 N.Y.S.2d 658 (N.Y. Sup. 1939); Cates v. Cincinnati Exhibition Co., 1 S.E.2d 131 (N.C. 1939); Ivory v. Cincinnati Baseball Club Co.,
24 N.E.2d 837 (Ohio App. 1939).
n90. The issue of ballpark operator liability reached appellate courts more frequently in Missouri than in any other state in the years before
1950. In addition to Crane and Edling, see Grimes v. Am. League Baseball Co., 78 S.W.2d 520 (Mo. App. 1935); Olds v. St. Louis Natl.
Baseball Club, 104 S.W.2d 746 (Mo. App. 1937); Olds v. St. Louis Natl. Baseball Club, 119 S.W.2d 1000 (Mo. App. 1938); Brummerhoff
v. St. Louis Natl. Baseball Club, 149 S.W.2d 382 (Mo. App. 1941); Hudson v. Kansas City Baseball Club, 164 S.W.2d 318 (Mo. 1942);
Anderson v. Kansas City Baseball Club, 231 S.W.2d 170 (Mo. 1950).
n91. Harper, supra n. 27, at 196-250.
n92. Prosser, supra n. 25, at 635-48.
n93. See e.g. Sellmer v. Ringling, 62 Pa.Super. 410 (1915); Berberet v. Elec. Park Amuse. Co., 3 S.W.2d 1025 (Mo. 1928); Morrison v.
Union Park Assn., 149 A. 804 (Me. 1930); Myers v. Kansas City Junior Orpheum Co., 73 S.W.2d 313 (Mo. App. 1934); Hammel v. Madi-
Page 133
38 Tulsa L. Rev. 485, *
son Square Garden Corp., 279 N.Y.S. 815 (N.Y. Sup. 1935); Ingersoll v. Onondaga Hockey Club, Inc., 281 N.Y.S. 505 (N.Y. App. Div.
1935); Campion v. Chi. Landscape Co., 14 N.E.2d 879 (Ill. App. 1st Dist. 1938).
n94. Two relatively recent cases which cited directly to Crane are Akins v. Glen Falls School District, 424 N.E.2d 531 (1981) and King v.
Kayak Manufacturing Corporation, 387 S.E.2d 511 (W. Va. 1989).
n95. For example, in Friedman v. Houston Sports Association, 731 S.W.2d 572 (Tex. App. - Houston 1st Dist. 1987), the court considered
the case of an eleven-year-old girl who had been injured by a foul ball at a Houston Astros game. While the court analyzed in light of the
considerations set out in Crane, the court cited only to earlier Texas and New York decisions which in turn had cited directly to Crane.
Page 134
997 of 999 DOCUMENTS
Copyright (c) 1997 Valparaiso University Law Review
Valparaiso University Law Review
Summer, 1997
31 Val. U.L. Rev. 833
LENGTH: 21910 words
THE MONSANTO LECTURE: ASSUMPTION OF RISK
NAME: Stephen D. Sugarman *
BIO:
* Visiting Professor of Law, Columbia Law School. Agnes Roddy Robb Professor of Law, University of California, Berkeley (Boalt
Hall). Genevieve Hebert, Christine Huang, Jennifer Mathews, Nina Phillips, and Nicole Ryan have all provided helpful research assistance.
LEXISNEXIS SUMMARY:
... I refer to a famous opinion, known to generations of law students as the case of "the Flopper," authored by that
common law giant Justice Benjamin Cardozo. ... After all, by analogy, passengers know about a parallel danger they
face whenever they get on a bus, but assuming that physical risk obviously does not block a lawsuit against a negligent
driver. ... There was evidence that, in view of the warning, the student teacher expressly assumed the physical risk just
as I did before undergoing plastic surgery; and just as the vigorous young man riding on the Flopper did. ... Although
these cases are typically said to involve "express assumption of risk," as I have already noted, the better way to understand the situation is that, by reason of the explicit agreement, there is simply no legal duty to exercise due care. ... In
these cases society, through tort law, insists that the defendant actually take the safety precaution that removes the danger. ... So, if there was a duty and a breach, how do we extricate the defendant from liability other than by saying "assumption of risk"? Clearly the defendant was the cause-in-fact of the injury to what I am calling the professional rescuer, and the victim was not at fault (which, anyway, would only lead to a reduced recovery). ...
TEXT:
[*833]
I. Introduction
n1
There is confusion at the very top. I refer to a famous opinion, known to generations of law students as the case of
"the Flopper," authored by that common law giant Justice Benjamin Cardozo. n2 The whole point of the Coney Island
amusement park ride was to flop its helpless participants to the floor. That is what made it fun, as every participant
clearly realized. If years of experience were any guide, the Flopper was a largely harmless amusement. But on one occasion it yielded an unfortunate accident the plaintiff's fractured knee cap. Cardozo's marvelous style foretells the outcome at the outset when he refers to the plaintiff as "a vigorous young man."
The opinion flops, however, when Cardozo reaches for the Latin maxim "volenti non fit injuria." This is usually
translated as "he who consents cannot receive an injury." That, of course, is transparently false. The consenting
[*834]
victim in the Flopper case clearly did receive an injury, and a serious one at that. One might quickly retort that the
Latin maxim does not mean to refer to the physical injury; rather, it refers to the legal injury. Yet that sweeping pronouncement, too, is clearly incorrect as I will soon demonstrate.
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31 Val. U.L. Rev. 833, *
But first I want to underline here a theme to which I will return throughout. All too often it is the victim's apparent
consent to the physical injury that has captured the legal mind with scant attention given to whether there might properly be a difference between that consent and consent to the legal injury.
Yet there is a difference. Suppose I go to a plastic surgeon to discuss a possible nose job. My doctor says that while
I almost surely will look better afterwards, I need to understand that it is always possible that she might carelessly perform the surgery, leaving me with a very distorted face. To which I reply, "Doctor, I trust you. I'll take that chance."
Now suppose, as my luck would have it, her hand was not very steady that day, and, as a result of her negligence, I
emerge from surgery looking like the after-version of Dorian Gray. Although I clearly chose to run this very risk that is,
the physical risk am I prevented from successfully suing her in malpractice? Of course not. I may not be able to regain
my original appearance, but I clearly can win money damages through tort law. In short, volenti non fit injuria simply
does not apply.
This illustrates the central problem of the doctrinal muddle I explore here. A so-called principle that may or may
not apply is of little help: indeed, it is confusing, unnecessary, and if we are not careful, it will lead us to the wrong
outcome.
Of course, if my doctor had me sign a document in which I agreed not to sue her even if she committed malpractice
on me, and assuming that in our state such agreements not to sue are legally valid, n3 then I would indeed lose my tort
suit against her. But by merely consenting to the physical risk of her carelessly wielded scalpel, I surely did not agree
that I would refrain from suing her. In short, I consented to the danger, but I still received a legal injury. I assumed the
physical risk, but not the financial risk.
[*835]
To be quite clear about it, the volenti principle relied upon by Cardozo is just another way of stating the doctrine of
"assumption of risk." n4 These are not different ideas; they are the same idea the same bad idea. Yes, of course, the
plaintiff assumed the risk in the Flopper case, just as I did in my plastic surgery debacle. In the end, he deserves to lose
his tort suit, while I deserve to win mine. Assumption of risk, therefore, can have nothing to do with explaining the different outcomes. Rather, I win because my doctor was negligent, and the vigorous young man loses because the
amusement park was not.
Cardozo's opinion reads as though assumption of risk is a separate complete defense that the amusement park could
offer up even if it were negligent. That, as we will see, is wrongheaded. Worse, Cardozo compounds this confusion with
one of his most memorable phrases: "the timorous may stay at home." n5 Talking this way mis-focuses our attention on
the plaintiff, when, in these sorts of situations, we should instead be concentrating on the conduct of the injurer. If my
doctor started talking about "timorous" patients, suggesting I should have been content with the looks I originally had,
that would get her nowhere.
Two main themes dominate the Sections that follow. The first theme is that when we are tempted to say "assumption of risk" we should instead say something else. Sometimes, we should rely on other tort doctrines that lead to the
same result that conventionally has followed from the legal rule of "assumption of risk" a defendant's outright victory.
These other doctrines are "no breach," "no duty," "no cause," and "no proximate cause," and it is important to appreciate
why and where "assumption of risk" is a confusing substitute for each of them. In other situations, the defendant should
not win outright, in which case saying "assumption of risk" yields the wrong result. Sometimes, the proper result is a
partial plaintiff victory, and those cases should be handled by the partial defense of comparative negligence. Other
times, the defendant's conduct merits taking full responsibility for the loss, so that invoking "assumption of risk" would
turn the proper result on its head. Again, it is important to understand when and why these two very different outcomes
should prevail.
My argument here is something of a mixed positive and normative one. On the one hand, I offer what I believe to
be a parsimonious explanation for most of the existing cases, one that rejects "assumption of risk" as both superfluous
and unilluminating of the real reason for the result. On the other hand, by offering a better way of thinking about the
cases, my analysis helps correct the mistakes that I believe some courts have made. In those settings "assumption
[*836]
of risk" is dangerously misleading. This mixed descriptive/prescriptive analysis is in the tradition of several prominent so-called "tort theorists" such as George Fletcher, n6 Richard Epstein n7 and Richard Posner. n8
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31 Val. U.L. Rev. 833, *
Re-directing tort doctrine as I propose reveals my second main theme the important and too little discussed problem
that I call "when is warning enough?" Howard Latin has recently engaged this question in a most insightful way in the
product injury field. n9 I offer, however, a more sweeping approach to the question, showing its importance across
many types of accidents with which tort law deals. In the process, I explain why the "libertarian" instinct that "warning
is always enough" is, and should be, rejected by the legal system, and, in turn, why, in some appropriate settings, the
defendant need actually take precautions that reduce the risk of injury in order to avoid liability.
II. Not "Assumption of Risk" but Something Else
A. "Assumption of Risk" as "No Breach"
Many cases in which the courts talk about "assumption of risk" are best understood as ones in which there simply
has been no negligence, or more precisely, "no breach" of the duty to exercise due care. Although the Flopper case,
which I already discussed, is a prime example, I will focus now on a different, very familiar situation. Suppose you are a
spectator at a baseball game and you are struck by a foul ball while seated in an area of thestadium that is not protected
from such balls by a screen. Although this sort of injury is often said to be governed by the principle of "assumption of
risk," that is a mistake. The reason you lose the case is that the defendant's conduct was reasonable.
Surely it cannot be negligent merely to promote the national pastime. Obviously, we want to attend live baseball
games, we don't want baseballs constructed of soft material, and arming each fan with some sort of individual protective
shield seems silly as well. Moreover, despite the slight danger, we don't want all the stadium seats fenced, just as we
don't want the seats all moved so far back from the game to be out of reach of foul balls. Either of those precautions
would deprive the fans of an important pleasure they ought to be able to enjoy seeing the game relatively up-close
without the annoyance of having to look through a screen. Rather, we only want the seats to be screened
[*837]
where the risk from foul balls is especially great, a precaution that I assume was taken in the stadium where you
were injured. That is, I assume you were struck in a location where no case for screening could reasonably be made.
In short, while spectator foul ball injuries are a regrettable by-product of baseball, they are generally not injuries
that we should blame on the stadium operators because there was nothing careless about their behavior. Hence "assumption of risk" is beside the point.
Indeed, the "no breach" analysis explains why, for example, even very young children in attendance at the game,
who do not really know anything about baseball or the danger of being hit by a foul ball, also properly lose their cases.
In the leading California case on the subject, Judge Wood gets into trouble when he writes, "by voluntarily entering into
the sport as a spectator he knowingly accepts the reasonable risks and hazards inherent in and incident to the game." n10
Fans struck by foul balls do indeed lose because the risks created are reasonable, but not because they knowingly accepted them. In the case before the court the plaintiff alleged that since she was ignorant of baseball, had never been to a
ball park before, and was paying no attention to the game at the time, she "cannot be said to have knowingly assumed
the risk." n11 The opinion tries to escape from this seemingly telling point (given the court's analysis) by evading it
talking about the risks being "common knowledge," and that they are "imputed to her," and that they "should have been
observed by her" n12 (piling on yet more confusion by suggesting, quite wrongly I believe, that first-time adult spectators at baseball games are somehow at fault if they choose to spend the afternoon talking with a friend rather than
watching the action).
Rather, to repeat, for both the first-time fan and the five-year-old fan, just as for the experienced fan, being hit by a
foul ball is just bad luck because there is just nothing more that should reasonably have been done to protect the victim
from the danger. Obviously, if foul ball injuries were much more common and much more harmful, we might well
think differently about the precautions that stadium operators should take. n13
[*838]
A parallel point may be made here from the world of intentional torts. When you participate in a properly run boxing match and your opponent injures you with a series of altogether proper punches, you have no cause of action for
battery. The traditional explanation for this result is that it cannot be a battery because there was consent volenti non fit
injuria, assumption of risk. n14 But I think it is quite misleading to think of this as a consent case, when the one thing
the plaintiff boxer tried hardest to do was to prevent his opponent from successfully landing a punch. The real reason
the plaintiff loses, in my view, is that the defendant did nothing wrong. To be sure the plaintiff's agreement to partici-
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31 Val. U.L. Rev. 833, *
pate in the boxing match is what legitimates the defendant taking a swing, and to be sure the plaintiff assumes the physical risk of harm. But the reason we want the defendant to win, at the core, is that he acted perfectly reasonably. This
approach also better explains those carnival boxing match cases we used to see, where the local yokel gets hoodwinked
into fighting the carnival pro (probably to impress his girlfriend) and then has his face smashed in. n15 Assuming we
want the victim to win his lawsuit, it is because we find such matches socially unacceptable and improper for defendants to promote. It is the defendant's wrongdoing, not some legal gambit that allows us to void the plaintiff's consent,
that best explains the outcome that holds the defendant responsible.
The examples so far all come from the world of sports and entertainment. But the point applies to many other sorts
of cases as well. Suppose, for example, you purchase an automobile with a soft top, a convertible. Now, assume, as bad
luck would have it, your car overturns for some reason that is not relevant here, and you sue the manufacturer for the
damages you suffered claiming simply that the vehicle is defective because it didn't have a metal top that would have
saved you from harm. You will lose. Although it is tempting to say "assumption of risk," the best way to understand the
case is that the car you bought simply was not defective.
Although this area of law today typically parades under the label of "strict products liability," in fact, the "design
defect" claim you would be making here
[*839]
is largely a matter of negligence law. n16 In any event, regardless of the label, the central point is that for you to
win we would have to be convinced that, because of the risks involved, the car maker should not have sold you a convertible. But society does not feel that way. Because people like the open air sensation of driving convertibles and, in
general, this is not dangerous, we have concluded that it is perfectly all right for car makers to sell, and motorists to buy,
vehicles designed like that. As a result, there was "no breach" of the duty to provide a non-defective car.
Consider next a common situation from the medical injury field. Returning to my nose job example, suppose my
doctor had told me something rather different. Suppose she said, "I want to warn you that about one percent of the time,
people getting nose jobs emerge from surgery looking far worse. This is not because of any carelessness by the doctor,
but, apparently, because of something about the bones certain people have. We plastic surgeons have been trying to
figure out when this is likely to happen and how to prevent it, but it is all still a big mystery to us." And suppose I respond, "I understand that, doctor. I'll take the chance."
Unfortunately, in my view, this area of the law has come to be headed "informed consent," n17 and you can bet that
today my doctor would have arranged for me to sign a so- called "consent form" acknowledging that I had been informed of and was willing to run that one percent risk. But this situation, too, is best understood as one in which I lose
simply because my doctor did not commit malpractice. Of course, she needs my consent to attempt the surgery at all.
Otherwise, it would be battery. But when we focus in on the risks of surgery, the better analysis goes like this. Doctors
have a duty to make reasonable disclosures of those risks to their patients. My doctor satisfied her duty by telling me
what she did. Because I was just one of the unlucky one percent, I cannot fairly blame her for my harm. Since there was
"no breach," she does not need the volenti principle as some sort of separate defense.
Next, I want to give an example of my general point from the area of premises liability. You will recall that President Clinton recently badly injured his knee when he fell down some stairs at the home of his good buddy, the golfer,
Greg Norman. Imagine that the conversation just before the fall went like this. "Mr. President" (I am assuming here that
even friends address the President that way) "Watch out. There are some confusing shadows down at the bottom of this
stairway. I would not want you to be injured in my home." "No problem, Greg," replies the President, as I imagine it.
And then bang, he falls,
[*840]
and the next thing we know the meeting with Russia's President Yeltsin is delayed for a day. Many of us had previously thought of Gerald Ford as our slip-and-fall President, but no longer. Now suppose Clinton sues Norman. Maybe
he would not mind being on the plaintiff side of a case given all of his other legal woes these days. Yet, I trust that the
President would lose because (I am assuming at least for the moment) Norman simply was not negligent. We can say to
the President "volenti non fit injuria," but assumption of risk is legally beside the point.
Finally, I want to turn to a couple of examples about which some people say "assumption of risk" where that is
even more far-fetched. Suppose you are sitting in your living room watching television and suddenly, and amazingly, a
car comes crashing in through the window and injures you, the driver having had an unexpected heart attack and
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31 Val. U.L. Rev. 833, *
blacked out. n18 Or suppose you are out on a walk near a baseball park when suddenly, and to your astonishment, you
are struck and injured by a ball hit outside the park for the first time, a feat of such mighty prowess that no one had previously imagined it was possible. n19 In both of these instances, if you sue your injurer, you will lose. And you will lose
for the same reason the plaintiff loses in the Flopper case: the defendant simply was not negligent.
Or course, in these cases you never really thought about the risk that eventuated, or had any real reason to do so,
and hence in the lay sense it sounds preposterous to say that you agreed to, or assumed, it. Nonetheless, sometimes legal
people are heard to say that risks like these are ones that the law "deems" you to have assumed. I admit that this is not
an incoherent thing to say, although in that sense, any case in which the plaintiff loses is a "deemed assumption of risk"
case. Yet it is especially confusing to bring talk of "assumption of risk" into cases like these when your choice, in effect,
was simply to live in a world where freak events occur. This choice, of course, has nothing to do with explaining the
legal outcome.
[*841]
B. Duty v. Breach and the Problem of Saying "No Duty" When What Is Meant Is "No Breach"
In another well-known Cardozo opinion, a young boy was injured when a wire he was swinging, while crossing a
bridge, came into contact with the defendant's electric railway wires, thus transmitting a damaging shock to his body.
n20
In his lawsuit, the boy was required, among other things, to prove that the defendant was negligent. Establishing that
the railroad failed to exercise due care generally necessitates demonstrating not only that the defendant was aware of the
dangerousness of its conduct (or should have been), but also that there is some reasonable precaution that the defendant
should have taken to avoid the harm. Perhaps the easiest way to justify the railway's victory in this case is on the ground
that the danger to the victim was simply unforeseeable.
However, Cardozo goes on to discuss, and dismiss, possible precautions that the defendant might have taken even
had it been aware of the danger (or, presumably, that it might take in the future, once it was on notice of this risk). One
of those precautions would be to insulate the railroad's wires; another would be to put them underground. But, Cardozo
concluded, in neither case was it negligent to fail to take such precautions. On the one hand, the electric railway needed
uninsulated wires in order to function, and impliedly it was not negligent to operate an electric rather than, say, a
coal-powered system. And on the other hand, demanding that they put the electric wires underground would be asking
too much. That is, it would be financially too burdensome and hence unreasonable to ask that of the railway, given the
small risk that the overhead wires presented. Therefore, because the boy failed to identify a reasonable precaution that
the railway could have taken, the defendant would not have been negligent (and hence not liable to the boy) even if the
risk was foreseeable.
This all makes a great deal of sense to me, and is fully consistent with the current understanding of "negligence" as
the failure to take reasonable precautions. Put differently, the job of the legal system in such cases (usually the jury, but
sometimes the judge) is to decide whether a specifically proposed precaution is appropriate or too burdensome, and it is
supposed to do this by weighing the heaviness of the burden against the danger that the precaution would avoid.
The only problem I have with Cardozo's opinion in the case is that, when discussing the possible precautions, he
talks about the railroad having no "duty" to underground the wires. n21 This, unfortunately, is a common formulation in
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judicial opinions. But, to be precise, what Cardozo means is that the defendants did not "breach" their duties to
take reasonable care by failing to take the precaution in question. This imprecision would not be a serious problem but
for the fact that there is a separate defendant's legal doctrine called "no duty," and this case is not an example of it.
That is to say, sometimes, as I will next illustrate, defendants win cases because they had "no duty" to exercise due
care towards plaintiffs in the first place. Hence, the fact that the plaintiff may be able to identify even a simple precaution that the defendant might have taken does the plaintiff no good. For you cannot fail to exercise due care as a legal
matter when there is no obligation to do so in the first place.
A classic instance of this concerns the common law principle that you have "no duty" to rescue strangers. n22 Suppose, for example, you are sitting alone at the end of a pier next to a life- saving ring and I come along the pier, accidentally slip into the water, and call out for your help, but you do nothing and I drown. In a lawsuit by my heirs against
you, you would prevail even if a jury, if given a chance, would have strongly condemned your inaction as callous re-
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flecting the failure to have taken the totally reasonable precaution of having almost effortlessly tossed the life-saving
ring out to me. I will discuss the reason(s) why you would win this case shortly.
For the moment the point to be made clear is that you win for a doctrinally quite different reason than the railway
wins its case with the boy swinging the wire. You win because the legal system imposes on you no duty to exercise due
care towards me. The railway, by contrast, clearly did have a duty to exercise due care to pedestrians and others passing
along side of their rail system; it is just that, at least in this situation, the railway in fact exercised due care. Put differently, they win because there was nothing they failed to do that they should have done; by contrast, you win the pier
case despite the fact that nearly everyone will say that you failed to do something you had a compelling moral duty to
do. The reason, again, is that as a legal matter, you had no duty, whereas the railroad had a duty but did not breach it.
Therefore, because "no duty" is a decidedly different idea, and hence a separate legal concept from "no breach," I
find it unnerving and potentially quite deceiving when Cardozo employs the phrase "no duty" when referring to some
potential precaution the railway might conceivably have taken, when it would be better to say that the failure to take that
precaution was "no breach."
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Put more broadly, the difference between the doctrines comes to this. "Breach/No breach" involves the evaluation
of a specific defendant. Given what she knew or should have known, is there some way that the community (i.e., the
jury, or perhaps the judge) thinks she should have acted otherwise? "No duty," however, is not a matter of making an
evaluation of the specific facts of this case. Rather, it is a global determination that, for some overriding policy reason,
courts should not entertain causes of action for cases that fall into certain categories.
C. Justifying "No Duty" Rules
Several overriding policy reasons may support "no duty" rules. Three common sorts of justifications I will call: 1)
trumping values, 2) fears of socially undesirable conduct were a legal duty granted, and 3) judicial manageability. Often
more than one such reason may be offered for a specific "no duty" rule.
I will take the space here to discuss at some length these underpinnings of "no duty" rules not only to make even
more forceful the distinction between "no duty" and "no breach," but also in order to provide the groundwork that will
later be needed when I explain why certain cases that may be labeled "assumption of risk" (by others) are better understood as "no duty" cases.
Returning to the "no duty to rescue" strangers rule, this may be justified first by assigning such great weight to the
value of "individual liberty." The idea is that the importance of permitting you to do what you want with your time and
not have to serve as a "slave" to the needs of others should trump even the slightest social obligation to go to the aid of
another. This is a principle that meshes as well with the peculiarly American commitment to the value of "rugged individualism" in which individuals are meant to be self-sufficient and not have the right (or need) to call on others for assistance.
Second, the "no duty to rescue" rule may rest on fears that it would do more harm than good. This could be based
on the belief that those who can competently rescue will generally voluntarily do so even without a legal duty, and that
imposing a legal duty will only bring out incompetent rescue efforts and officious intermeddlers seeking to provide help
where none is needed or wanted. In the same vein, imposing a legal duty might also cause talented rescuers, like physicians, to remove themselves from locations where they might be coerced to rescue, thus undermining their opportunity
voluntarily to do so.
Third is the problem of judicial administration. In many rescue settings, such as where people are in distress in public places like on the highways or in auditoriums, there are a large number of potential rescuers, and the courts may well
fear that the legal system would not be able either to determine fairly just
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who should have made the effort, or to handle the caseload if everyone present were permitted to be sued.
I do not mean to argue that each (or any) of these justifications is necessarily persuasive, but only to present them
as examples of three types of justifications that may be put forward for a "no duty" rule. Maybe the "no duty to rescue"
rule is actually better justified by yet other reasons, for example, by a different trumping value. One possibility is that
we need to make room for people to act "heroically" or "charitably" rather than allowing their altruism to be demeaned
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by being identified as legally compelled.
at least a duty of easy rescue. n24
n23
Or perhaps, in the end, the courts are just wrong not to impose a legal duty,
After all, many other common law "no duty" rules of earlier days have since been abandoned or modified. For example, it could once be said in a fairly sweeping way that product makers had "no duty" to exercise reasonable care
towards users of their products with whom they had no privity of contract which was most users once most manufacturers began selling their products through middlemen. n25 Possible early justifications for this rule were that it was too
hard to tell what modifications a user might have made in the product, or that we very strongly valued the idea of "caveat emptor," or that we feared that new and desirable forms of capitalism would otherwise be stymied.
As another example, at an earlier time people in general had no duty to avoid negligently imposing emotional (as
contrasted with physical) harm on others. n26 Perhaps early justifications were that allowing such actions would flood
the courts with an administratively unmanageable torrent of "hurt feeling" cases, or on a ground that devalued "emotional" injury as beneath public recognition and compensation.
Nowadays, as values have changed, new understandings have emerged about behavioral responses to rules, and
new notions of judicial competence have arisen, many of these sweeping no duty rules have been thrown over.
Nevertheless, even beyond the "no duty to rescue" principle, other "no duty" rules remain, and some new ones are
regularly being adopted as novel lawsuits are tried out and categorically rejected. For example, when water companies
carelessly fail to provide water at hydrants at the time when it is
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needed to fight a fire, n27 or when power companies carelessly cause massive "blackouts," n28 victims who had
relied on having these "essential" services and were injured by their shortage may well be barred by a "no duty" rule
justified perhaps because of fears that the potential enormity of liability would bankrupt these providers of essential
services (thereby possibly depriving the public of the services altogether), or that an avalanche of claims, including
faked claims, would overwhelm the judicial system.
Let me complete this illustrative run-through with a contemporary example. Suppose a television program portrays
a bizarre and nasty assault by a group of boys on a girl, and the next day, in real life, the conduct displayed on this show
is copied by a group of boys who had watched it together. n29 Under ordinary negligence principles, if the girl sued the
program's producers (and the network that ran it), she might well win if she could convince a jury that it was foreseeable
that viewers would be inspired to act out what they watched on that particular program, and that, in view of the danger it
presented, it was, on balance, unreasonable to have aired that program at all (at least with the specific attack portrayed
in it). But when courts reject such cases, what they are saying is that tort law imposes no legal duty on networks to take
reasonable care towards victims who are injured in the way here assumed. That is, plaintiffs are never allowed even to
ask a jury to condemn this defendant's specific conduct as negligent because the judiciary has decided in advance to rule
out this category of cases.
In this instance, once more, a series of justifications may be offered in support of the "no duty" holding. One is the
free speech value of the First Amendment. This does not necessarily mean that the First Amendment itself actually precludes such lawsuits as a matter of constitutional law; the courts usually do not find it necessary to get that far. The
point is rather that, as a matter of state common law, such suits should not be allowed because to do so would too much
chill the media's exercise of free speech in deciding what programs to run. One way to put this worry is that when a
local person has been injured, then local juries will improperly and unwisely devalue the free speech interest in the specific case, condemning a program regardless of its artistic, social or other merit. There is also an administrative worry
concerning proof that the jury will unfairly find a causal connection between the defendant's conduct and the plaintiff's
injury that may well be lacking. In the next case the assault depicted on TV may have been of a generic sort without
distinctive features, and in the following case the plaintiff may seek to connect
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the violence with a program watched weeks ago, or a series watched over a season. The risk then is that mass media operators' fears of open-ended and unpredictable liability for both these reasons would in turn be translated into socially undesirable self-censorship to the overall net detriment of society at large. And to protect against this "chilling
effect," a "no duty" rule is adopted. Or put somewhat differently, the courts may conclude that tort law (i.e., decisions
by juries) should not be the forum in which we try to resolve the contemporary public debate over the extent to which
television violence breeds violence and what sort of censorship, if any, should follow.
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Speaking generally, then, we have seen that "no duty" rules are adopted by courts as a way of preventing juries
from attempting to award damages to plaintiffs in the individual case maybe for fear that the jury will not give the proper weight to the overriding value that the court has identified (like liberty, or free speech), maybe for fear that the jury
will make too many mistakes, or maybe for the other sorts of fears already canvassed (e.g., there will be too many cases
brought, or bad behavioral consequences will flow from allowing such cases, or excessive liability will fall on and perhaps wipe out this class of defendants).
I want finally to emphasize that a "no duty" rule may also reflect the judgment that the social values the tort system
is meant to promote are already being well served through other institutional arrangements so as to make it, in a sense,
redundantto provide a tort remedy in the particular setting. This is perhaps best illustrated for the moment with workplace injuries. The idea is that, given the existence of workers' compensation schemes, governmental occupational safety agencies, and union and other bodies to which workers may turn when they discover workplace dangers, it may be
concluded that the compensation, safety promotion, punishment, and individual justice objectives of tort law are already
sufficiently furthered. And, in fact, the typical American solution has been to create a "no duty" barrier to nearly all
lawsuits by workers against their employers although in this setting, not by judicial adoption, but rather through workers' compensation legislation itself. D. "Assumption of Risk" as "No Duty"
Now we are prepared to look at that category of cases in which "assumption of risk" is commonly invoked, but
which are better understood as "no duty" cases. For example, it was often said that under the early common law a trespasser assumed the risk of any and all dangers he encountered on the defendant's premises. n30 Some years ago considerable attention was given to
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a California case in which a criminal fell through a high school roof to the gymnasium floor below, sued the
school district, and received a substantial financial settlement. n31 The gist of the objection to the case clearly was that if
you engage in illegal acts, getting hurt is a risk you take. But in the actual case, talk about "assumption of risk" decidedly puts the emphasis in the wrong place. That trespasser did not knowingly run the physical danger that injured him;
rather, he crashed through a painted-over skylight that, in the dark, looked like wood. If you want that trespasser to lose,
it is, I suggest, because you support the rule that the defendant simply owes trespassers "no duty" of care. To be sure,
the plaintiff's status as an undeserving "outlaw" is one way to understand the reason underlying the traditional "no duty"
rule something with which the case's critics would no doubt have agreed. But that is quite different from the idea that
the trespasser chose to engage any specific peril.
An especially good illustration of my point here is revealed, I believe, by cases in which professional athletes are
injured in the course of competition through what they claim is the negligence of others, usually fellow players. On the
whole, these plaintiffs lose. For example, in one prominent New York case a jockey, who was hurt through the alleged
careless riding of another jockey, sued and was denied recovery. n32
Notice carefully that we are not talking about inherent risks of the game arising from reasonable conduct by others
such as legitimate tackles in football, appropriate slides in baseball, fair checks in hockey, to say nothing of proper
punches in boxing. Nor are we talking about unintended, inevitable accidents of the sport that are not the result of what
might properly be considered negligence such as the broken baseball bat or the accidental elbow to the body when battling for a basketball rebound. Victims in all of those cases would lose because there was no fault, that is, "no breach."
Rather, I am talking here about careless conduct that, the plaintiff alleges, the jury would label as unreasonable if given
the opportunity.
Of course, athletes know, in a general way, that they may well be exposed to injury through the careless playing of
the sport by others. But, ordinarily, the physical risk they thereby may be said to assume when they elect to play would
hardly itself be a ground for denying them recovery. After all, by analogy, passengers know about a parallel danger they
face whenever they get on a bus, but assuming that physical risk obviously does not block a lawsuit against a negligent
driver.
[*848]
Still, there may well be good policy reasons generally to prevent lawsuits by professional athletes for injuries suffered as part of the game through the fault of other participants. The broad argument here is one we have seen in the
prior Section that courts should keep out of the business of resolving disputes within professional athletics because the
social objectives that tort law might serve by providing a remedy are already effectively dealt with through parallel institutions.
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Specifically, professional sports have their own special rules (and rule-making bodies), their own umpires and referees, and their own penalty structure (both during the game and afterwards when higher- up officials can impose even
stronger sanctions). Hence, in most professional sports there already exists, outside the formal legal system, an elaborate
structure to deal with goals of deterrence, punishment and justice. Moreover, professional athletes (and their leagues)
typically (although not always) have reasonably generous injury insurance schemes that go well beyond what workers'
compensation would provide, thereby, arguably, eclipsing tort law's compensatory function. Finally, as an administrative matter, were tort law to try to offer a remedy for ordinary negligence, there might be considerable uncertainty and
inconsistency in deciding whether certain conduct was fairly treated as negligence. Examples here include a wild pitch
or throw in baseball, or tackling to break up the flow of the game in soccer conduct which, on the one hand, may be
undesired by the injurer but perhaps not reasonably avoidable in the heat of play, or, on the other hand, conduct which,
although "penalized" by the officials, is generally treated by the players as a legitimate "part of the sport."
In sum, it is perhaps well justified to deny recovery in tort to a professional athlete for an injury arising from what
would otherwise be viewed by the jury in a specific case as the negligence of another competitor. Nonetheless, as I have
shown, the volenti principle is not the persuasive justification, and all the talk by the New York court that the injured-jockey "accepted the risk" n33 once more confuses the assumption of physical risks with the proper legal outcome.
Rather, the explanation I have put forward is of the sort classically used to justify a "no duty" rule.
Notice further that, if the sporting behavior in question (or perhaps I should say, the "unsportsmanlike conduct" in
question) goes too far beyond the bounds of routine misconduct within the sport, or perhaps if the game's officials are
seen by the courts as having lost control of the sport, then the judges may well conclude that tort law has a role to play
after all, and they achieve this result by
[*849]
recognizing a legal duty of care. n34 The New York court in the injured-jockey case appreciated this distinction.
Yet this line, if and when it is crossed, does not have anything to do with the point at which the risk of physical injury,
in any real sense, ceases to be assumed, since athletes voluntarily compete knowing that they are at risk of flagrant infractions as well. Put differently, for the participants, it is not any more "all right" for opponents to carelessly injure
them than it is for opponents to recklessly or intentionally injure them. Rather, the courts probably sensibly draw that
line on grounds that, once the defendant's conduct has become flagrant, the policy reasons that free an athlete from liability for injuring an opponent no longer apply.
E. "Express Assumption of Risk" as "No Duty"
More than fifty years after the Flopper case, and right around the time of the injured-jockey case, another New
York Court of Appeals decision provided further confusing signals in yet another amusement case. n35 A high school
senior class arranged for a day of "donkey basketball" as a fund raiser. The defendant company, which provided the
donkeys, helmets for participants to wear, and so on, warned everyone that there was a slight chance that the donkeys
might buck or put their heads down thereby tossing the riders off. Sure enough, when her donkey put its head down, the
plaintiff, a student teacher, fell off and permanently injured her arm.
The issue before the court was whether the plaintiff had expressly assumed the risk. In the torts literature it has long
been well understood that "express assumption of risk" is a label applied to what are better termed "express agreements
not to sue" that is, situations, like that hypothesized earlier involving me and my doctor, where she gets me to sign a
waiver of liability by agreeing not to sue her, even if she commits malpractice on me.
However, clearly no such agreement was signed in the donkey basketball case. There was evidence that, in view of
the warning, the student teacher expressly assumed the physical risk just as I did before undergoing plastic surgery; and
just as the vigorous young man riding on the Flopper did. But I trust we have seen by now that this fact by itself is useless in telling us whether
[*850]
the plaintiff should win or lose the case. The donkey riding teacher no more signed away her right to sue than I did
in the original version of the plastic surgery fiasco. To hold for the donkey owners on the ground of express assumption
of risk, as the New York Court of Appeals did, is altogether the wrong analysis. It fell into this trap by looking no further than the plaintiff's assumption of the physical risk.
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Maybe the student teacher should lose her case but if so, it is for a different reason. We see that better when, once
again, we turn our focus away from the teacher's consent to the physical risk and examine the behavior of the defendant.
Maybe, as with the owners of the Flopper, the defendant simply was not negligent. After all, if even normally tame animals very occasionally throw their riders, regardless of what precautions the owners take, then it may well be quite
reasonable to provide this sort of amusement, at least when the participants are well warned of the danger. And if the
defendants were not negligent, they should win outright.
Unlike the plaintiff in the donkey basketball case, accident victims in recreational activities settings may well have
earlier signed an agreement not to sue. For example, suppose before joining a health club you sign a contract providing,
in part, that you agree not to sue the club for any injuries you might suffer owing to the club's negligence. Assuming this
agreement is valid, its effect is to relieve the club of a legal duty to exercise due care towards you. The club would
probably still owe you a duty to avoid grossly or recklessly injuring you, but if, for example, you slipped on the shower
floor or strained your back on an exercise machine or hurt your knee in an aerobics class and claimed that their negligence was responsible for your injury, your lawsuit would fail. n36
Might it make sense for you and the club to make this agreement? Perhaps it does. Both management and club
members may realize that it will often be very difficult to determine whether an injury was caused by the fault of the
club, or by the carelessness or general health condition of the member, or whether it was just an unavoidable injury.
Agreeing that there will not be litigation over such injuries, with the member then on notice to obtain her own first-party
insurance elsewhere (if that is what she wants), probably helps keep the dues down. Moreover, since joining a health
club is hardly compulsory, and since there are often many health clubs in a community, if people wanted to retain the
right to sue, they could probably find a club that offered membership on that basis. Hence, in order to promote individual preferences we generally allow
[*851]
people to sign and then uphold these sorts of agreements not to sue. Although these cases are typically said to involve "express assumption of risk," as I have already noted, the better way to understand the situation is that, by reason
of the explicit agreement, there is simply no legal duty to exercise due care.
Not every agreement not to sue is upheld by the courts. For example, the leading California case striking down such
a release involved an agreement not to sue hospitals for malpractice connected with medical treatment. n37 If the
agreement is voided, the case proceeds as under ordinary tort doctrine and the plaintiff, with the right proof, can win
outright. In these settings, public policy precludes the defendant from cutting a deal in advance with the would-be victim which curtails the victim's later ability to sue. n38
To be sure, some of the reasons for disallowing express agreements not to sue include doubts as to the voluntariness
on the plaintiff's side such as the plaintiff's critical need for the service from the defendant, or the burying of the disclaimer in the agreement's fine print. On the other hand, Vermont's highest court recently voided a ski resort's efforts to
obtain a waiver of liability on the ground (at least in part) that this would undesirably remove the resort's safety incentives. n39 In any event, when an agreement not to sue for negligence is struck down, it is only confusing to say that we
are taking away a "defense." Rather, we are saying that the defendant was never properly relieved of his duty of care in
the first place.
F. "Assumption of Risk" as "Contributory/Comparative Negligence"
I now turn to another category of cases where "assumption of risk" is not only the wrong way to look at the problem, but also where to do so would reach the wrong result. Suppose you go out dancing at a nightclub. You meet someone who offers to drive you to a second club. Your new friend clearly has been drinking too much, although you have
not. But you are in a carefree mood and agree to go along. You see just how unsteady your friend is both while walking to the car and as your friend drives through the parking lot toward the street. Yet you remain in the car and say
nothing. Sure enough, about two blocks away your friend smashes the car into a tree, and you are hurt. Assuming your
state has neither an automobile guest statute (now a rarity) nor a comprehensive auto no-fault plan (which currently exists in North America only in Quebec), what happens when you sue the car's driver in tort? Volenti
[*852]
non fit injuria you clearly assumed the risk. Do you lose? My sense is that the clear majority, if not universal rule,
is "no," and properly so. n40
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At common law, simplifying somewhat, if the simultaneously negligent conduct of two parties combined to produce the injury of one of them, that victim would fail in her lawsuit against her injurer. This is because the defense of
contributory negligence was a complete bar to recovery. One justification for this rule was that since the plaintiff could
have avoided her harm through her own due care, she should have looked to her own precaution for protection and
should not now come to the courts for relief. Another justification was simply the common law's abhorrence of anything
but all-or-nothing outcomes, and its unwillingness to provide full recovery to someone who was also at fault in causing
her own injury.
In recent years, this all-or-nothing thinking about a plaintiff's fault has been overthrown, driven partly by the widespread belief that juries often refused to follow their common law instructions finding a careless plaintiff not at all at
fault, and then perhaps taking some of that generosity back through a lowered damages award. As well, many commentators sharply objected to a rule that freed from any responsibility a careless (and often insured) defendant whose proper
behavior would have avoided the injury, especially when this meant that the careless (and often uninsured) victim
would have to bear all of the physical pain of the accident as well all of its financial consequences.
As a result, nearly everywhere today, the plaintiff's fault will serve only as a partial defense, with the plaintiff
thereby entitled to recover from the defendant a portion of her loss (assuming, of course, that the defendant is also at
fault or otherwise thought legally responsible for the injury). n41 Therefore, through the application of this new regime
generally called comparative negligence the tort law now has an official device for blaming both parties to an accident
by making each of them take partial responsibility for paying for its financial consequences.
In other words, the attitude of tort law today towards my example of you riding with your drunk driver friend is "a
plague on both of your houses." The driver was clearly negligent in driving while seriously inebriated; you, too, were
negligent, however, by accepting a ride in those circumstances. The way we punish you both for your combined foolishness is by making the defendant pay something, but at the same time by denying you full recovery. To be sure, the
timorous would have stayed at the first club. But going for the ride is not the
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same as signing away your right to sue. To be sure, in this instance, even the venturous would have refused the
ride. But, as I have just said, your contributory negligence, almost everywhere, is no longer a complete bar; instead, you
will obtain a partial recovery, something like, say, three-quarters of your damages.
One more thing. A person might well ask why does tort law consider the drunk driver negligent when the passenger
was willing to go along for the ride? The paradigm case for the application of the modern notion of comparative negligence, after all, is one in which both parties are carelessly inattentive for example, one motorist is talking to a passenger
and not paying attention to his speed or the road ahead while the other motorist pulls away from the curb without
checking for traffic from the rear. There is a crash that either driver could have avoided had he been paying proper attention. Under comparative negligence (at least in the pure form), any losses the two then suffer are shared by them in
proportion to their fault. n42
But not all careless conduct is inattentive or oblivious, or the product of misjudgment or poor application of skill.
That is to say, sometimes actors may be said to be "knowingly" or perhaps even "deliberately" negligent. That was certainly the case in the drunk driving example before us. A fundamental policy issue therefore is whether this latter sort of
conduct by plaintiffs about which it may be said "assumption of risk" should be treated in a different way from inattentive negligence. On the whole, the answer has been to treat the two the same. n43
In order to understand why that is so, the first thing to note is that this is tort law, not contract law. The community
sets standards of behavior in tort law, not the parties themselves. Still, one might press, if the parties are willing to run
the danger, why does the community demand more of them? Why does it, in effect, paternalize them, telling them to act
safer than they apparently felt was necessary? In short, why doesn't it treat the car ride like the Flopper? This actually is
a very difficult question about which I will have more to say later. For now, however, let me offer at least three reasons
that together seem reasonably compelling in this situation.
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First, the drunk driver endangered not just the passenger, but others on the road as well, and since we are eager to
discourage and punish drunk driving generally, we are not about to let the driver off completely just because, as it happens, only the passenger was hurt.
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Second, the drunk driver was far more dangerous to the passenger than the Flopper was to its participants. And so,
even if the passenger and the drunk driver want to get their kicks like this, we, the rest of society, simply do not approve
of that in the way we do approve of people running some other risks. After all, if someone is hurt, which is all too likely
in this situation, the rest of us are probably going to have to pick up some or all of the tab through public or private insurance arrangements, but we are not eager to do that. This is in contrast to the Flopper situation where we think of the
plaintiff as merely a victim of fate, like someone who happens to be hit by lightning and now needs medical care.
Third, even though the passenger willingly got in the car at the time, this is probably the sort of risk that the passenger would candidly acknowledge, in the light of day, that he should not have run. This is unlike the Flopper situation, which presumably continued to draw its patrons, even those in line when the plaintiff in that case was hurt. Indeed,
the very victim of the Flopper would probably like to try the ride again, at least if his knee were up to it.
The riding-with-the-drunk example is by no means the only case in this "both at fault" category. Consider two
others that come from the defective products area. Suppose you drive your new car home from the showroom, and
within a day or two you realize that the brakes are working badly, pulling you sharply to the right whenever you apply
them quickly. But rather than immediately taking the car back to be fixed, you are so eager to be behind the wheel that
you go ahead and drive the car some more, trying to compensate by braking more slowly. Sure enough, two days later
another motorist ahead of you in traffic unavoidably skids on wet pavement, you brake to get out of the way, and your
defective brakes pull you into a tree.
You sue your car manufacturer for the personal injuries you suffer. Again, the general rule nowadays is that you
will recover some but not all of your damages. n44 In short, both you and the car maker are held responsible for the injury the company on the ground that it sold you a defectively manufactured auto and you for your negligence. In other
words, comparative fault, or what is sometimes called comparative responsibility, applies not only to pure
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negligence cases, but also to cases where the defendant is so-called strictly liable.
Even though this may seem like comparing apples and oranges, the jury is nonetheless told to do its best to determine the parties' relative shares of the responsibility for the injury and make its award accordingly. n45 As a result, although, by continuing to drive the defective car after discovering the defect, you clearly assumed the physical risk of just
the sort of injury that happened to you, your claim will not be completely barred.
The same rule has been applied to many cases involving the foreseeable misuse of defective products. In those cases, the defendant is held responsible for its inadequate design when it did, or should have, anticipated the likely misuse
of its product and had a ready way of preventing the misuse (such as by adding a better guard to a press used in the
workplace). When that very misuse occurs (such as when the victim removes the inadequate guard), tort law does not
want to let the defendant off. To be sure, the victim, typically, well knew that by misusing the product as he did, he was
taking a risk of the very injury that followed. Volenti non fit injuria. Yet, because of the irresponsible behavior on both
sides, the typical solution today is to give the plaintiff a partial recovery. n46
Not all cases will have undisputed outcomes. You come to a skating rink, pay your money, don your rental skates,
and just as you start out onto the ice you see that some rowdy teenagers are skating in ways that have made the rink
dangerous for everyone. So, you complain to the manager, who assures you that he will immediately deal with the
problem. You wait ten minutes, but the rowdies are still at it. Rather than complain again, or ask for your money back
and leave, you venture cautiously onto the rink. Sure enough, very soon two of the rowdies bang into you, knocking
you down and hurting you. Although you assumed the risk, I have little doubt that the rink owner will nonetheless be
held responsible for your injuries (the rowdies, of course, are judgment proof). So, what is clear again is that the volenti
principle does not apply to bar your recovery. What is not entirely clear is whether you will only receive a partial recovery on the ground that your own conduct was unreasonable. Although I would consider you partly at fault, perhaps
some will disagree. n47
[*856]
G. Plaintiff Wins Notwithstanding "Assumption of Risk"
In this Section, I want to address cases in which "assumption of risk" threatens to produce entirely the wrong result,
that is, cases in which, rather than losing, plaintiffs should decidedly recover in full. I have already given one example,
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the first version of my nose job story. But if that sounded somehow fishy to you, consider next this slight variation on
another well-known case. n48
A porter employed by a railroad negligently spills a very slippery substance on a railway platform and does nothing
to deal with the danger thereby created. Sure enough, a passenger walking down the platform while awaiting a train
slips and falls onto the tracks. This passenger happens to be a two- year-old who then becomes trapped on the rails, both
too frightened and too weak to move. The train is now roaring towards the station, and the child's father who had
planned to take the helpless infant on a journey with him, faints with terror. But you, our super-hero, seeing that the
child will almost surely be killed if nothing is done, jump down onto the tracks, and in a flash pick up the child in your
arms and scamper towards safety. Alas, even you could not outrun the oncoming locomotive which rolls over your
trailing foot causing you grave injury. The child is safe; you get your picture in the paper and lifelong thanks from the
child's family.
Not satisfied with those rewards, you sue the railroad in tort. Its lawyers plead "volenti non fit injuria" assumption
of risk. But, unlike the victim in the Flopper case, you will win. In yet another of Cardozo's marvelously coined phrases,
"danger invites rescue." n49 In these circumstances, harm to a rescuer like you is exactly what the defendant should
have expected would happen, and the railroad will be liable to you for the harm resulting from the negligence of its porter. You clearly did assume the risk of physical harm, but not the legal risk; the "timorous" remained on platform, yet
you will win your case.
Consider next a similar outcome from an entirely different area of tort law. You buy a power lawn mower. It contains a large caution sign over the hole from which the grass comes out, warning you to keep your hands, feet and the
like out of there. Although you know you are supposed to keep away from that hole, suppose that while using the mower you accidentally slip and fall, and sure enough one of your limbs goes part way into the hole and you are badly mangled. At trial your lawyer is able to show that for one dollar more the mower manufacturer could have added a guard to
the product that would have prevented your injury. In most jurisdictions today, the so-called "open and
[*857]
obvious danger" rule has been abrogated because of situations just like this. n50 Despite the fact that you clearly
realized the risk you were running, courts have concluded that tort law nonetheless should condemn product makers for
clear design errors. As a result, the jury is very likely to find the mower to be a defective product and award you full
recovery in this example, even though it might be said about you "volenti non fit injuria."
III. When Is Warning Enough?
Although I have not especially emphasized it so far, my examples reveal a difficult and too little discussed problem
to which I turn next. I will call it: "when is warning enough?" n51 A warning was sufficient in the soft top convertible
case, but not in the lawn mower case. A warning was sufficient in the Flopper case, but not in the defective brakes case.
A warning was sufficient in the President's slip and fall case, but not in the riding with the drunk case. When I discussed
the drunk driver case, I gave some reasons to justify that specific result. In this Section, I want to discuss the issue more
generally: when should a clear warning fully discharge the defendant's duty to exercise due care, and when should the
defendant be required to take precautions to reduce the danger?
A. No Reasonable Precautions Available
In many situations a warning is sufficient because there are no additional precautions available that the plaintiff can
reasonably suggest that the defendant should have taken. I have in mind here cases in which society believes that the
product, service or whatever ought to be able to be offered as it was, and to have reduced the danger would have meant
a dramatic and unacceptable change in what the defendant provided.
For example, suppose a ski slope operator carefully warns you, through markers, maps and the like, which of its
trails are suitable for beginners, which are suitable for intermediate skiers, and which are suitable for advanced skiers.
Alas, you, an intermediate skier, break your leg while on an advanced slope
[*858]
where you should not have been. In this instance, the warning will satisfy the operator's duty to exercise due care.
So that friends and families can all go to the same mountain, we want ski slope operators to be able to cater to a range of
skier abilities. But in order to do that, they need to offer ski runs of increasing difficulty. n52 I am assuming that everyone agrees that it is totally impractical for the resort operator to test skier abilities before every run they take. So, as I
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have emphasized throughout, if you sue you should lose, although the reason is not "assumption of risk" but rather that
there simply was "no breach." The point to be emphasized now, however, is that in this instance an adequate warning
was enough.
This category also contains the Flopper case and the convertible case. The amusement park could have turned the
Flopper into a very safe moving sidewalk going nowhere, but then who would want to ride on it? And if drivers could
only open the windows but not put the top down, the motoring experience just wouldn't be the same.
This analysis applies as well, I believe, to more controversial matters. Take cigarettes, for example. To me the right
way to understand the core of the tobacco litigation to date is that society, in the end, has considered cigarettes to be like
the Flopper. In short, cigarettes, as a legal matter, have not been treated as a defective product. This is because, despite
their great dangers, we have concluded that this product ought to be able to be sold (at least to adults), and so far as we
can tell, to take away the risk of cancer, heart disease, and lung disease would also mean to eliminate cigarettes as we
now know them. In short, like the Flopper, so long as the dangers are made clear, we have been unwilling to say that
they should be taken off the market. Of course, the legal conclusion could change if people start believing otherwise
either about the viability of a safer cigarette or about the acceptability of selling cigarettes at all. n53
[*859]
A nice counter-example makes the point even more sharply. Many years ago I saw a cartoon depicting a customer
inside a supermarket looking at two bins of apparently similar products. One has a sign that reads "Mushrooms $ 2.49 a
pound." The other has a sign that says "Mushrooms? 3 cents a pound." Suppose you actually buy some of the 3 cents a
pound product, eat it, and become critically ill because those mushrooms were poisonous. In contrast to cigarettes, I am
firmly convinced that we would find it entirely unacceptable for supermarkets to sell such a potentially fatal product,
regardless of its low price. Hence, the store would be liable for selling you a defective product, notwithstanding the
clearly implied warning that the bin of cheap mushrooms might be deadly to eat. n54 That is, warning was not enough.
In fact, there are actually very few reported cases like the mushrooms example. New Jersey courts started down this
route at one point when they concluded that certain backyard, above-ground swimming pools could be deemed defective (and the manufacturers held liable), regardless of any warnings they carried. n55 These pools were viewed as simply
too dangerous and thus should not have been sold at all. It has also been suggested that diabolical products like highly
dangerous lawn darts are also in this category. n56 But, for understandable reasons, tort law has been very slow to condemn products, services and conditions squarely on the ground that they are so dangerous that their very provision to a
seemingly willing plaintiff was socially unacceptable.
B. Available Precautions and Injuries to "Strangers"
So, let me turn then to cases in which the plaintiff can propose a plausible precaution that the defendant might have
taken without dramatically transforming the good, service or situation it provides, but where, instead of taking the precaution, the defendant only warned of the danger.
[*860]
In some settings, it seems clear that warning alone will not suffice. Suppose the defendant posts a large sign telling
people to be on the lookout for trucks emerging from its building site. You see the sign as you approach the site on foot
on the sidewalk and continue on alertly. Just as you are crossing the driveway, you are struck by a truck being carelessly
driven out of the site by one of the defendant's employees (say, the driver was going too fast). In that event, the defendant would be liable to you. The warning clearly will not replace the duty of its employees to drive carefully.
Or consider another example. Defendant is a new driver and posts a large "learner" notice on his vehicle. You, an
experienced driver, find yourself driving in traffic along side of the defendant and you see and understand the defendant's notice. You don't pull out of the way, but continue to drive as you normally would. The defendant then changes
lanes carelessly, crashes into your car, injuring you. Once more the warning alone will not suffice to satisfy the defendant's duty of care.
In other words, in both of these examples the defendant is not permitted to slough off his duty to exercise due care
merely by making you aware that he is acting, or might act, carelessly. Even with this knowledge, you are still, as a legal matter, entitled to demand that he actually take the precautionary measure. Perhaps your knowledge entitles us to
say of you that by continuing your activity in the face of the warning you assumed the physical risk. But legally saying
"assumption of risk" would get us into trouble.
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To be sure, there may be some cases in this category in which we would consider it unduly foolhardy for the plaintiff to continue on with her own lawful activity in the face of the defendant's conduct. For example, suppose she saw
not just the warning signs, but also the speeding truck heading for the exit, or suppose she saw the novice driver actually
weaving out of control. In those situations, her failure to take reasonable precautions to get out of the way (despite minor inconvenience to her) could well be viewed as negligent on her part. But as we have already seen, the consequence
of that today, generally speaking, is not a complete bar (as would follow from "assumption of risk") but rather some
appropriate reduction of her damage award.
The examples just described involve what we usually would call injuries to "strangers." Although the plaintiff and
the defendant may belong to the same community and have been sharing the road or sidewalk or crosswalk, they were
not really involved in a transaction together. In such settings, tort law says you may not subject another to unreasonably
dangerous risks merely by warning that you are about to do so.
[*861]
C. Available Precautions and Voluntary Relationships Among Ordinary People
It gets much trickier, however, when there is something of a voluntary relationship between the parties, such as
buyer and seller, owner and invitee, employer and employee, doctor and patient, and the like.
Consider first the homeowner with a guest in his house. Let's re-run President Clinton's recent injury with a different script. Now suppose the President hears Greg Norman say, "Watch out when you go down those stairs Mr. President. The handrail broke off last week, and I haven't had time to replace it yet." Or suppose the President simply realizes
that, even though the stairs are rather steep, there is no handrail. In that situation, even if the President could convince us
that he would not have fallen had there been a hand rail for him to hold onto, he probably will lose. n57 As usual, I
would say this is not because he "assumed the risk" but rather because the legal system would conclude that, in this
case, a warning is sufficient either the personal warning by the defendant or the implicit warning by the open and obvious condition of the stairs themselves.
But why is a warning sufficient here, when it would not be all that difficult for Norman to have replaced the handrail? The right answer, I believe, is that we feel that it is too burdensome to ask ordinary homeowners to make these
repairs even if they are not very expensive. In other words, if the homeowner himself is willing to live with this sort of
danger (usually not a very large danger), then we conclude that it suffices to satisfy his obligation to exercise "due care"
to put the visitor on the same footing.
Historically, this point was broadly captured by the different levels of care said to be owed to invitees and licensees. The paradigm invitee was someone welcomed for business onto commercial premises, whereas the paradigm licensee was a social guest in one's home. Simplifying somewhat, the law allowed the invitee to demand that the owner
both reasonably search for dangers and repair those he found, or should have found; whereas the licensee could ask no
more than for reasonable warnings of dangers already known to his host. n58 But now, even in those many jurisdictions
where the formal distinction between invitees and licensees is breaking down, n59 the application of the general negligence principle will yield the same result. That is, for social hosts, the exercise of due care will generally be satisfied by
warning, so that the victim
[*862]
will generally not succeed if he bases his case on the claim that the danger should have been removed.
n60
Take two seasonally different examples. The weather has brought us snow and ice. I have invited you over for dinner, but I have not cleared my driveway or stairs. You see the danger, but alas you slip and fall and injure yourself. You
probably will lose your suit against me for failing to shovel or de-ice. n61 Alternatively, you come to town to play in a
summer tennis tourney and need some place to practice. You ask to use the court I have in my backyard, and I warn you
that there is an uneven spot along the baseline that I have not repaired. You decide to practice there anyway and trip at
that spot. You will probably lose your case against me. n62
D. The Inadequacy of the Libertarian Perspective
The outcome of these cases might suggest that the courts have embraced what I will call the "libertarian outlook."
But, after explaining what I mean by that, I will then show that this conclusion is a mistake.
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From the libertarian perspective, in cases involving "voluntary relationships," an effective warning should always
suffice. If the plaintiff did not want to go ahead in the face of the danger, she should not have done so. Because she has
chosen to do so, she should not later be able to say that the defendant should have presented the transaction to her on
different and safer terms. If the defendant had no obligation to enter into the transaction in the first place, it was sufficient to disclose at the outset the risks involved and leave it to the plaintiff to decide.
Put differently, the libertarian would be opposed in principle to having the legal system step in and allow the jury to
conclude that the defendant should have done something different. This would remake the transaction between the parties, and that presumably would over-ride their own (original) preferences and interfere with their private liberty to
make the transactions they wish. In short, victims should be stuck with the choices they made.
[*863]
Notice that, by contrast, in cases that do not involve voluntary relationships, the libertarian outlook cuts the other
way. So, as in my learner-driver and truck-pulling-out-of-the-building-site examples, when the plaintiff is out on the
road (on foot or in a car) exercising her liberty of movement, the defendant will certainly not satisfy his duty of care by
warning, thereby hoping to get away with imposing an unreasonable risk on the plaintiff. This is because doing so
would, of course, interfere with the victim's liberty to drive or walk where she has a right to be.
The libertarian perspective puts considerable weight, then, on determining whether a specific relationship is voluntary or not. Even when it is voluntary, it is necessary to determine whether the warning given was truly effective so as to
make it fairly said that the plaintiff knowingly made an informed choice to continue in the face of the danger. If these
conditions are not met, then the libertarian would also agree that the defendant might be blamed for the injury.
Although the libertarian perspective comfortably explains the Flopper case, the situation with cigarettes (provided
we agree that the warning has been adequate), the tennis court case, the missing handrail case, and so on, it would be
wrong to assume that this is the right way to understand today's tort law. This is because it fails to explain a large number of cases, to which I will turn next, in which a clear warning to someone in a voluntary relationship is insufficient. In
these cases society, through tort law, insists that the defendant actually take the safety precaution that removes the danger. In other words, the libertarian perspective too much emphasizes contract and consent assumption of risk if you will
without allowing a sufficient role for tort and community standards.
For example, as noted earlier, in most jurisdictions, product makers are very unlikely to escape liability for patent
dangers in their products that are readily eliminated by simple redesign strategies. A warning will not suffice. My lawn
mower case demonstrates this point. Other illustrations from the product injury field include situations in which the victim uses the product after discovering the defect my bad brakes example and those in which the product maker realizes
that the product will be misused my example of the plaintiff using a machine after removing the guard.
But product makers are not the only defendants required to do more than warn. For example, landowners increasingly have duties to take reasonable steps to make safe areas that are open to the public, to protect tenants and patrons
from crime and so on. Those defendants are now much less likely to
[*864]
escape liability because the danger is open and obvious or because the defendant had warned of the danger.
n63
A key point to notice here is that these defendants tend to be commercial actors on whom we are willing to impose
the burden of taking precautions beyond warnings. This may be seen more clearly in the following example. Suppose
you come to my home and I warn you that the chair you propose to sit in has a weak leg. If so, I probably will not be
found liable to you when the chair collapses, because I discharged my duty of care to you through warning. I am not
obligated to fix these sorts of dangers in my home in order to prevent such injuries to my guests. Hotels, by contrast,
would generally not get away with providing their guests with rickety seating even if they did warn of the danger. n64
E. Why More than a Warning Is Required
But why do we insist on more than a warning from these commercial defendants when the plaintiff himself did not
demand more? A generalized response is this: tort law asks more for the same reasons that our society has imposed
housing codes on landlords, FDA requirements on food sellers, CPSC regulations on product makers, OSHA restrictions on employers and so on. Simply put, we just do not always trust individual choice and the market to provide
the level of safety that society considers desirable.
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But, at least in the torts area, what more specifically might be said to lie behind these requirements? Let me offer
several arguments. First, we may have generalized doubts as to the voluntariness of the conduct of those in the plaintiff's situation. At the workplace, for example, the libertarian viewpoint simply assumes that when employees accept
dangers connected to their jobs they do so truly by choice, by obtaining higher wages in return. But many people today
do not generally accept the libertarian's underlying assumption about the free market for labor, reasoning that all too
many workers must accept whatever dangers they face on the job for fear that they would otherwise be out of work and
out of money. Rather than seeing a worker as someone who prefers to handle a printing press whose guard has been
removed, they see that worker as a victim of superior bargaining power someone who, in effect, has to accept the dangerous machine under duress. Tenants who wind up living in dangerous housing (typically lower income people) are
also seen to be other than truly
[*865]
voluntary participants to the transaction in question. These realities may help explain why warning is found to be
insufficient in cases involving workplace and apartment house accidents.
Note well, that the tort rules applied in these settings that require defendants to do more than merely warn not only
reject the generalized libertarian assumption about transactions of these sorts (e.g., in employment and housing), but
they also reject its application in an individualized way to the accident in question. This employee will be able to insist
that the defendant should have provided a safer machine without having to show that his specific encountering of that
machine was effectively coercive rather than voluntary. This tenant will be able to insist that the landlord should have
provided better locks and lighting without having to show that she actually had no choice in accepting the apartment in
question.
Second, some injuries arise out of situations in which it is widely believed that reasonable people would wish, if
they really thought about it, to have been protected against the danger that they faced even though, by their conduct,
they appear to have willingly confronted that danger. Suppose, for example, you are told about a very small chance of a
very serious harm, but because it seems so small you simply disregard it. Now it turns out that there was a way to have
paid a bit more to have avoided the risk. The libertarian view is that this is a risk you ran, and you must bear the consequences. But society might nonetheless believe that it well serves people's own best interests their true preferences if
they really thought about them to prevent them from running that risk at all. Tort law tries to do that by telling defendants that it will not be sufficient to warn of the risk, and that to avoid liability it is necessary to take the precaution that
eliminates the risk. The problem of momentary inattention and slips-of-the-hand by product users is another example in
this same vein. Again, society might well conclude that we, the users, actually want the law to impose a kind of
self-paternalism on us, one that keeps us from choosing a product that could hurt us through our momentary carelessness, if it would only cost a bit more to eliminate that risk altogether.
Third, sometimes a warning will suffice for some people, perhaps even most of those who are exposed to the risk.
This is because, once forewarned, they are able to deal with the danger in ways so that they will remain uninjured. Yet
other people need the defendant to take actual precautions if they are to be protected from harm. Those in the latter
group may be especially clumsy, or have bad judgment, or do not properly read, digest, or remember warnings given to
them. Others may be children who are immature or have an
[*866]
exaggerated taste for danger. And so on. n65 The law might well, in the end, treat some of these people as contributorily negligent if it were to come to that, but as we have seen, that defense would only arise as a partial defense to an
already liable defendant. And that is the question here. Should some people's need for protection against their own
inadequacies, whether or not they are contributorily negligent, create an obligation in the defendant to do more than
warn? Assume further, for the moment, that the defendant will have to treat everyone alike, so that the precautions
would have to be imposed on some people who do not need them. Even in this setting, however, society may well decide that defendants must do more than warn, and that, on balance, it is better to insist on precautions that may only help
some. Mandating air bags, although not quite the right example, illustrates the point. Their primary benefit is to those
who should, but for whatever reason do not, use their seat belts. Yet we are now insisting on air bags for everyone. (In
fact, air bags also provide some extra safety benefit even for those who are already using seat belts, but even if they did
not, the point here is that we might mandate them anyway.)
Fourth, sometimes what seems like a voluntary transaction betweentwo parties also involves risk of harm to third
parties. This risk creates what is commonly termed an externality. My earlier example of riding with a drunk driver fits
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this category. Again, contrary to the libertarian who would hold you responsible for your own choice, tort law today
permits you to advance what are, at least in part, the safety concerns of others who were involuntarily endangered by the
driver's conduct.
Even more broadly, there may be a desire in cases like this to impose precautions on would-be victims for the benefit of their loved ones who later suffer if the victim is badly injured, and/or for the benefit of society at large which
wants neither to lose the productive capacity of needlessly injured workers nor to have to bear the welfare costs of caring for such people. These sentiments might be said to involve a different sort of externality. Nonetheless, they seem
directly to reject the libertarian ideology which treats people much more seriously as autonomous individuals.
Economists typically point out that imposing more safety on defendants will result in lower wages, higher rents,
more expensive products and the like. If those costs were large, a point to which I return below, we may well be reluctant to impose them. But the general point here is that, in those instances in which the burden of precaution is modest,
tort law is a vehicle for promoting the adoption of that precaution when we believe that more than a warning is socially
desirable.
[*867]
Of course, as an institutional matter, tort law imposes these obligations on defendants through juries as guided by
judges. People have very different views about how good a mechanism this is to determine community sentiment. Still,
since we already depend upon it for the implementation of the negligence standard generally, so long as we have tort
law at all, it is the mechanism we have. It might be argued from the libertarian view that at least with stranger injuries
we have no choice since somebody has to set the standard, but with relationship cases, the argument goes, we should
always defer to the parties themselves. The response of tort law today is this: If those in voluntary relationships do not
like tort law imposing on defendants more than the obligation to provide a reasonable warning, they should expressly
agree to that, thereby relieving the defendant of any such additional burdens. The law will uphold that agreement unless, of course, there appears to be a strong public policy reason not to do so. In short, the default legal rule rests on the
assumption that would-be victims want tort law as I have described it to serve as backup to make reasonable demands
on would-be defendants for precautions that they, as consumers, employees and the like, probably should have made
themselves.
It is also worth pointing out some more general reasons why we use tort law to insist that commercial defendants
(in comparison to individuals) take precautions that victims did not insist upon. First, we are more willing to use enterprises than individuals for social engineering purposes because enterprises are more likely to be responsive to legal
signals. That is, because business organizations plan with the "bottom line" in mind, they are more likely to take precautions in order to avoid liability. n66 Second, these defendants are generally in a better position to bear and spread the
loss afterwards if the precaution was not taken and the victim is injured. Moreover, we tend to give little moral weight
to the liberty interests of what are impersonal entities. Third, through their repeated behavior, commercial actors are
more likely to subject more people to risk.
By contrast, as I already noted, when it comes to ordinary individuals in their private settings, things look different.
If I have not gotten around to fixing my dining room chair or my stair rail or my tennis court in order to protect myself,
then I may well not take these precautions before you come over for a visit as my guest. Besides, unlike the enterprise, I
have no product or service into which I can internalize the cost of making my home safer. Furthermore, my liberty to
keep my home in the condition I like has substantial social value.
[*868]
F. The Problem of Options
The analysis so far has pretty much assumed an all-or-nothing resolution of the choice between warning and precautions. But consider those situations in which the victim clearly had options, that is, where there was a choice to confront either a safer or a less safe version. Sometimes, it seems clear that we are pleased that there are options like that,
and in such circumstances the informed victim who selects the more dangerous option generally will not recover. We
saw that in the example of the intermediate skier who tried the advanced slope. It is also true that Chrysler will not be
liable merely for selling you its, say, less safe small and lightweight Neon car just because that model is more dangerous, say, than are Chrysler's Jeep Grand Cherokees. We want people to have these options, if nothing else, because of
the great price difference between them.
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Indeed, a car maker need not offer both a safe and less safe option to get away with providing only a less safe model. The car market today is filled with many sources of information about autos and their safety. Consumers tend to shop
carefully, and models differ along so many dimensions that our society tolerates vehicles with a wide range of passenger
safety. Indeed, the government tests many models and reports their relative safety rating based on those crash tests.
For other products, however, it may not suffice for a defendant to rely on the fact that other makers offer safer versions. Consider, for example, safety leg guards for motorcycles. Assume that these are just the sort of thing that will
especially benefit inexperienced cyclists, but at the same time are exceedingly annoying and probably of rare help to
expert cyclists. In this setting, we probably do not want motorcycle makers to provide the leg guards on every vehicle
they sell (although we might think differently if they were not so annoying and we saw that lots of beginners were foolishly going without them). On the other hand, it may not be enough that only some brands offer the guards as an option.
That is, perhaps we would term any individual maker's cycles defective if it too did not provide the guards as an option.
n67
Otherwise, given the lesser public information about motorcycles as compared with cars, we might fear that buyers
who come into their local motorcycle dealer and try out that brand will not be aware that they can obtain this option
elsewhere.
There are still other safety features, however, that we probably want to insist upon. In those cases we would hold
responsible in tort those defendants who merely provide them as options. One example is the one dollar guard on the
power lawn mower, which presumably provides substantial safety benefits
[*869]
without impairing the operation of the machine. In that setting, we would probably consider someone who refuses
the model with the guard to be contributorily negligent. Nonetheless, we would still probably want him to recover partially because we find it unacceptable for the defendants to have offered a guard-free version in the first place.
G. Assumption of Risk as "No Cause"
Lurking here is the very difficult issue of how tort law's "cause in fact" requirement should be applied. Suppose the
defendant in the guard-less mower case says that even if it had sold its mowers only with the one dollar guard, this buyer, given his actual selection, probably would have removed it. If we allow the argument and believe the assertion, the
defendant would get off on the ground that the failure to provide a guard on all of its mowers was not a cause-in-fact of
the plaintiff's injury that is, the victim would have been hurt anyway.
Courts dealing with this sort of issue have been inconsistent from one area of tort law to the other. In the medical
malpractice area, the dominant rule in so-called informed consent cases has the jury decide whether a typical patient
would have gone ahead with the operation even had the doctor disclosed the risk that she failed to disclose. n68 If so,
then the injured patient loses on cause-in-fact grounds. The usual reason for looking to patients in general, as opposed to
the plaintiff, is that, after-the-fact, the plaintiff will always testify that he would not have gone ahead if he had known of
the risk. This solution is perhaps overly cautions. After all, there is no reason for the jury automatically to believe what
the plaintiff says, and evidence of what other patients typically do could be used to discount such self-serving testimony.
Indeed, in both the product injury area and in the premises liability area, where the claim is that the manufacturer or
owner failed to warn of a certain risk, courts do not seem to react the same way. There they ask the jury to decide
whether this plaintiff would have acted differently had he known of the danger, perhaps not realizing the inconsistency
with the medical malpractice cases. n69
With this general framework before us, let us return to the situation in which the mower was sold without a guard
and the jury thinks that all such mowers should have had a guard. In that setting, it seems clear to me that if we ask
whether the typical consumer would have removed the guard, the answer will very likely be "no." Moreover, even if we
focus on this buyer, it is rather
[*870]
dubious that, if this mower came with a guard, he would have removed it. Instead, it is far more likely either that
he paid no attention to the guard when buying the mower, or else wanted the lowest priced mower. Under those assumptions there is no reason to surmise that he would have removed the guard had it been standard. On this analysis, the
defendant will not get off on cause-in-fact grounds regardless of which cause-in-fact test we apply.
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But if we now alter the facts a bit, we can create an example in which the cause-in-fact limit would seem to have
bite, at least if we direct it toward the actual plaintiff rather than at buyers in general. Consider the sport of hang gliding.
Suppose the jury decides that it is negligent for the defendant not to offer a safer version of its product (say, one that
contained a safety cage). But suppose we are also convinced that even if that had been done, this particular plaintiff
would not have bought the safer version. That might be the case if, say, beginner and intermediate hang gliders would
find this extra security very welcome, but some advanced hot shots like the plaintiff found the cage unaesthetic and
cumbersome. Although applying the cause-in-fact test to buyers generally might keep the defendant on the hook, if the
test is instead applied to this particular plaintiff, then the jury would presumably let the defendant off. n70
I do not object to that result. The first thing to notice is that the explanation for the victim's loss is not "assumption
of risk," but rather "no causation." That conforms to my general thesis. Second, although we are unhappy with the defendant for not offering the optional safety cage, it is probably all right in this setting that the cause-in-fact rule prevents
this specific victim, who has a special and understandable taste for danger, from relying on that social objection. After
all, this case arises in a context in which the jury was only saying that the defendant should provide an option and not
that all hang gliders should come with the safety cage.
H. Harder Cases Where the Precaution Is More Burdensome
Throughout, in the examples I have used, I have made simplifying stipulations in order to demonstrate my general
points. But in the real world we confront situations which are far messier. An important category is where the safety
feature that the plaintiff says the defendant should have included carries a more substantial cost or significantly interferes with some other feature (productive or aesthetic). In such cases, what is needed to protect the victim is more than
what might be termed an "easy rescue," and, therefore, it is more
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difficult to confidently conclude that the defendants should have done more than warn of the dangers.
A good example is illustrated by injuries incurred in national parks. Assume that the victim is able to identify precautions, such as handrails, that probably would have protected the plaintiff from injury. Yet, a core value at stake in
our national park system is allowing people to go out and confront nature without the protective interference of humans
a value that would be lost were handrails installed. This, of course, does not mean that no safety precautions need be
provided in our national parks. Nonetheless, it does show why we are likely to feel conflicted about whether, in a particular situation, the condition that might have been made safer should have been left in its natural state.
It may be agreed that, as a general proposition, where the safety precaution carries a substantial burden, we ought to
be much more certain that substantial safety gains will accrue before insisting on the proposed precaution, rather than a
clear warning. Even then, we ought to be cautious before imposing the safety feature on everyone. After all, not too far
down this line we come to the soft-top convertible and the advanced ski run.
Nonetheless, in clear enough cases, tort law will properly insist on even more than an easy rescue as, for example,
in the very dangerous above-ground swimming pool and lawn darts examples. Some people may say they want to buy
that sort of recreational equipment, and claim they are unhappy having only wading pools or underground pools, or
having only bar darts or outdoor nerf darts as their options. Yet, we may conclude that the highly unsafe nature of these
products is simply socially unacceptable.
Indeed, there are some cases that are rather like these in which the courts, in my view, have become too caught up
in the volenti principle and have refused to condemn unacceptable products outright. One example is a case in which a
court tolerated a BB-gun that was much more dangerous than it need be, just because its dangerous design made it look
like an old-fashioned rifle. n71
However we resolve difficult individual controversies like this, let me emphasize once more that "assumption of
risk" does not lead us to the answer. "Assumption of risk" would always tell us to conclude that an adequate warning
was enough. Rather, as I have explained, we must look to other considerations in order to determine when more than a
warning should have been provided.
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IV. The Most Difficult Cases: "Assumption of Risk" as "No Proximate Cause"?
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Sometimes, a single course of conduct can injure two victims. One is entitled to full recovery, the other none at all.
What distinguishes these claimants is that for one type a warning is sufficient to discharge the defendant's duty of care,
but for the other it is not. Of course, I resist the notion that the explanation for those cases where plaintiffs lose is "assumption of risk." Rather, it is better, I think, to treat these as cases of "no proximate cause."
This problem is best illuminated by claims brought by professionals whose job is to confront negligently created
dangers. Suppose you carelessly allow a fence to fall over and break a power line. You call the power company. Its employee comes over and is accidentally electrocuted while making the repair. Or suppose you carelessly break a water
pipe. You call a plumber, who comes to deal with the emergency, but is accidentally injured while trying to stop the
flow of water. Or suppose you carelessly knock coals from your fireplace, starting a fire that burns out of control. You
call the fire department and a fire fighter who responds is burned while battling the blaze.
Each of these examples fits the same model. You were negligent at what could be called "time 1." A professional,
whose job it is to deal with the consequence of your negligence, comes to the scene to confront the danger at "time 2"
and is injured. Surely we might say about these events, "Danger invites rescue." Yet, unlike the amateur rescuer who
jumps onto the tracks to save the trapped child, the general rule is that these professional rescuers will lose if they sue
you. n72 Why?
Some of the claimants in the above examples are denied recovery in many states by the so-called "fireman's rule"
which generally applies not only to the fire-fighter, but to police officers as well. n73 It should not come as a surprise
that I do not like ad hoc, free-standing doctrines like this. We need to know "why" the fireman loses and, in my view,
we ought to be able to explain that treatment by reference to more general underlying legal rules. The question, then, is
whether we can do that and without resorting to "assumption of risk."
One possible explanation for the fireman's rule is that this is an awkward way of saying that the defendant owes the
plaintiff no duty of care. This explanation draws on the usual sorts of arguments that justify a no duty result. These include: 1) the fire-fighter's generous disability compensation
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arrangements make that role for tort law superfluous; 2) because fires tend to burn up the evidence, it is unwise to
create a cause of action where the legalsystem will have difficulty determining fault; and 3) we do not want to give the
careless fire-starter a perverse incentive not to call the fire department for fear of potential liability. Although merely
stating these arguments does not make them convincing, let us assume for the moment that they are.
But even if these explanations disposed of fire-fighter claimants (and perhaps police officer claimants as well), we
are still left with the power company worker and the plumber. As to them the "no duty" arguments just made are much
less convincing except perhaps for the idea that the threat of liability will perversely cause the originally negligent party
not to call for help. n74 Yet, tort law generally blocks recovery for plumbers and power company workers as well. n75
How do we explain this? The general point applicable to all of these claimants is the familiar one discussed earlier:
reasonable warning is sufficient. Yet, before, a sufficient warning meant that there was no breach. Here, however, that
cannot be said. Clearly, had the fire spread to a neighbor's house, or had the downed power line injured a passing pedestrian, and so on, the defendant would have been liable to those victims. So, if there was a duty and a breach, how do we
extricate the defendant from liability other than by saying "assumption of risk"? Clearly the defendant was the
cause-in-fact of the injury to what I am calling the professional rescuer, and the victim was not at fault (which, anyway,
would only lead to a reduced recovery).
To overcome this difficulty, I suggest that we turn to notions typically employed in connection with the doctrine of
proximate cause. Under the Restatement view, you are not the proximate cause of the plaintiff's harm if you were not
negligent "toward" the plaintiff, even if you were negligent toward another. n76 Under a somewhat different formulation, you are not the proximate cause of the plaintiff's harm if the plaintiff's harm resulted from a "hazard" that is different from that which would have made you liable to another. n77 And
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under yet a different formulation, you are not the proximate cause of the plaintiff's harm if your responsibility for
the hazard has been superseded by the conduct of another. n78
We can, I believe, apply each of these formulations in a reasonably convincing way to the professional rescuer setting although, I admit, not without some awkwardness. The strongest way to put it, I think, is to say that the arrival of a
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professional rescuer is superseding, that is, cutting off the defendant's responsibility for the subsequent injury. Consider,
for example, the case in which X orders wood from the defendant to build a scaffold, and the defendant negligently
sends bad wood. But X discovers that the wood is bad, and yet uses it anyway. X's taking responsibility for the wood,
knowing that it is bad, becomes a superseding cause and cuts off the defendant's liability to the plaintiff who is later hurt
when the scaffold collapses. n79 The analogy here is that the professional rescuer takes responsibility for the danger
once she arrives on the scene. This is a comfortable notion to apply to professionals but not amateurs and thereby helps
to explain the different results in the two cases. Yet, I admit that the analogy is not exact, if for no other reason than that
the bad wood case involves a third party as the superseding cause, whereas here the victim herself is seen as the superseding cause.
Turning then to the "wrong hazard" notion, we might draw, for example, on the case in which the defendant negligently rented the plaintiff a car with a defective hood latch. n80 As a result, the hood flies open while the plaintiff is on
the highway. Had that caused an accident right there, as it might well have, then surely the defendant would have been
liable. But suppose instead the plaintiff manages to get the car off the road and into a regular parking place, and while
getting out to lower the hood, the plaintiff is struck by a passing motorist. The defendant now wins and the reason is that
it seems only coincidental and not legally relevant that the plaintiff happened to be standing outside his car on his way
to lower the hood. A driver getting out of his car at a parking space might just as well have been on his way to get an
ordinary package out of the trunk. The injury is not a "hazard" for which the defendant is fairly held accountable. Analogously, then, it might be argued that it is not relevant that the fire, downed wire, and broken pipe dangers were negligently created. They might just as easily have been accidentally created because in that
[*875]
instance the plaintiff would equally have been on the scene and equally at risk in the very same way.
n81
Finally, in the famous Palsgraf case n82 it was assumed that the defendant railway workers were negligent towards
a passenger they pushed onto the moving train, even though he was not injured. But they were not negligent towards
Mrs. Palsgraf. Hence they escaped liability to her when she was injured as a result of scales that fell on her in response
to the vibrations caused by the explosion of the fireworks that had been knocked from the arms of that man they pushed
onto the train. Analogously, then, it might be argued that although the defendants in these professional rescue cases
were negligent toward their neighbors and to passersby, they were not negligent toward the plaintiffs. That is, whereas
the former were entitled to precautions, the latter were due only the fair warning they got.
Trickier is to understand why they are entitled only to a warning. Although, in one sense, they depend for their livelihood upon being called out in emergencies, surely in a more immediate way they would rather not put themselves on
the line in order to save someone (or someone's property) who should not have created the dangerous predicament in the
first place. Nonetheless, thinking back to the cases involving dangers on the property of ordinary homeowners, we saw
there, too, that those who come onto the land are typically entitled to no more than a warning. This, however, seems to
imply that commercial actors who call out professional rescuers would be held to a higher standard, and yet they do not
seem to be. n83
In sum, I concede that putting the professional rescue cases into the "no proximate cause" category is a little bit
awkward. This will lead some to say that what plainly is needed here is "assumption of risk." But let me emphasize
again that this is unsatisfactory if for no other reason that it does not explain the different treatment of professional and
amateur rescuers. Indeed, in a certain sense the amateur's conduct constitutes a more voluntary encountering of the
danger. After all, he can refuse. By contrast, the professionals, certainly the police officer and the fire fighter, have a
duty to confront the risk whether they feel like it or not. Of course, those professionals knew about the risk when they
took their jobs and, more specifically, when they arrived on the scene. But, as I showed in my discussion of defective
products in the workplace, the mere willingness of an employee to accept a dangerous job clearly no longer precludes
tort recovery. A manufacturer who readily could have made the work
[*876]
environment safer by providing a different machine, for example, is likely to be held liable notwithstanding the
employee's volitional encounter of the machine's danger.
Perhaps these professional rescuer cases are simply wrongly decided. Maybe the courts have been hypnotized by
the fact that the victims assumed the physical risk and confuse that with the legal risk. There is indeed some judicial
and legislative support for this position. n84 Or maybe the courts are too caught up on the old licensee-invitee distinction
with professional rescuers relegated to the less protected category. That aside, and assuming you are still not convinced
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by the "no duty" argument I made earlier, I then conclude that "no proximate cause" will just have to do to explain the
result.
V. Conclusion
Although the Restatement of Torts still provides that assumption of risk is a complete defense to a cause of action
in tort, I have tried to show that assumption of risk is a trap in two senses. First, assumption of risk is both redundant
and confusing as a legal doctrine: any result fairly achieved by the application of assumption of risk can also be reached,
and is better understood, by the use of one of a number of other familiar doctrines. Second, the mere assumption of the
physical tends to be wrongly equated with the legal doctrine, thereby leading to inappropriate bars to legal recovery
under the current personal injury law system. The more important and difficult question for courts to ask is when should
the defendant's warning suffice, and when that question is thoughtfully answered, often it will be determined that the
defendant should have done more. n85
The ideas I have presented here are perhaps best summed up through one final example. In recent years courts
around the country have been presented with a great number of sporting injury lawsuits between participants, but outside the professional sports context. Some cases simply apply ordinary negligence principles, holding careless participants liable for injuries to others, a result that
[*877]
is, of course, consistent with the broad sweep of tort law generally. n86 Most, however, relieve the defendant from
liability for ordinary negligence at least in so-called "contact" sports settings. n87
In some of these cases, the courts seem to understand the doctrinal approach I have urged here, and rest their decision on "no duty" grounds. n88 Typically the emphasis is on, first, judicial manageability (can juries meaningfully distinguish unreasonable from reasonable risk taking in such settings, and will the courts be swamped with cases?) and
second, a fear that liability will lead to perverse behavioral incentives (that is, competitors will no longer be willing to
go all out to win because of an excessive fear of liability). I concede that these are exactly the sort of arguments that are
appropriate to a no duty theory.
Whether they are convincing arguments is another matter, however. If nothing else, I feel confident saying that informal recreational sports settings do not present nearly as many reasons for a "no duty" rule as do professional settings.
Specifically, there is no well-structured alternative behavioral control regime and no generous alternative compensation
arrangements. In a leading case, for example, some friends decided to play touch football during the halftime of a Super
Bowl. n89 The female plaintiff had complained to the male defendant not to be so rough, after he had already run into
her, reminding him that it was only touch football after all. He promised to behave better, but on the very next play,
according to her complaint and deposition, he negligently knocked her down, seriously injuring her. It is not obvious to
me just why courts should be so eager to free defendants, like those portrayed in this complaint, from tort liability for
their negligence.
Far worse, however, are those judicial opinions in this area that seem mesmerized by the idea that participants in
these activities know that they might get hurt, and so ought not complain about it. n90 Assumption of the physical risk is
essentially equated with assumption of the legal risk. It is as though, in the
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case I just described, the woman having realized that the man was not playing by the rules must have (or at least
should have) appreciated that he might do so again (notwithstanding his assurances). If she did not want to take any
further chances, she should have quit there and then. If there is one single message to take away from this Monsanto
Lecture, it is my belief that this is altogether the wrong way to think about tort liability.
Legal Topics:
For related research and practice materials, see the following legal topics:
Healthcare LawActions Against Healthcare WorkersDoctors & PhysiciansTortsNegligenceDefensesAssumption of
RiskAthletic & Recreational ActivitiesTortsProducts LiabilityDesign Defects
FOOTNOTES:
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n1 I was truly pleased to give this year's Monsanto Lecture. My many distinguished predecessors have talked primarily about tort reform
from the outside that is, through legislation. Even though much of my own torts scholarship is also in that vein, I decided instead to address
tort reform from the inside. Notwithstanding recent statutory changes, torts remains, of all the law school courses we offer, the queen of the
common law subjects. As I will argue here, in at least one important area of tort law, judges should change the way they are looking at and
talking about the issues they face. "Assumption of risk" has received considerable attention over the years, yet courts continue to get it
wrong. The most important classic writing on the issue is by Fleming James, Assumption of Risk, 61 Yale L.J. 141 (1952) and Assumption
of Risk: Unhappy Reincarnation, 78 Yale L.J. 185 (1968); John Mansfield, Informed Choice in the Law of Torts, 22 La. L. Rev. 17 (1961);
and Francis Bohlen, Voluntary Assumption of Risk, 20 Harv. L. Rev. 14 (1906). Recent helpful writing includes Kenneth Simons, Assumption of Risk and Consent in the Law of Torts: A Theory of Full Preference, 67 B.U. L. Rev. 213 (1987); Stephanie Wildman & John Barker,
Time To Abolish Implied Assumption of a Reasonable Risk in California, 25 U.S.F. L. Rev. 647 (1991); and John Diamond, Assumption of
Risk After Comparative Negligence: Integrating Contract Theory into Tort Doctrine, 52 Ohio St. L.J. 717 (1991).
n2 Murphy v. Steeplechase Amusement Co., 166 N.E. 173 (N.Y. 1929).
n3 On the validity of these sorts of agreements in general, see Tunkl v. Regents of the University of California, 383 P.2d 441 (Cal. 1963)
and Dalury v. S-K- I, Ltd., 670 A.2d 795 (Vt. 1995).
n4 The Restatement (Second) of Torts sets out "assumption of risk" in Section 496A-G.
n5 Murphy, 166 N.E. at 174.
n6 George P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537 (1972).
n7 Richard A. Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151 (1973).
n8 Richard A. Posner, A Theory of Negligence, 1 J. Legal Stud. 29 (1972).
n9 Howard Latin, "Good" Warnings, Bad Products, and Cognitive Limitations, 41 UCLA L. Rev. 1193 (1994).
n10 Brown v. San Francisco Ball Club, Inc., 222 P.2d 19, 20 (Cal. Ct. App. 1950).
n11 Id. at 21.
n12 Id.
n13 One might ask why didn't the stadium operators at least provide a warning to newcomers. I find this suggestion impractical. If an effective warning really were required, then making an announcement over the public address system once people are already in their seats
would seem hardly sufficient. It is implausible to expect people already sitting in the open to at that point ask for new seats behind screening
or well out of the reach of foul balls. Hence, a thorough warning would have to come before tickets are purchased. We could imagine that,
before buying a ticket at the stadium, every new patron would watch a video which shows people being hit and injured by foul balls and
then explains the seating options (with parallel warnings given when people seek to purchase tickets over the phone). But I find it rather
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31 Val. U.L. Rev. 833, *
preposterous to say that stadium owners are careless for not providing such warnings. Moreover, even if a claimant managed to convince a
jury that the defendant was negligent not to have given a warning, it seems to me that the victim would still probably lose on causation
grounds. That is, I find it altogether unconvincing that a warned first- time spectator would, as a result, actually choose to sit out of harm's
way, which usually means accepting a decidedly worse seat.
n14 Restatement (Second) of Torts 13 (1965); Restatement (Second) of Torts 892-892D (1979).
n15 See Restatement (Second) of Torts 892C cmt. e, illus. 9 (1979).
n16 See Restatement (Third) of Torts: Products Liability 2(b) (Tenatative Draft No. 2, 1995).
n17 See generally Peter H. Schuck, Rethinking Informed Consent, 103 Yale L.J. 899 (1994).
n18 This example is based on Hammontree v. Jenner, 97 Cal. Rptr. 739 (Cal. Ct. App. 1971).
n19 This example is based on Bolton v. Stone, [1951] App. Cas. 850.
n20 Adams v. Bullock, 125 N.E. 93 (N.Y. 1919).
n21 Id. at 94.
n22 See generally James Barr Ames, Law and Morals, 22 Harv. L. Rev. 97 (1908).
n23 See Epstein, supra note 7, at 198.
n24 See, e.g., Ernest J. Weinrib, The Case for a Duty to Rescue, 90 Yale L.J. 247 (1980).
n25 See generally Winterbottom v. Wright, 10 Meeson & Welsby 109, 152 Eng. Rep 402 (Ex. P. 1842); MacPherson v. Buick Motor Co.,
111 N.E. 1050 (N.Y. 1916).
n26 See generally Falzone v. Busch, 214 A.2d 12 (N.J. 1965).
n27 See, e.g., H. R. Moch Co. v. Rensselaer Water Co., 159 N.E. 896 (N.Y. 1928).
n28 See, e.g., Strauss v. Belle Realty Co., 482 N.E.2d 34 (N.Y. 1985).
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n29 This example is based on Olivia N. v. National Broadcasting Co., 178 Cal. Rptr. 888 (Cal Ct. App. 1981).
n30 See generally Blakely v. Camp Ondessonk, 38 F.3d 325 (7th Cir. 1994).
n31 For a fuller description of the case and some of the controversy surrounding it, see Stephen D. Sugarman, Taking Advantage of the
Torts Crisis, 48 Ohio St. L.J. 329, 337 n.47 (1987).
n32 Turcotte v. Fell, 502 N.E.2d 964 (N.Y. 1986).
n33 Id. at 971.
n34 See generally Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979).
n35 Arbegast v. Board of Educ., 480 N.E.2d 365 (N.Y. 1985).
n36 For cases upholding signed releases of liability for negligence in recreational settings, see, e.g., Barnes v. New Hampshire Karting
Ass'n, Inc., 509 A.2d 151 (N.H. 1986) and Okura v. United States Cycling Federation, 231 Cal. Rptr. 429 (Cal. Ct. App. 1986).
n37 Tunkl v. Regents of the Univ. of Cal., 383 P.2d 441 (Cal. 1963).
n38 This follows even if the class of those who signed the agreement not to sue (including the victim) benefitted from the agreement
through, say, lower costs of the service or product.
n39 Dalury v. S-K-I Ltd., 670 A.2d 795 (Vt. 1995).
n40 See generally Gonzalez v. Garcia, 75 Cal. App. 3d 874, 142 Cal. Rptr. 503 (1977) (upon which this example is based); Unif. Comparative Fault Act 1(b), 12 U.L.A. 33 (1996).
n41 See generally Williams v. Delta Int'l Mach. Corp., 619 So. 2d 1330 (Ala. 1993).
n42 In the so-called "pure form" of comparative negligence, even the mostly at fault victim may still recover a small share of her damages
from her relatively little at fault injurer. Under the "modified" versions, the injurer must be at least either equally or more at fault (depending
upon which "modified" form has been adopted) for the victim to be able to recover anything at all. In short, in those latter jurisdictions the
domain over which loss sharing operates is more restricted. See generally Victor E. Schwartz, Comparative Negligence (2d ed. 1986 &
Supp. 1993).
n43 See, e.g., Unif. Comparative Fault Act 2 Commentary, 12 U.L.A. (1996).
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n44 Restatement (Third) of Torts: Products Liability 2 cmt. l, 12 cmt. b (Tentative Draft No. 2, 1995).
n45 See Daly v. General Motors Corp., 575 P.2d 1162 (Cal. 1978).
n46 Restatement (Third) of Torts: Products Liability 2 cmts. l, o; 12 cmts. b-c (Tentative Draft No. 2, 1995).
n47 This example is based on Rauch v. Pennsylvania Sports & Enterprises, Inc., 81 A.2d 548 (Pa. 1951), a case from the pre-comparative
fault era that in my view gets it all wrong, by holding for the defendant on the basis of "assumption of risk."
n48 This example is based on Eckert v. Long Island R.R., 43 N.Y. 502 (1871).
n49 Wagner v. International Ry. Co., 133 N.E. 437 (N.Y. 1921).
n50 This example is based on Luque v. McLean, 501 P.2d 1163 (Cal. 1972). See generally Restatement (Third) of Torts: Products Liability
2 cmts. c, i (Tenative Draft No. 2, 1995).
n51 For a fine discussion of this problem in the product injury settings, see generally Latin, supra note 9. For a response to Latin, see Kenneth Weissman, A "Comment J" Parry to Howard Latin's "Good" Warnings, Bad Products, and Cognitive Limitations, 70 St. John's L. Rev.
629 (1996). In important respects Weissman seems to be talking past Latin, because, despite all of his criticism, Weissman concedes that
plaintiffs should be able to win by showing that the product was defective notwithstanding the provision of a "good" warning. Id. at 689.
That, however, is also what Latin wants the victim to be able to do. Latin, supra note 9, at 1290-92.
n52 Obviously, ski slope operators can be at fault on some occasions, either by failing to warn adequately, or by failing to take precautions
we do want them to take, such as properly maintaining the chair lifts and closing runs where there are special avalanche dangers. But I am
assuming in this example that nothing of that sort is amiss.
n53 See generally Smoking Policy: Law, Politics and Culture (Robert Rabin & Stephen D. Sugarman eds., 1993). To be sure, some smokers today might understandably gripe that the tobacco makers failed to provide them an adequate warning about the risks and addictive nature of the product, especially those people who started smoking as youths. But the United States Supreme Court concluded that Congress
has pre-empted those tort claims (at least for those who started smoking after 1965) by deciding that the legally required warnings on cigarette packages are sufficient. See Cipollone v. Liggett Group, 505 U.S. 504 (1992). Those who started smoking before the warnings appeared
have different legal problems. Some find it hard to prove that the companies themselves knew of the dangers at the time the victim began
using the product. Most also confront a cause in fact problem convincing the jury that they would not have started smoking had they been
warned. On this score, their continued smoking in the face of the warnings, notwithstanding claims of addiction, will frequently doom their
cases.
n54 Perhaps you would be held contributorily negligent for buying the product and have your damages reduced accordingly.
n55 O'Brien v. Muskin Corp., 463 A.2d 298 (N.J. 1983). Whether the plaintiff could also be held contributorily negligent is another matter.
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31 Val. U.L. Rev. 833, *
n56 The New Jersey legislature has restricted O'Brien by statute. Now that statute permits a product to be condemned essentially only
where the product is "egregiously unsafe," of "little or no usefulness" and the ordinary user "cannot reasonably be expected to have
knowledge of the product's risks, or the product poses a risk of serious injury to persons other than the user or consumer." N.J. Stat. Ann.
2A:58C-3 (West 1996). The proposed Restatement (Third) of Torts: Products Liability, however, does not appear to give such product makers a "warnings" escape hatch. Restatement (Third) of Torts: Products Liability 2 cmt. d (Tenative Draft No. 2, 1995).
n57 Restatement (Second) of Torts 342 (1965).
n58 Compare Restatement (Second) of Torts 341, 342 (1965) (regarding licensees) with 341A, 343, 343A (regarding invitees).
n59 See, e.g., Rowland v. Christian, 443 P.2d 561 (Cal. 1968).
n60 In the leading Rowland case, for example, there is every reason to believe that the apartment-dweller host would have satisfied her obligation to exercise due care had she warned her guest of the hidden danger in the bathroom. Id. at 567.
n61 See, e.g., Carter v. Kinney, 896 S.W.2d 926 (Mo. 1995).
n62 This example is loosely based on Heldman v. Uniroyal, Inc., 371 N.E.2d 557 (Ohio Ct. App. 1977).
n63 A leading case is Kline v. 1500 Mass. Ave. Apartment Corp., 439 F.2d 477 (D.C. Cir. 1970). See also Woolston v. Wells, 687 P.2d
144 (Or. 1984); Harrison v. Taylor, 768 P.2d. 1321 (Idaho 1989); Ward v. K Mart Corp, 554 N.E.2d 223 (Ill. 1990); Tharp v. Bunge Corp.,
641 So. 2d 20 (Miss. 1994); Bertrand v. Alan Ford, Inc., 537 N.W.2d 185 (Mich. 1995).
n64 See generally Restatement (Second) of Torts 343A(1) (1965).
n65 See generally Latin, supra note 9.
n66 See Howard A. Latin, Problem-Solving Behavior and Theories of Tort Liability, 73 Cal. L. Rev. 677 (1985).
n67 This discussion is based on Camacho v. Honda Motor Co., 741 P.2d 1240 (Colo. 1987).
n68 See generally Aaron D. Twerski & Neil B. Cohen, Informed Decision Making and the Law of Torts: The Myth of Justiciable Causation, 1988 U. Ill. L. Rev. 607.
n69 Id.
n70 I draw this example from Kenneth W. Simons' discussion, supra note 1; although he sees this as a case of true assumption of risk, I find
it better understood as a matter of "no cause."
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31 Val. U.L. Rev. 833, *
n71 Dias v. Daisy-Heddon, 390 N.E.2d 222 (Ind. Ct. App. 1979). For a further discussion, see Latin, supra note 9, at 1267-68.
n72 See W. Page Keeton et al., Prosser and Keeton on the Law of Torts 427 (5th ed. 1984).
n73 Id. at 429-30.
n74 Prosser considered this argument "rubbish." Id. at 431.
n75 See, e.g., Cohen v. McIntyre, 20 Cal. Rptr. 2d 143 (Cal. 1993) (veterinarian injured by dog bite); Hacker v. City of Glendale, 20 Cal.
Rptr. 2d 847 (Cal. Ct. App. 1993) (professional tree trimmer electrocuted by power line); Nunez v. R'Bibo, 260 Cal. Rptr. 1 (Cal. Ct. App.
1989) (gardener injured on a ladder); Nelson v. Hall, 211 Cal. Rptr. 668 (Cal. Ct. App. 1985) (veterinary assistant injured by dog bite). But
see Neighbarger v. Irwin Industries, 882 P.2d 347 (Cal. 1994) (rejecting the application of both the "no duty" rule and the "firefighter's" rule
to an oil refinery's safety employees who were injured fighting a fire that the defendant negligently set); Davis v. Cashler, 14 Cal. Rptr. 2d
679 (1992) (dog handler was bit by injured dog).
n76 Restatement (Second) of Torts 281(b) cmt. c (1965).
n77 Id. 281(b) cmts. e, f.
n78 Id. 440.
n79 Stultz v. Benson Lumber Co., 59 P.2d 100 (Cal. 1936).
n80 This discussion is based on Ventricellli v. Kinney System Rent A Car, 383 N.E.2d 1149 (N.Y. 1978).
n81 For a recent decision involving a professional rescuer that follows this general form of analysis, see Bryant v. Glastetter, 38 Cal. Rptr.
2d 291 (Cal. Ct. App. 1995).
n82 Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928).
n83 See, e.g, Giorgi v. Pacific Gas & Elec. Co., 72 Cal. Rptr. 119 (Cal. Ct. App. 1968).
n84 See, e.g., the views of Justice Tobriner in Walters v. Sloan, 571 P.2d 609 (Cal. 1977) (Tobriner, J., dissenting). See also N.J. Stat. Ann.
2A:62A-21 (West Supp. 1996) (discussed in Boyer v. Anchor Disposal, 638 A.2d 135 (N.J. 1994)).
n85 I have put aside here the possible role of a defense of "assumption of risk" in cases where plaintiffs voluntarily encounter ultrahazardous activities for which the defendant would otherwise be strictly liable. Nor have I considered the role for an entirely new doctrine of as-
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31 Val. U.L. Rev. 833, *
sumption of risk in a regime of the sort imagined by Judge Calabresi in which the goal of the system were to identify the "cheapest cost
avoider." See generally Guido Calabresi, The Costs of Accidents (1970).
n86 See, e.g., Lestina v. West Bend Mut. Ins. Co., 501 N.W.2d 28 (Wis. 1993).
n87 See Hana Miura, Lestina v. West Bend Mutual Insurance Co.: Widening the Court as a Playing Field for Negligent Participants in
Recreational Team Contact Sports, 1994 Wis. L. Rev. 1005, at 1008-11; Yancy v. Superior Court, 33 Cal. Rptr. 2d 777 (Cal. Ct. App. 1994)
(treating discus-throwing injuries to fellow participants as subject to ordinary negligence principles). Some cases have also distinguished
between injuries involving co-participants and those involving students and teachers. See, e.g., Fidopiastis v. Hirtler, 41 Cal. Rptr. 2d 94
(Cal. Ct. App. 1995).
n88 See, e.g., Knight v. Jewett, 834 P.2d 696 (Cal. 1992).
n89 Id.
n90 See, e.g., Ross v. Clouser, 637 S.W.2d 11, 14 (Mo. 1982); Kuehner v. Green, 436 So. 2d 78, 80 (Fla. 1983); Marchettti v. Kalish, 559
N.E.2d 699, 703-04 (Ohio 1990); Connell v. Payne, 814 S.W.2d 486, 488 (Tex. Ct. App. 1991).
Page 164
998 of 999 DOCUMENTS
Copyright (c) 2014 Villanova University
Jeffrey S. Moorad Sports Law Journal
2014
Villanova Sports and Entertainment Law Journal
21 Jeffrey S. Moorad Sports Law Journal 369
LENGTH: 7440 words
ARTICLE: WHO LET THE DOGS OUT: SHOULD A STADIUM OWNER BE HELD LIABLE FOR INJURIES
SUSTAINED FROM A MASCOT'S ERRANT HOT DOG TOSS?
NAME: Joshua D. Winneker*, David Gargone** & Sam C. Ehrlich***
BIO: * Joshua D. Winneker, JD, Assistant Professor, Misericordia University.
** David Gargone, Ed.D, Assistant Professor, Misericordia University.
*** Sam C. Ehrlich, JD Candidate, Thomas Jefferson School of Law.
LEXISNEXIS SUMMARY:
... Mascot Antics The key to the above cases is that any injury from fly balls and bats outside of the stadium owner's
protected seating is a risk that is an obvious and known risk that was inherent to the game of baseball, thus precluding
the spectators' lawsuits. ... Specifically, the court stated: Thus, foul balls represent an inherent risk to spectators attending baseball games. ... If the Missouri Supreme Court rules in favor of Coomer, it will have widespread implications to all stadium owners throughout the country, and will likely force many owners to change their practices as it
pertains to mascots and other term personnel that engage with fans during a game. ... The Missouri Court of Appeals
believed that Sluggerrr's actions were "customary" at Royals' games, but not inherent to the sport of baseball. ...
Fourth, while it may seem unfair that this particular plaintiff was able to bring a lawsuit for an injury that was caused
during an in-game activity that was customary to the Royals' games since 2000, and that he admitted to attending 175
Royals' games, this actually further proves the point that mascot antics are not inherent to baseball itself.
TEXT:
$=P369
I. Introduction
Yes, you read that correctly. Imagine you are at a professional baseball game with your family, and you are enjoying
the atmosphere and all that goes into the production of a Major League game. Now imagine that the team's mascot is
running around and tossing items into the stands to help the fans further enjoy their experience; a relatively common
occurrence in professional sports these days. You, unfortunately, do not get to enjoy this experience though because you
get hit in the eye with a hot dog wrapped in tin foil as a result of the mascot's errant throw into the stands. This alleged
hot dog "battery" then causes you to suffer a detached retina, loss of vision and a subsequent cataract requiring two surgeries to repair all of the damage. When you went to the stadium that day, would you have ever thought that this could
happen to you? Getting hit with a foul ball or a bat would be a possibility, but a hot dog? Most likely not.
Although this does not seem real, this is exactly what happened to John Coomer, who is currently embroiled in a
lawsuit against the Kansas City Royals for his eye injury sustained in September 2009, when the Royals' mascot, Sluggerrr, hit Coomer with a "behind the back" hot dog toss. Coomer's case is pending in the Missouri Supreme Court after
he lost at the trial court, but subsequently won at the Missouri Court of Appeals. This impending decision, while on its
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face seems trivial because of the nature of the object causing the harm, can actually have widespread implications pertaining to spectator liability at baseball games. In many jurisdictions, baseball stadium owners have been protected from
spectator lawsuits by a combination of the "baseball limited duty rule" and the fans' assumption of risk. n1 Here, the
question is whether the mascot's antics of throwing promotional items into the stands are considered to be $=P370 inherent and essential to the game of baseball itself such that a fan assumes the associated risk of their harm. If so, the
stadium owners will continue to be protected from liability and the injured spectators will be without recourse. But the
Missouri Court of Appeals refused to give the Royals this protection by ruling that Sluggerrr's hot dog toss was not an
obvious and known risk associated with attending a baseball game.
This article argues that the Missouri Supreme Court should affirm this decision because while mascot activities
during a game are customary at most professional ball parks, it does not rise to the level of an obvious and known risk
that is inherent to the sport of baseball itself. Thus, the Court should put stadium owners throughout the country on notice that they must closely monitor or alter the currently condoned practices of their mascots or else face potential liability.
Part I of this article will discuss the development of baseball's limited duty rule and the assumption of risk doctrine.
Part II will address mascot antics at baseball games. Part III will analyze Coomer's case currently pending before the
Missouri Supreme Court and Part IV will provide reasoning for how the Missouri Supreme Court should rule.
II. Baseball's Limited Duty Rule and the Assumption of Risk Defense
Being injured by a flying object while attending a baseball game is not a novel concept. Fans have been hurt by foul
balls or pieces of a bat (or the whole bat) for years, and stadium owners have been consistently forced to defend these
types of lawsuits. n2 These lawsuits have all been grounded in tort law under a negligence theory. n3 The injured spectator
would argue that the stadium owner failed to exercise reasonable care in protecting the safety of the patrons at the event,
and that the lack of care resulted in the patron being harmed. n4
From very early on, courts found it unfair to hold a stadium owner liable for an injury that was simply a known part
of the game and part of the fan experience. n5 Almost ninety years ago, coincidentally, $=P371 Missouri led the way in
creating protection for stadium owners against these types of lawsuits in a pair of seminal cases. In Crane v. Kansas
City Baseball & Exhibition Co., the plaintiff, injured by a foul ball, had purchased an unreserved grandstand seat,
which in those days entitled him to a choice between sitting behind home plate in seats protected by netting, and sitting
along the foul lines in the "unprotected" section of the grandstand. n6 In the course of trial, both sides had agreed to a
stipulated statement of facts that said: "Baseball is our national game, and the rules governing it and the manner in
which it is played and the risks and dangers incident thereto are matters of common knowledge." n7
The court found this stipulation to be extremely important, stating that the plaintiff's agreement with this statement
"justifies the conclusion that he was no novice at the game but was familiar with the risks and dangers incident in the
situation of the spectator occupying a seat in the grand stand." n8 In ruling that the plaintiff assumed the risk of danger by
choosing to sit in the unprotected area, the court stated that "the fact that the general public is invited to attend these
games, that hard balls are thrown and batted with great force and swiftness, and that such balls often go in the direction
of the spectators," the duty of the stadium operators merely includes "providing seats protected by screening from wildly thrown or foul balls for the use of patrons who desired such protection." n9
Limitations to this rule were set forth a year later in Edling v Kansas City Baseball & Exhibition Co., again in Missouri, when the plaintiff was struck by a foul ball while sitting behind the catchers' box at a Kansas City Blues game in
the old American Association. n10 The Blues organization had put up chicken netting behind home plate to protect the
grandstand seats in this area, but the netting had become worn and rotten over time, and large holes had developed in
areas where foul balls were frequent. n11 The foul ball in question had passed through one of these holes, striking the
plaintiff in the face and breaking his nose, causing an alleged $ 3,500 in damages. n12
$=P372 Citing Crane, the court in Edling ruled that the stadium owner had met its duty by providing protection to
the area of the grand stand "most exposed to the battery of foul balls," which would give spectators implied assurance
that these seats were reasonably protected. n13 While the court stated that other than this protection, there was no duty of
care to protect spectators from being hit by foul balls, a duty of care was breached by allowing the netting to become
old and rotten. n14
"Baseball's limited duty rule," as established in Missouri by Crane and Edling, has since spread to other states in
various situations. n15 In 1935, a fourteen-year-old girl was struck and injured by a foul ball while watching a game from
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21 Jeffrey S. Moorad Sports Law Journal 369
an unprotected seat at Seals Stadium in San Francisco. n16 Citing Edling, the California Supreme Court ruled that management is not required to protect spectators from injury by foul and thrown balls and is in fact obligated to provide
screening for all seats since "many patrons prefer to sit where their view is not obscured by a screen." n17 Along these
lines they ruled that the girl, a high school athlete who had attended the game alone, and stated at trial that she took the
unscreened seat knowing that she would be in danger of being struck by a batted ball, had assumed the risk of injury and
precluded recovery of damages. n18
While the limited duty rule has generally been applied broadly in most game situations, the courts have declined to
make it a blanket rule for everything that occurs in the grandstand. In Cincinnati Baseball Club Co. v. Eno, the plaintiff
was struck by a thrown ball during batting practice in between the two games of a double header. n19 While reversing a
summary judgment ruling in favor of $=P373 the club, the Supreme Court of Ohio said that the early cases establishing
the limited duty rule were based "upon the proposition that the plaintiff had such knowledge of the dangers incident to
the game itself that she 'assumed the risk' or was guilty of negligence as a matter of law in sitting in an unscreened seat
at the game." n20 While holding up Crane as relevant and important law, the court ruled that since the specific circumstances created by having numerous groups of players throwing balls around during an intermission period "differ so
essentially" from these cases, a question of fact still existed as to whether the plaintiff was aware of the particular danger caused by the circumstances in question. n21
Furthermore, in Jones v. Three Rivers Management Corp., a fan was hit by a ball hit in batting practice as she was
walking around the concourse on the stadium's opening day. n22 Differing from previous cases, the Supreme Court of
Pennsylvania noted that "even in a 'place of amusement' not every risk is reasonably expected" and held that the limited
duty rule was limited to injuries incurred "as a result of risks any baseball spectator must and will be held to anticipate."
n23
Under this notion, they ruled that baseball's limited duty rule should only apply to risks which are "common, frequent
and expected." n24 This decision has been directly cited by the Third Circuit and appellate courts in other states. n25
Baseball's limited duty rule has thus developed to allow stadium owners to provide protective seating in the areas of
the stadium that are high risk and potentially dangerous to the fans. n26 Once the stadium owner has sufficiently fulfilled
that duty, if a spectator is outside of the protected seating and is injured by a foul ball or bat flying into the stands, the
stadium owner will not be held $=P374 liable because the stadium owner had fulfilled his or her limited duty to the patrons. n27 The court reasoned that the stadium owner exercised reasonable care to cut down on foreseeable potential injuries by providing protected seating, and if a patron leaves that seating, the patron then assumes the risk of injuries that
are inherent in the sport of baseball. n28 Therefore, the stadium owner should not be held accountable for a risk of injury
that the fan assumed prior to even attending the game.
The modern day limited duty rule is perhaps best exemplified in Turner v. Mandalay Sports Entertainment LLC,
where Mrs. Turner and her husband went to see the minor league Las Vegas 51's play at their local stadium. n29 While at
the game, Mrs. Turner left her seat to buy an alcoholic beverage at one of the bars within the stadium. n30 As she was
waiting for her drink, she was struck in the face $=P375 with a foul ball knocking her unconscious, breaking her nose,
and causing facial lacerations. n31 Mrs. Turner then sued the stadium owner, claiming that her injuries were the result of
negligence. n32 The trial court ruled in favor of the defendants and the Nevada Supreme Court subsequently agreed. n33
Specifically, the Nevada Supreme Court adopted baseball's limited duty rule for their state. n34
The court explained that as long as the stadium owner undertakes two necessary steps, then it will fulfill its limited
duty to the patrons. n35 First, the stadium owner must provide a "sufficient amount of protected seating for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion." n36 Next, the stadium owner
must provide "protection for all spectators located in the most dangerous parts of the stadium," where there is a high risk
of injury from foul balls and bats. n37 In the instant case, Mrs. Turner chose not to sit in protected seating, and instead
went into the beer garden part of the stadium. n38 The court found that the beer garden was not a dangerous part of the
stadium such that Mandalay had to provide protection there as well. n39 Therefore, the court held that Mandalay had fulfilled its limited duty to Mrs. Turner and the rest of the patrons, and thus, it cannot be subject to liability for a negligence claim caused by an errant foul ball. n40 The court explained that foul balls are a known risk when entering a baseball game and Mrs. Turner assumed that risk when she chose not to sit in protected seating. n41
Currently, baseball's limited duty rule is viewed as the "majority rule" when courts face spectator injuries at baseball games and has $=P376 been adopted in at least 16 states. n42 Additionally, at least four states: New Jersey, Arizona,
Colorado and Illinois have passed laws codifying the rule. n43 Finally, even as courts around the country have shifted
from assumption of the risk to the more plaintiff-friendly comparative negligence standard, baseball's limited duty rule
has survived without much effect. n44
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III. Mascot Antics
The key to the above cases is that any injury from fly balls and bats outside of the stadium owner's protected seating is
a risk that is an obvious and known risk that was inherent to the game of baseball, thus precluding the spectators' lawsuits. But, as noted above, courts have been reluctant to protect stadium owners when the risk is not obvious or known
to the spectator. n45 The question here is whether Sluggerrr's antics were inherent to baseball such that Coomer assumed
the risk of being injured by the mascot. Other cases addressing mascot antics have ruled in favor of the spectator.
Specifically, the leading case on the antics of a mascot is Lowe v. California League of Professional Baseball,
which held, as a matter of law, that the actions of a mascot are not inherent to the game of $=P377 baseball. n46 In Lowe,
the mascot ("Tremor" the dinosaur) hit a fan several times with its "tail" during a minor league baseball game, causing
the spectator to be distracted from the game and unable to react to a foul ball, which subsequently hit the spectator in
the face. . n47 The fan sued the stadium owner and the stadium owner responded that it cannot be liable because it had
satisfied its limited duty by providing adequate protective seating that the plaintiff failed to use. n48 The court ruled that
while foul balls are an inherent risk at a baseball game and are essential to the game, the presence of the mascot is not
inherent or essential to the game. n49 Specifically, the court stated:
Thus, foul balls represent an inherent risk to spectators attending baseball games. Under Knight, such risk is assumed. Can the same thing be said about the antics of the mascot? We think not. Actually, the declaration of Mark
Monninger, the person who dressed up as Tremor, recounted that there were occasional games played when he was not
there. In view of this testimony, as a matter of law, we hold that the antics of the mascot are not an essential or integral
part of the playing of a baseball game. In short, the game can be played in the absence of such antics. n50
The court further stated that the mascot's antics were a marketing tool and that "mascots are needed to make money
... but are not essential to the baseball game". n51 While simply having a mascot in a stadium may be a "common phenomena" n52 at a baseball game, it does not rise to the level of being inherent to the sport itself, such that the sport cannot
go on without them. Without that aspect, a spectator cannot be expected to assume the risk of mascots' antics.
Although the Lowe decision is a California appellate decision, it correctly acknowledged that a mascot's presence
and antics are not essential to the game of baseball and this decision should be extended by the Missouri Supreme
Court.
$=P378
IV. Coomer v. Kansas City Royals
A. Background and Trial Decision
On September 9, 2009, Coomer went to a Royals game with his father. n53 In order to get closer to the game, instead of
sitting in their ticketed seats, Coomer and his father sat in empty seats six rows behind the third base dugout. n54 Between
the third and fourth innings, the Royals conducted their "Hotdog Launch". n55 This Hotdog Launch had been a mainstay
at Royals games since 2000. n56 The Royals would throw out between 20-30 hotdogs either through an air gun or by
hand. n57 The hotdogs shot through the air gun were wrapped in bubble wrap but the ones thrown by hand were in tin
foil. n58 Sluggerrr, the mascot, would use different types of throws, including "behind the back" to entertain the fans. n59
On the day Coomer was injured, Sluggerrr was standing on the third base dugout launching the hot dogs and Coomer
watched as he and his father were sitting directly behind the dugout. n60 Coomer admitted that he saw Sluggerrr make a
motion with his arm behind his back but that he looked away for a split second to look at the scoreboard. n61 While
looking away, he felt something hit him in the face, knocking off his hat. n62 Two days later, Coomer had a problem with
his vision which turned out to be a detached retina that required surgery to repair. n63 Following the surgery, Coomer lost
vision in his eye for three weeks, later developed a cataract in that same eye, and had another surgery to correct the cataract and place an artificial lens in his eye. n64
Coomer then filed suit against the Royals alleging that the Royals were negligent in failing to exercise reasonable
care through its employee/agent, the mascot Sluggerrr. n65 The Royals responded $=P379 that they fulfilled their limited
duty and therefore the doctrine of assumption of risk applies as a defense to Coomer's negligence action. n66 The Royals
argued that Sluggerrr's hot dog flinging antics were customary and had become a part of a Royals' game experience. n67
Coomer's case eventually made it to trial and the jury deliberated for one hour and returned a verdict in favor of the
Royals. n68 Specifically, the jury found that Coomer himself was 100% liable for not being aware of his surroundings,
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which the jury believed actually caused the damages. n69 Coomer appealed the decision all the way up to the Missouri
Supreme Court.
B. Missouri Court of Appeals Decision/Missouri Supreme Court
On appeal, Coomer argued that the trial court erred in submitting the assumption of risk defense to the jury because
"the risks created by a mascot throwing promotional items do not arise from the inherent nature of a baseball game." n70
The Court of Appeals first noted that being hit by a baseball is a risk inherent to the game, but found that being hit in the
face with a hot dog was not a "well-known incidental risk of attending a baseball game." n71 Thus, the court ruled that the
plaintiff could not have consented to and voluntarily assumed this risk simply by attending the game. n72
$=P380 The Royals disagreed and asserted that the Hotdog Launch was a customary activity at the games, and
therefore, Coomer assumed this risk by coming to the game. n73 Specifically, the Royals asserted that since Coomer admitted to attending 175 baseball games at Royals Stadium and saw promotional items thrown at baseball games, he
knew it was a part of the baseball/fan experience. n74 The Royals also explained that the Hotdog Launch was not a new
activity as it had been in practice since 2000. n75
Although the Missouri Court of Appeals recognized that the Hotdog Launch was a customary activity at Royals
games, it did not "equate to a patron's consent to the risks of being hit by a promotional item." The court believed that
"inherent risks are those that inure in the nature of the sport itself" and represent dangers that are "known and appreciated," are "perfectly obvious or fully comprehended" such that the plaintiff can intelligently acquiesce to the risk." n76
The Court of Appeals then reversed the trial court and remanded the case for further proceedings. n77 The Royals
appealed the decision to the Missouri Supreme Court. n78 In September 2013, the Missouri Supreme Court heard oral
arguments on this issue. n79 Specifically, the Missouri Supreme Court is deciding whether to extend baseball's limited
duty rule to include the negligent actions of the teams' mascots. n80 If the Missouri Supreme Court rules in favor of
Coomer, it will have widespread implications to all stadium owners throughout the country, and will likely force many
owners to $=P381 change their practices as it pertains to mascots and other term personnel that engage with fans during
a game.
V. The Missouri Supreme Court Should Uphold
the Court of Appeals
This case boils down to one question: are mascots' antics inherent in the game of baseball? The Missouri Court of Appeals believed that Sluggerrr's actions were "customary" at Royals' games, but not inherent to the sport of baseball. This
is in-line with the Lowe decision in California. When considering the court's analysis of the facts of the case, the Missouri Court of Appeals is correct for several reasons.
First, although having mascots at baseball games providing entertainment to the fans is something that most fans
would expect to see at a game, the mascots themselves are not needed in order to play the game. For example, three
Major League Baseball franchises currently do not have official mascots that are used to promote the team or are present during baseball games, showing that while mascots can make a baseball game a more enjoyable experience, they
are certainly not as inherent to the sport as a foul ball or home run. n81 The New York Yankees, Los Angeles Dodgers,
and Los Angeles Angels do not feel it necessary to use mascots for entertainment purposes, yet each team continues to
play games every season. Thus, they are not essential to the sport, and their corresponding conduct would not be inherent to the game. With or without mascots, the game of baseball can still be played.
Second, not every team in the league has interactive mascots such that any fan can go to any game in the country
and expect to see the same behavior from the various teams' mascots. This is in stark contradiction to the fact that every
fan that attends any game in the country would expect to see foul balls and bats flying into the stands as a natural part
of the game. Thus, in order for the court to find that the mascots' antics were inherent to the game, the court would have
to determine a baseline of mascot antics that all of them follow in order for it to be an obvious and known part of the
game. This would be impossible to do given that every mascot on every team engages in different activities. n82
$=P382 Third, the assumption of risk doctrine, in this case, is specific to the game of baseball, and does not specifically identify the professional level as its only level of application. The risk of foul balls or bats exiting the field of
play is existent at all levels of baseball, not just the professional levels. The same cannot be said about the existence of
mascots. They are most prevalent at professional baseball games, but not an inherent aspect of the game of baseball.
Individuals attending baseball games at all levels become immediately aware of the risks associated with attending a
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21 Jeffrey S. Moorad Sports Law Journal 369
baseball game. However, they may not be accustomed to the mascot antics or interactions they may encounter at a professional baseball game. It would be difficult for a first time spectator at a professional baseball game to understand the
role of a mascot and not be distracted by their antics. Furthermore, each professional franchise's mascot is unique in its
interactions with the crowd, thus leading to an even greater difficulty in establishing what actions are to be assumed as
expected at a game.
Fourth, while it may seem unfair that this particular plaintiff was able to bring a lawsuit for an injury that was
caused during an in-game activity that was customary to the Royals' games since 2000, and that he admitted to attending
175 Royals' games, this actually further proves the point that mascot antics are not inherent to baseball itself. A Hotdog
launch in Kansas City may be customary, but unless every team in every city is doing the same routine as a part of being able to play the baseball game, it simply is not an inherent part of the sport.
$=P383
V. Conclusion
Baseball is a game that is played not only by professionals, but also by children of all ages. Spectators of the game
learn early on that on-field play can lead to a dangerous spectator environment off the field. The inherent risks of the
game of baseball include baseballs exiting the field of play as foul balls, errant throws, or homeruns, and whole or
fragmented baseball bats exiting the field when bats are broken or released during a batter's swing. The assumption of
risk doctrine generally protects stadium operators from negligence when patrons are injured by these commonplace occurrences in a baseball game. Stadium operators using this same doctrine to justify the actions of mascots suggests that
mascots are as inherent to the game of baseball as foul balls.
If mascots were inherent to the game of baseball, they would be part of the spectator experience at all levels of the
game. There are few, if any, little league or high school baseball games with mascots entertaining the crowds. Two of
the most historic professional baseball franchises in the history of the game do not even have mascots roaming their
stands. If the New York Yankees and Los Angeles Dodgers do not view mascots as a vital part of the game of baseball,
it is clear mascots are not an inherent risk of the game of baseball.
It is also difficult to identify which mascot actions would be deemed inherent to its act since each mascot entertains
spectators with its own antics. One of Sluggerrr's specific antics is the Hotdog Launch at Kansas City Royals games.
Other mascots may throw t-shirts, popcorn, hats, or other souvenirs to patrons at the ballpark. These actions may be part
of a team's attempt to entertain the crowd, but are not required to enjoy a baseball game. This is not to suggest that all
mascots are potential liabilities, but those that directly engage fans may be liable for their actions.
If the Missouri Supreme Court decides to rule in favor of the Royals, they will be creating a situation where mascots' antics would need to be determined on a case-by-case basis that is specific to each team in each league at all levels
of professional baseball. This would be unruly in its application and defeats the purpose of determining that something
is inherent to the sport itself.
Legal Topics:
For related research and practice materials, see the following legal topics:
TortsNegligenceDefensesAssumption of RiskAthletic & Recreational ActivitiesTortsPremises Liability & PropertyGeneral Premises LiabilityPremisesRecreational FacilitiesSports FacilitiesTortsStrict LiabilityHarm Caused by AnimalsDefenses
FOOTNOTES:
n1. See generally Turner v. Mandalay Sports Entm't, LLC, 180 P.3d 1172 (Nev. 2008).
n2. See, e.g., Crane v. Kansas City Baseball & Exhibition Co., 153 S.W. 1076 (Mo. Ct. App. 1913); Edling v. Kansas City Baseball & Exhibition Co., 168 S.W. 908 (Mo. Ct. App. 1914).
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21 Jeffrey S. Moorad Sports Law Journal 369
n3. See Crane, 153 S.W. at 1076; see also Edling, 168 S.W. at 908.
n4. See Crane, 153 S.W. at 1076; see also Edling, 168 S.W. at 908.
n5. See James C. Kozlowski, Majority "Baseball Rule" Limits Spectator Liability, Parks & Recreation Mag. (May 1, 2013),
http://www.parksandrecreation.org/2013/May/Majority-%E2%80%9CBaseball-Rule%E2%80%9D-Limits-Spectator-Lia bility/.
n6. See Crane, 153 S.W. at 1077-78.
n7. Id. at 1077-78.
n8. Id.
n9. Id.
n10. See Edling, 168 S.W. at 909.
n11. Id.
n12. See id. (discussing Plaintiff's injury and alleged damages).
n13. See id. at 331-32 (noting Defendant recognized duty to protect patrons from foul balls by screening portion of grandstand, and thus
impliedly assured reasonable protection to patrons seated behind screen) (citing Crane, 153 S.W at 1077 ("Duty of defendants towards their
patrons included that of providing seats protected by screening from wildly thrown or foul balls for the use of patrons who desired such protection.")).
n14. See id. at 332 (noting duty of reasonable care to ensure screen was free of defects).
n15. See, e.g. Bellezzo v. State, 851 P.2d 847 (Ariz. Ct. App. 1992) (applying limited duty rule to spectators who had received complementary tickets).
n16. See Quinn v. Recreation Park Ass'n, 46 P.2d 144, 145 (Cal. 1935) (discussing facts and procedural history of case).
n17. See id. at 146 (noting management required to exercise ordinary care to protect patrons from "batted or thrown balls").
n18. See id. at 147 (noting accepting unscreened seat "even temporarily" with knowledge of danger constituted assumption of risk of injury).
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21 Jeffrey S. Moorad Sports Law Journal 369
n19. See Cincinnati Baseball Club Co. v. Eno, 147 N.E. 86, 88 (Ohio 1925) (discussing facts of case).
n20. See id. at 87 (discussing Crane decision).
n21. See id. at 88-89 (distinguishing Crane, holding whether plaintiff was guilty of contributory negligence was question of fact).
n22. See Jones v. Three Rivers Mgmt. Corp., 394 A.2d 546, 547-48 (Pa. 1978) (discussing facts of case and describing architecture of stadium).
n23. See id. at 550-51 ("Movies must be seen in a darkened room, roller coasters must accelerate and decelerate rapidly and players will bat
balls into the grandstand.").
n24. See id. (explaining limited duty rule does not affect duty of "sports facilities to protect patrons from foreseeably dangerous conditions
not inherent in the amusement activity").
n25. See, e.g., Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, at 32 (E.D. Pa. Feb. 11, 2008); Teneyck v.
Roller Hockey Colo., 10 P.3d 707, 708 (Colo. App. 2000); Friend v. Nationwide Mut. Ins. Co., No. 02AP-135, 2002 Ohio App. LEXIS
7212, at 4 (Ohio Ct. App., Franklin County Dec. 31, 2002).
n26. See Gil Fried & Robin Ammon Jr., Baseball Spectators' Assumption of Risk: Is It "Fair" or "Foul"?, 13 Marq. Sports L. Rev. 39, 61
(2002).
n27. See id. (discussing details of limited duty rule).
n28. For example, in Costa v. Boston Red Sox Baseball Club, Jane Costa, accompanied by three other people, arrived during the fifth inning of a game at Fenway Park, the home stadium for the Boston Red Sox. See Costa v. Boston Red Sox Baseball Club, 809 N.E.2d 1090,
1100 (Mass. App. Ct. 2004). During the bottom half of the inning, a foul ball was hit in the direction of the group striking the plaintiff in the
face, and causing severe and permanent injuries. The plaintiff then filed suit against the Red Sox. Id. at 1091. In prosecuting her case, the
plaintiff brought in an expert witness, a professor of engineering, to illustrate the nearly impossible act of getting out of the way of the foul
ball that struck her face. Id. According to the expert witness, when factoring the distance the plaintiff was seated from the home plate area
and the speed of the foul ball, the plaintiff had less than 1.07 seconds to try and avoid being hit. Id. The plaintiff also claimed that she had no
prior knowledge of the game of baseball, and assumed that all foul balls just rolled off to the side of the home plate area. Id. (discussing
plaintiff's argument). Although the court felt that those circumstances made the incident a unique situation, the court found that a person of
normal intelligence should still understand that the possible risk of getting hit by a foul ball. Id. at 1093 (discussing court's reasoning in
reaching conclusion). Therefore, the court ruled in favor of the ball club by accepting the primary assumption of risk defense. Id. (holding
assumption of risk bar to recovery for plaintiff). Furthermore, in Tucker v. ADG, Inc., the plaintiff was injured during a home game for the
Oklahoma Redhawks professional baseball team. See Tucker v. ADG, Inc., 102 P.3d 660, 662 (Okla. 2004). There, the plaintiff was not
seated in the stands but was seated in a luxury suite above home plate. Id. (discussing facts of case). During the course of the game, a foul
ball was hit into the luxury suite area and struck the plaintiff in the face. Id. The plaintiff sued the stadium owner for negligence, but both the
trial and appellate courts ruled in favor of the defendants. Id. at 663-64. (discussing holding of case). The courts ruled that although the
plaintiff was not seated in the stands, the inherent risk of getting hit by a baseball is not eliminated because any spectator who chooses to
watch a baseball game should understand the risk of getting hit by a foul ball. Id. at 669 (reciting court's reasoning in reaching its holding).
n29. See generally Turner v. Mandalay Sports Entm't, LLC, 180 P.3d 1172, 1172 (Nev. 2008) (setting forth facts of case).
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21 Jeffrey S. Moorad Sports Law Journal 369
n30. See id. at 1174 (discussing factual background concerning plaintiff's claim).
n31. See id.
n32. See id. (summarizing plaintiff's legal argument).
n33. See id. (exploring procedural history of case as it stood before the court).
n34. See id. at 1176 (deciding to adopt limited duty rule in particular context).
n35. See Turner, 180 P.3d at 1175 ("The 'limited duty rule' ... places two important requirements on stadium owners and operators.").
n36. See id. (internal quotation omitted).
n37. See id.
n38. See id. at 1176 (reciting facts of case).
n39. See id. ("Here, the record establishes that foul balls occasionally fly into the Beer Garden, some parts of which have an obstructed
view of the field. The risk of an occasional foul ball, however, does not amount to 'an unduly high risk of injury.'").
n40. See id. (stating that "the limited duty rule establishes the totality of the duty owed by baseball stadium owners and operators to protect
spectators from foul balls within the confines of the stadium. Applying the rule to this case, we conclude that Mrs. Turner's negligence claim
fails as a matter of law.").
n41. See Turner, 180 P.3d at 1176 (stating that plaintiff's negligence claim fails because she choose "not to sit in a protected seating area").
n42. Jake Simpson, Idaho Court's Baseball Rule Balk Could Impact Other Sports, Law360 (Mar. 28, 2013, 6:53 PM),
http://www.law360.com/articles/427626/idaho-court-s-baseball-rule-balk-could-impact-other-sports.
n43. See N.J. Stat.§§ 2A:53A-43; 44; 45; 46; 47; 48 (2006); Ariz. Rev. Stat. § 12-554 (1999); Colo. Rev. Stat. § 13-21-120 (1994); 745 Ill.
Comp. Stat. 38/10 (1992). The limited duty rule does however have its critics. Specifically, the Idaho Supreme Court recently declined to
adopt the limited duty rule when a fan lost an eye after being struck by a foul ball during a minor league Boise Hawks' game in August
2008. See Rountree v. Boise Baseball, LLC, 296 P.3d 373 (Idaho 2013). The Court stated that there was no compelling public policy reason
requiring them to adopt the limited duty rule because injuries to fans at baseball games was not a common problem in Idaho. Id. at 378 ("We
find no compelling public policy requiring us to [adopt the Baseball Rule]"). Instead, the court allowed the injured fan to maintain a negligence action against the stadium owner. Id. at 380. The court noted that it was up to the state legislature to pass a limited duty rule for baseball stadium owners. Id. at 379. This case is a departure from the majority view and could likely be tied to the severity of the injury and not
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21 Jeffrey S. Moorad Sports Law Journal 369
the actual negligence of the stadium owner. Additionally, the limited duty rule has been extended to hockey as well. See Kozlowski, supra
note 5.
n44. See Lynne Reaves, Eye On the Ball: Injured Spectator Wins, 69 A.B.A. J. 1616 (1983).
n45. See Jones, 394 A.2d at 545. Similarly, in Maytnier v. Rush the court ruled that a plaintiff struck by a wild ball coming out of the bullpen would not be limited by the baseball rule since a spectator "does not assume the risk of being hit by a baseball he does not see, when
more than one ball is being used, regardless of whether the game is in progress or not." See Maytnier v. Rush, 225 N.E.2d 83, 91 (Ill. App.
Ct. 1967).
n46. See Lowe v. California League of Prof'l. Baseball, 65 Cal. Rptr. 2d 105, 111 (Cal. Ct. App. 1997).
n47. See id. at 106.
n48. See id.
n49. See id. at 111.
n50. Id.
n51. Id. at 108.
n52. Harting v. Dayton Dragons, 870 N.E.2d 766, 767 (Ohio Ct. App., Montgomery County 2007) (finding that San Diego Chicken mascot's antics were "common phenomena"); Gunther v. Charlotte Baseball, 854 F. Supp. 424, 426 (D.S.C. 1994) (noting that baseball games
"routinely involve" distractions, such as "giant team mascots").
n53. Coomer v. Kan. City Royals Baseball Corp., 2013 Mo. App. LEXIS 46, at 2 (Mo. Ct. App. Jan. 15, 2013).
n54. See id.
n55. See id.
n56. See id.
n57. See id.
n58. See id.
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21 Jeffrey S. Moorad Sports Law Journal 369
n59. See Coomer, 2013 Mo. App. LEXIS 46, at 2.
n60. See id. at 3.
n61. See id.
n62. See id.
n63. See id. at 3-4.
n64. See id.
n65. See Coomer, 2013 Mo. App. LEXIS 46, at 1. Coomer also argued that the hot dog injury was a battery, but the court rejected this
claim ruling that there was no intent to harm on Sluggerrr's part. See Reply to Plaintiff's Suggestions in Opposition to Defendant's Motion
for Summary Judgment at 5, Coomer v. Kan. City Royals Baseball Corp., No. 1016-CV4073, 2011 WL 1397165 (Mo. Cir. Jan. 11, 2011)
("Defendant is also entitled to summary judgment on plaintiff's claim for battery as plaintiff has failed to plead the requisite level of intent
and in any event impliedly consented to bodily contact associated with the Hotdog Toss.").
n66. See Answer and Affirmative Defenses to Plaintiff's Petition at P 3, Coomer v. Kan. City Royals Baseball Corp., No. 1016-CV04073,
2011 WL 1397165 (Mo. Cir. Mar. 24, 2010) (providing affirmative defenses applicable to all counts and all allegations in plaintiff's petition). Prior to the trial, the man dressed as Sluggerrr who hit Coomer with the hot dog was relieved of his duties, a new person was hired,
and that person was re-trained in a session led by the former Phillie Phanatic. See Kevin Underhill, New Royals Mascot Reportedly Training
to Avoid Further Hot-Dog Incidents, Lowering the Bar (Feb. 26, 2010),
http://www.loweringthebar.net/2010/02/new-royals-mascot-reportedly-training-to-avoid-further-hotdog-incidents.html.
n67. See Coomer, 2013 Mo. App. LEXIS 46, at 9 (explaining Royals' attempt to portray hot dog launching as customary practice at baseball games).
n68. See id. at 4 (describing verdict given and percentage of fault assigned to each party).
n69. See id. (describing percentage of fault jury allocated to Coomer).
n70. See id. at 6 (arguing that hot dog throwing is not inherent part of baseball experience).
n71. See id. at 9 (explaining how court reasoned being hit by a hot dog was not inherent or expected part of baseball as a whole despite being part of Royals' tradition).
n72. See id. at 9-10 (describing how plaintiff could not assent to something he was unaware of).
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21 Jeffrey S. Moorad Sports Law Journal 369
n73. See Coomer, 2013 Mo. App. 46, 9-10 (describing Royals' argument that hot dog launching was integral and expected part of their
games).
n74. See id. (supporting assertion from Royals that Coomer was aware of hot dog launch).
n75. See id. (explaining Royals' argument that hot dog launch was normal part of game). The Royals asserted that the hot dog toss was "an
integral part" of a Royals' game because it had occurred at every one of the 800 home games the Royals played since 2000 and that the fans
came to "love and respect it." Underhill, supra note 66.
n76. See Coomer, 2013 Mo. App. LEXIS 46, at 8 (describing courts' rationale for what is normally understood to be part of baseball).
n77. See id. at 16-17 (stating courts' decision to remand case for further proceedings).
n78. See Coomer v. Kan. City Royals Baseball Corp., 2013 Mo. LEXIS 170 (Mo. Apr. 30, 2013).
n79. See Bill Draper, Fan Hurt by Hotdog Sues Royals, ESPN.com (Nov. 1, 2013, 4:21 PM), http://espn.go.com/mlb/story/
/id/9911944/fan-injured-hot-dog-thrown-mascot-suing-kansas-city-royals.
n80. See Steve Silver, The Baseball Rule: How Duties to Spectators Continue to Evolve, Legal Blitz (Nov. 13, 2013),
http://thelegalblitz.com/blog/2013/11/19/the-baseball-rule-how-duties-to-spectators-continue-to-evolve/.
n81. See Ian Crouch, Baseball's Worst Mascots, New Yorker (Jan. 14, 2014),
http://www.newyorker.com/online/blogs/sportingscene/2014/01/why-is-base ball-so-bad-at-mascots.html (using fact that three major league
teams lack a mascot to show mascots are not needed in order to actually play a game).
n82. See List of Major League Baseball Mascots, available at http://en.wikipedia. org/w/index.php?title=List of Major League Baseball
mascots&oldid=6023027 06 (last visited May 6, 2014) (describing varying traditions and customs of different sports teams). Different teams
have different philosophies on game presentation, since each stadium tries to do things a little bit differently in order to be unique around the
league. For example, while many teams have mascots and/or cheer squads that use air guns and slingshots to toss souvenirs like t-shirts and
plush baseballs into the stands, some teams do not follow this practice. The New York Yankees, for example, have not had a mascot at all
since 1982 when they retired the short lived "Dandy." Mark Townsend, A Look back at 'Dandy' - the forgotten Yankees Mascot, Yahoo!
Sports (Nov. 17, 2013), http://sports.yahoo.com/blogs/mlb-big-league-stew/look-back-dandy-forgotton-yankees-mascot-183709893 - mlb.
html. Occasionally a mascot will take fan interaction to extreme levels; the NBA Houston Rockets' mascot Clutch is known for smashing
cakes in the faces of opposing fans every once in a while. See Chris Strauss, Houston Rockies Mascot Destroys Lakers Fan with Cake to
Face, USA Today.com (Jan. 9, 2013, 6:33 PM), http://www. usatoday.com/story/gameon/2013/01/09/nba-rockets-mascot-cake-attack/1820
181/. The Phillie Phanatic has the distinction of being the "most-sued" mascot in professional sports, having been sued by fans at least four
times in its tenure as the mascot for the Philadelphia Phillies, most recently in 2012 for allegedly picking up a fan out of a lounge chair in
which she was seated and throwing her in a hotel pool. See Barry Leibowitz, Phillie Phanatic Sued...Again, CBS News (June 13, 2012, 5:38
PM), available at http://www.cbsnews.com/news/phillie-phanatic-suedagain/.
Page 176
999 of 999 DOCUMENTS
Copyright (c) 2006 University of Virginia School of Law
Virginia Sports & Entertainment Law Journal
Fall, 2006
6 Va. Sports & Ent. L.J. 156
LENGTH: 11357 words
Note: Allocating the Risk Of Spectator Injuries Between Basketball Fans and Facility Owners
NAME: George D. Turner*
BIO: * B.A., Harvard University, 2004; J.D. (anticipated), Harvard Law School, 2008. The author thanks Prof. Roger
Abrams for introducing the subject and his parents for their constant support.
LEXISNEXIS SUMMARY:
... Yet only one reported case, decided nearly fifty years ago, has addressed the question of whether fans or facility
owners should bear the risk of injuries to spectators caused by players or equipment at professional basketball games. ...
The notion that a spectator assumes the risk of injury by choosing an unprotected seat is outdated and does not alone
provide adequate justification for barring recovery in baseball or any other sport. ... " The concept of limited duty continued to evolve, sometimes supplanting the doctrine of primary assumption of risk, and today the majority of courts
have adopted a two-part rule limiting a baseball facility owner's duty of care. ... Considering that the doctrines of limited
duty and primary assumption of risk are, as discussed below, virtually inseparable, it is not surprising that as courts extended the defense of primary assumption of risk to hockey, they also became increasingly willing to apply the Akins
rule to the sport. ... The limited duty rule's applicability to basketball depends first on whether the risks inherent to the
sport are "common, frequent and expected," an analysis virtually indistinguishable from that undertaken above to determine the applicability of primary assumption of risk. ... The risk of injury should thus be allocated between basketball fans and facilities under an Akins-type limited duty rule, where spectators assume the risks inherent to the sport as a
matter of law, modified to include a duty to warn. ...
TEXT:
[*156]
Introduction
A desperation full-court shot sails wide of the basket as time expires; a massive power forward dives into the stands
chasing a loose ball; a hard foul [*157] sends a streaking guard careening into the front row - these are but some of
the risks encountered by spectators at basketball games. Yet only one reported case, decided nearly fifty years ago, has
addressed the question of whether fans or facility owners should bear the risk of injuries to spectators caused by players
or equipment at professional basketball games. n1
The issue of whether an arena or stadium owner is liable in tort for spectator injuries has been widely addressed in
other sports including baseball, hockey, wrestling, and auto racing. n2 To succeed on a negligence claim against a facility
owner, a spectator must prove that (1) the owner owed the spectator a duty of care under the circumstances; (2) the
owner breached that duty; (3) the spectator suffered an injury; and (4) the owner's breach of duty proximately caused
the injury. n3 The elements of injury and proximate cause rarely present difficult problems of proof in sports premises
liability cases; instead, most disputes revolve around what the nature of the owner's duty is and whether that duty has
been breached. n4
A person who pays admission to view a sporting event is an "invitee" to whom the owner of the premises owes a
duty of reasonable care in conducting the entertainment. n5 An injured spectator often alleges that the facility owner has
breached this duty by not affording ample protection against the inherent dangers - such as foul balls or flying pucks -
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6 Va. Sports & Ent. L.J. 156, *
posed by the sport. The owner will usually respond by claiming that his duty, under the circumstances, was limited and
by raising the concomitant defense that the spectator assumed the risks inherent to the sport upon entering the premises.
The concept of limited duty approaches the liability issue from the owner's perspective by identifying a reasonable level
of requisite protection against spectator injury; the concept of assumption of risk proceeds from the standpoint of the
spectator and comprises two distinct doctrines. "Primary" assumption of risk bars recovery as a matter of law on the
basis of implied knowledge regardless of whether the plaintiff [*158] actually understood the risk. n6 "Secondary"
assumption of risk refers to the more intuitive notion that a plaintiff cannot recover when he knowingly assumes a risk
of harm arising from the negligent conduct of the defendant, n7 and therefore requires a factual inquiry into whether the
plaintiff had actual knowledge of the risk. n8
The defenses of limited duty and primary assumption of risk produce the same result, barring spectators from recovering damages, as a matter of law, for injuries resulting from risks inherent to the sport. For example, most courts
have long applied the doctrines of limited duty and primary assumption of risk to baseball. Thus, spectators assume the
risk of, and cannot recover for, injuries caused by foul balls. However, in sports where the inherent risks are less widely
known and not as obvious to the average spectator, courts have often held owners liable in the absence of proof that the
particular plaintiff had actual knowledge of the risk.
In McFatridge v. Harlem Globe Trotters, the only reported case addressing the issue of liability for spectator injuries caused by players or playing equipment at professional basketball games, the Supreme Court of New Mexico declined to extend the "baseball rule" of primary assumption of risk to basketball and held that the plaintiff could recover
for being struck by an errantly thrown ball. n9 However, because of its unusual facts and flawed analysis, McFatridge
should not be considered a meaningful precedent by the next court presented with the issue of allocating the cost of
basketball spectator injuries. This Note contends that, contrary to McFatridge, the doctrines of primary assumption of
risk and limited duty should bar recovery in basketball premises liability cases. Part I describes the evolution of primary
assumption of risk in baseball, examines the varying degrees of its application in other sports, and identifies the flaws
that make secondary assumption of risk an undesirable alternative. Part II introduces the limited duty rule and explains
the relationship between limited duty and primary assumption of risk. Part III discusses McFatridge and argues that
primary assumption of risk and limited duty should apply to basketball. Part IV concludes by suggesting several ways in
which courts could modify and improve the limited duty rule as it is currently conceived.
[*159]
I. Primary Assumption of Risk
A court can apply primary assumption of risk on either or both of two types of implied knowledge. First, a court could
impute that the injured spectator "must have known" of the risk because it was the subject of common knowledge. n10
Second, a court could find that a reasonable person in the plaintiff's position should have understood the risk because it
was obvious. n11 In either case - whether the risks were "matters of common knowledge" or those "which any person of
reasonable intellectual prowess could not help but realize" - the spectator is deemed to assume the risk of injury as a
matter of law. n12
A. The Baseball Rule
Most courts have recognized primary assumption of risk as a valid defense in baseball premises liability cases on the
presumption that the risk of being struck by a foul ball is common knowledge. As early as 1908, the Supreme Court of
Michigan, in Blakeley v. White Star Line, held:
"it is knowledge common to all that in these games hard balls are thrown and batted with great swiftness; that they are
liable to be muffed or batted or thrown outside the lines of the diamond, and visitors standing in position that may be
reached by such balls ... may be held to assume the risk." n13
Four years later, in Crane v. Kansas City Baseball & Exhibition Co., the Missouri Court of Appeals stated that "baseball is our national game, and the rules governing it and the manner in which it is played and the risks and dangers incident thereto are matters of common knowledge." n14 Following Blakeley, most courts have barred spectators from recovering damages when injured by foul [*160] balls by recognizing the defense of primary assumption of risk. All
spectators, regardless of their actual awareness, are imputed to have a certain amount of common knowledge. n15
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6 Va. Sports & Ent. L.J. 156, *
Many courts have also barred recovery on the concept of primary assumption of risk based on the judgment that the
risk of being struck by a foul ball is obvious to a reasonable person. In Brisson v. Minneapolis Baseball & Athletic
Ass'n, the Minnesota Supreme Court held that "no adult of reasonable intelligence ... could fail to realize that he would
be injured if he was struck by a thrown or batted ball [or] that foul balls were likely to be directed toward where he was
sitting." n16 More recently, in Bellezzo v. State, an Arizona court barred recovery for injuries suffered from a foul ball on
the basis of primary assumption of risk because "the lack of a screen is as obvious as the fact that the Grand Canyon is a
chasm, and the danger that a spectator hit by a foul ball may be injured is as evident as the likelihood that one who falls
into the Grand Canyon may be hurt." n17
However, a few courts have found an additional justification for this defense in cases where the injured spectator
had a choice of sitting in a protected or unprotected seat and opted for the latter. For example, in Quinn v. Recreation
Park Ass'n, the Supreme Court of California barred a fourteen-year-old girl struck by a foul ball from recovering because by accepting an unscreened seat she had assumed the risk of injury. n18 The notion that a spectator assumes the risk
of injury by choosing an unprotected seat is outdated and does not alone provide adequate justification for barring recovery in baseball or any other sport. Such a theory may have been applicable in the bygone era of professional baseball
when fans could actually choose their seats upon arriving at the ballpark, but today most fans no longer have such a
choice, as tickets generally assign spectators to specific seats. n19 Instead, the only relevant choice made by spectators
today is [*161] simply whether to attend a sporting event at all. As a result, the applicability of the defense of primary assumption of risk should not depend on an artificial consideration of whether a particular plaintiff could have chosen
a protected seat.
B. Primary Assumption of Risk in Sports Other Than Baseball
Primary assumption of risk is thus an appropriate defense in sports premises liability cases only if the risks inherent to
the sport are either (1) the subject of common knowledge or (2) obvious to a reasonable person. Courts have applied the
doctrine on one or both of these bases to varying degrees in sports other than baseball such as hockey, wrestling, and
auto racing.
1. Hockey
Courts initially declined to extend the baseball rule of primary assumption of risk to hockey and instead allowed facility owners to escape liability only by raising a defense of secondary assumption of risk in those cases where the plaintiff
had actual knowledge of the danger of errant pucks. n20 Some have argued that this early reluctance to protect the owners
of hockey arenas was the result of preferential treatment afforded our national pastime. n21 Although baseball has long
occupied a special place in the American legal system, n22 the courts' judgment that the baseball rule should not extend to
hockey was the result of what was, at the time, a reasonable determination that the risk of injury [*162] from flying
pucks was both less commonly known and less apparent than the risk of foul balls. n23 However, as hockey has grown
more obviously dangerous, n24 and as knowledge of its hazards has spread, n25 many courts have come to recognize primary assumption of risk as a valid defense. For example, in Nemarnik v. Los Angeles Kings Hockey Club, L.P., a California Court of Appeal overruled that state's long-accepted rule that primary assumption of risk was "inapplicable to
hockey" by barring a spectator injured by a deflected puck from recovering because "more than 50 years have elapsed"
and "professional ice hockey has grown in popularity" such that "ice hockey spectators face a known risk of being hit by
a flying puck." n26
2. Wrestling
Courts generally refuse to recognize the defense of primary assumption of risk as applicable to spectators injured at
wrestling matches. n27 Wrestling is less mainstream than either baseball or hockey, so it follows that courts do not consider the risk of being injured by a wrestler thrown from the ring to be a subject of common knowledge. n28 Perhaps
more surprisingly, courts have also [*163] concluded that although spectators often sit no more than a few feet from
the ring, the risk is not sufficiently obvious to impute knowledge of such risks to individual plaintiffs. n29 Instead, in suits
brought against owners of wrestling facilities, courts make case-by-case determinations of whether secondary assumption of risk should bar recovery based on the particular plaintiff's actual knowledge. For example, in Pierce v. Murnick
the Supreme Court of North Carolina held that a plaintiff injured by a wrestler tossed from the ring could not recover
because he was "an habitual spectator at such wrestling matches." n30
3. Auto Racing
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6 Va. Sports & Ent. L.J. 156, *
Spectator injuries at auto races are usually caused by debris flying into the crowd after a vehicle collides with an outer
restraining wall. n31 However, while injuries to spectators can be severe, they are relatively rare n32 and often the result of
the little-known fact that race cars are designed to come apart in accidents for the protection of the driver. n33 Therefore,
courts have determined that common knowledge does not provide an appropriate basis for applying primary assumption
of risk to auto racing. n34 Nor is the danger of flying debris particularly obvious to a reasonable person - while many
baseball fans bring their mitts to games hoping to catch fly balls, n35 auto racing spectators have little intention of participating in the action and can generally be expected to perceive the restraining walls as buffers that will keep the cars
(and their parts) at bay. Courts therefore usually reject a track owner's defense that the injured spectator assumed the
risk as a matter of law n36 and make a factual determination, as in wrestling cases, of whether the defense of secondary
assumption of risk should [*164] bar recovery. n37
C. The Flaws of Secondary Assumption of Risk in the Sports Premises Liability Context
Courts have thus often favored applying secondary assumption of risk and not primary assumption of risk in sports
premises liability cases outside baseball, assuming that the risks inherent to other sports, such as wrestling and auto racing, are less obvious and less widely known than those inherent in baseball. However, the courts' reluctance to recognize the defense of primary assumption of risk is also at least partially based on the intuitively sensible notion that a
default rule of secondary assumption of risk is necessary to ensure just results in those cases where it is clear that the
individual plaintiff could not have actually understood the risk of injury. n38 For example, it seems problematic to bar
recovery on the basis of primary assumption of risk when the injured spectator is a young child; indeed, even in baseball, where minors are often held to have assumed the risk of being struck by a foul ball as a matter of law under the
baseball rule, n39 courts are more likely to allow such cases to go to the jury for a determination of whether the child had
actual knowledge of the danger. n40
[*165] Yet despite the fact that some of those harmed will have been unaware of the risk of injury, a default rule
of secondary assumption of risk imposing liability on facility owners absent proof that the particular plaintiff actually
understood the risk is not a desirable alternative in the sports premises liability context. The defense of secondary assumption of risk is almost synonymous with comparative fault, n41 a doctrine based largely on the notion that a party
with actual knowledge of a risk is able to take reasonable precautions to avoid it such that he should bear at least part of
the cost of injury. n42 However, many spectator injuries are nearly impossible to avoid. In a recent Massachusetts case
involving a woman struck by a foul ball at a Red Sox game, experts concluded that she "had no more than 1.07 seconds
from the time [the player] hit the ball to take evasive action." n43 Spectators also have little hope of ducking
100-mile-per-hour slap shots, dodging wrestlers suddenly thrown from the ring, or avoiding debris hurtling off a race
track. n44 There is little justice in applying a rule premised on the imagined capacity of a spectator to avoid largely unavoidable risks; using actual knowledge as a proxy for "fault," or personal responsibility, to allocate the risk of injury to
some spectators but not others cannot be justified when the season ticket holder's chance of evading the line drive in
1.07 seconds may not be significantly greater than that of the six-year-old boy seated next to him.
A default rule that bars recovery only on the basis of secondary assumption of risk, under which facility owners
would bear the risk of injury to spectators lacking actual knowledge, could also provide incentives for owners to behave
in ways that would negatively impact the very spectators that such a rule seeks to protect. For example, an owner could
discourage the attendance of children by eliminating promotional events such as "kids' days," imposing height restrictions similar to those at amusement parks, or reducing the age at which a child must pay full adult ticket prices. An
owner could also attempt to ensure that every spectator entering the premises is aware of the risks inherent to the sport,
thereby inconveniencing all fans by creating long lines at the gate. n45 Perhaps most likely, [*166] an owner could
simply raise ticket prices to cover the cost of insuring against potential liability or, as discussed below, n46 significantly
reduce the sport's entertainment value for fans by screening the entire stadium or arena in an attempt to eliminate any
risk of injury.
Moreover, widespread application of secondary assumption of risk would be extremely inefficient because determining if the defense bars recovery in any given case requires the court to make a "fact-intensive inquiry" as to whether
the particular plaintiff had actual knowledge of the risk. n47 Such inquiries are costlier and more time consuming for
courts than the simple application of primary assumption of risk as a matter of law. n48 In addition, singling out the degree of an injured spectator's actual knowledge as the dispositive factor in deciding whether to allow recovery would not
only protract lawsuits by almost always creating a factual question for jury deliberation, but could also increase the
sheer volume of sports premises liability litigation by providing an incentive for every injured spectator to simply try his
luck at convincing a jury that he was unaware of the hazard.
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II. Limited Duty
Although a person who pays admission to view a sporting event is an "invitee" to whom the owner of the premises
owes a duty of care in conducting the entertainment, n49 a facility owner does not become an "insurer" of the spectator's
safety and is "liable only for injuries proximately caused by his failure to use reasonable care." n50 Courts have defined
"reasonable care" under the law of invitees as "a care commensurate with the particular conditions and circumstances"
of the sporting event in question. n51 Many courts have chosen to [*167] analyze sports premises liability cases by
focusing on the scope of the duty of care owed by facility owners rather than relying on the doctrine of assumption of
risk and its underlying notion that a spectator is responsible for having subjected himself to the risk of injury.
A. The Akins Rule
Most courts have long considered the duty of a baseball stadium owner to be limited as a result of the sport's "particular conditions and circumstances." As early as 1913, the Minnesota Supreme Court remarked in Wells v. Minneapolis
Baseball & Athletic Ass'n that "naturally that part of the grand stand back of home plate is the most exposed to danger
from such balls and tips." n52 Then, several years later in Brisson v. Minneapolis Baseball & Athletic Ass'n, the court
explicitly held that owners "exercise the required care if they provide screening for the most dangerous part of the grand
stand." n53 The concept of limited duty continued to evolve, sometimes supplanting the doctrine of primary assumption
of risk, and today the majority of courts have adopted a two-part rule limiting a baseball facility owner's duty of care. In
Akins v. Glens Falls City School District, the Court of Appeals of New York stated the rule as follows: "the owner must
screen the most dangerous section of the field - the area behind home plate - and the screening that is provided must be
sufficient for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion." n54
In most states, baseball facility owners can therefore satisfy their duty of care and avoid liability for spectator injuries
caused by foul balls by simply providing a reasonable number of screened seats behind home plate. n55
Considering that the doctrines of limited duty and primary assumption of risk are, as discussed below, n56 virtually
inseparable, it is not surprising that as courts extended the defense of primary assumption of risk to hockey, they also
became increasingly willing to apply the Akins rule to the sport. For example, in Pestalozzi v. Phila. Flyers Ltd., a
Pennsylvania court found the limited duty rule "applicable to hockey spectators as well as baseball patrons" because of
the similarity of the risks posed by both sports. n57 As a result, many hockey arena [*168] owners can now likewise
fulfill their limited duty of care by providing a reasonable number of protected seats in the most dangerous sections of
the arena, usually directly behind the goals. n58
The relatively recent enactment of several statutes limiting the liability of baseball and hockey facility owners for
spectator injuries further established limited duty as the majority rule in those two sports. In 1992, Illinois actually became one of the few states to reject the limited duty rule as inapplicable to baseball in both Coronel v. Chicago White
Sox, Ltd. and Yates v. Chicago National League Ballclub, Inc. n59 However, the Illinois Baseball Facility Liability Act,
which essentially adopted the Akins rule, superseded Coronel and Yates later that year. n60 Arizona and Colorado have
also passed baseball liability statutes, n61 while both Utah and Illinois have enacted similar statutes protecting the owners
of hockey facilities. n62 All such sports premises liability statutes are effectively codifications of the Akins limited duty
rule and generally (1) require owners to afford "protective seating that is reasonably sufficient to satisfy expected requests" n63 and (2) provide that owners are liable only for those injuries sustained by spectators actually sitting in such a
protected area. n64
B. The Relationship Between Primary Assumption of Risk and Limited Duty
The limited duty rule and the defense of primary assumption of risk produce the same result - both bar spectators seated in unprotected areas from recovering [*169] for injuries sustained as a result of risks inherent to the sport. Primary
assumption of risk applies when inherent risks are "obvious" or the subject of "common knowledge," and, as one court
stated (referring to a "no duty" rule, which is similar to a limited duty rule): "the ... rule applies to bar a plaintiff's claims
for injuries suffered as a result of common, frequent and expected risks inherent during the activity in question." n65
Courts generally do not distinguish between the elements associated with limited duty and primary assumption of risk
and often use these phrases interchangeably when deciding whether to apply the doctrines. n66 The concepts of primary
assumption of risk and limited duty are also logically inseparable - if a facility owner's duty of care is limited, spectators
necessarily assume the residual risk to which that duty does not extend; conversely, if a spectator assumes some risk as
a matter of law, the owner's duty is limited to the unassumed risk. n67 As the Supreme Court of Minnesota held in Olson
v. Hansen, "primary assumption of risk is not so much an affirmative defense as an expression of the idea that the de-
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fendant owes a limited duty of care to the plaintiff with respect to the risk incident to their relationship." n68 According to
the Restatement (Third) of Torts, courts may employ "other liability-limiting doctrines," such as those "called "no duty'
or "limited duty' rules," that have the same effect as the doctrine of primary assumption of risk. n69 The jurisdictions that
have adhered to the Restatement by formally "abandoning" primary assumption of risk in favor of a limited or no duty
rule are thus still functionally applying a rule that results in primary assumption of risk by spectators. n70
[*170] Although their application yields the same outcome, the doctrines of limited duty and primary assumption
of risk are not identical, n71 and the former provides a more straightforward framework of analysis for allocating the risk
of spectator injuries between fans and facility owners. The concept of primary assumption of risk requires a suspension
of logic when applied to impute knowledge to spectators, such as small children, who could not reasonably be expected
to have actually understood the risk. n72 In addition, cases that rely on the primary assumption of risk doctrine to support
the rule that an owner need only protect fans seated behind home plate are inherently contradictory because the area
behind home plate - where the risk of being struck by a foul ball is most obvious and most commonly appreciated - is
precisely where primary assumption of risk seems most applicable. The concept of limited duty, on the other hand,
adopts a more direct cost-benefit approach that avoids the problematic aspect of spectator culpability underlying primary assumption of risk. In short, the limited duty rule seeks to identify what is "reasonable under the circumstances" from
the perspective of a facility owner - protection for those spectators exposed to the greatest risk, but not for every fan in a
packed arena. Moreover, while the applicability of primary assumption of risk depends exclusively on the relatively
narrow analysis of the nature of a particular risk, the applicability of the limited duty rule in a given situation ultimately
"rests on considerations of public policy and on notions of fairness," n73 and requires consideration of broader issues
such as "the burden to the defendant and consequences to the community." n74
III. Basketball
A. McFatridge and the Applicability of Primary Assumption of Risk
As noted above, n75 in 1961 the Supreme Court of New Mexico held that the doctrine of primary assumption of risk
would not apply to basketball games in McFatridge v. Harlem Globe Trotters. n76 In McFatridge, a Globetrotters player,
n77
[*171] after faking a shot at the proper basket, suddenly and for no apparent reason heaved the ball toward and
past a basket located on a side wall of the arena, striking the plaintiff in the face. n78 The court acknowledged that the
danger of "being struck by balls hit foul or otherwise striking spectators" at baseball games is clear, but cited the absence of "any proof to establish that there is any real danger of injury to spectators at a basketball game from balls entering the spectator section in the usual and ordinary course of the game." n79 The court thus implied that the owner of a
basketball arena could avoid liability only by raising a defense of secondary assumption of risk based on an injured
spectator's actual knowledge. n80
The next court faced with the question of whether to apply the doctrine of primary assumption of risk to basketball
should not regard McFatridge as a meaningful precedent. An exhibition involving the Globetrotters is more of a staged
performance than a real basketball game, n81 and the relevant conduct - throwing a ball at a basket completely removed
from the normal scope of play - was certainly not a "common, frequent, and expected" n82 risk encountered by spectators
"in the usual and ordinary course of the game." n83 The defense of primary assumption of risk is no more applicable to
the facts of McFatridge than it would be to the case of a hockey player who intentionally fires a slap shot into the
stands. It was therefore unnecessary and inappropriate given these extraordinary facts for the court to make the broad
pronouncement that the baseball rule does not apply to basketball. Moreover, the court arrived at that conclusion without considering other basketball-related risks that might warrant a different conclusion, such as the risk of players "entering the spectator section in the usual and ordinary course of the game." Cases such as Silvia and Pierce demonstrate
that the liability of sports facility owners is not limited to injuries caused by balls, pucks, and other projectiles. n84 And,
as anyone who has watched or attended a basketball game can attest, players often crash into the stands in pursuit of
loose balls.
It is also evident that in the forty-five years since McFatridge was decided [*172] basketball, like hockey, has
grown in popularity such that common knowledge now provides an appropriate basis for applying primary assumption
of risk to basketball fans. Considering the massive appeal of college basketball's "March Madness," n85 the National
Basketball Association's significant television exposure, n86 and the fact that basketball is one of the most popular sports
in the world, n87 it seems reasonable to presume that the average spectator understands that errant balls and wayward
players pose a risk. Yet even if, as McFatridge assumed, knowledge of such risks is not widespread, the question, essentially ignored by the court, of whether the risks inherent to basketball are sufficiently obvious to warrant extending the
baseball rule yields a different conclusion. While wrestling rings are often elevated and always separated from the
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crowd by ropes such that the average person would have little reason, even if seated only several feet away, to anticipate
being struck by a participant, basketball spectators seated in the first few rows are quite literally "on the floor" with and
hardly separated from exceptionally large, fast players who pass, catch, and chase a ball that spends much of the game
close to the sidelines. In fact, the risk posed to a courtside fan by balls and players may be more immediately apparent
than that posed by curving line drives to a baseball fan seated along the first or third base line. Moreover, whereas
courts initially hesitated to extend the baseball rule to hockey partly because the risk of injury to hockey fans is rendered
less obvious by the fact that pucks are not generally airborne, n88 a basketball, like a baseball, is far from surface-bound.
Finally, since McFatridge was decided in 1961, basketball players, much like hockey players, n89 have become bigger,
stronger, and faster so that the risk of injury is more apparent [*173] today than ever before. In sum, the defense of
primary assumption of risk should be available to arena owners in basketball premises liability cases because the risk
posed by balls and players is obvious to "a person of reasonable intellectual prowess."
Although not directly on point, Bereswill v. NBA , Inc., a recent New York case barring recovery by a courtside
photographer injured by a Knicks player diving out of bounds after a loose ball, n90 supports the argument that primary
assumption of risk should extend to basketball because the risks inherent to the sport are sufficiently obvious. Although
Bereswill denied recovery on the basis of secondary assumption of risk, since the photographer "had taken photos at
400 to 500 basketball games at [Madison Square] Garden prior to the game during which he was hurt," the court implied that the risks of which the photographer was actually aware as a result of prior experience would have been perfectly apparent to any reasonable observer. n91 After all, front row spectators are hardly more removed from the action
than the photographers crouched at their feet; the risk of injury should therefore be deemed no less obvious.
Two other recently decided New York cases involving injuries to spectators at soccer and football games further
suggest that the risks inherent to basketball are sufficiently obvious to warrant applying the doctrine of primary assumption of risk. Sutton v. Eastern New York Youth Soccer Ass'n, Inc. held that a man struck by an errant shot at a youth
soccer game had assumed the risk of injury because the danger posed by soccer balls to spectators standing behind the
goal was "perfectly obvious." n92 Cannavale v. City of New York held that a spectator "trampled" by players while
standing on the sidelines at a semi-professional football game could not recover because "the danger of watching a
football game from the sidelines of a field with no protective barriers are inherent in the sport and "perfectly obvious.'"
n93
The risks encountered by the plaintiffs in Sutton and Cannavale were nearly identical to those that confront spectators
seated courtside at basketball games: basketballs, like soccer balls, often fly into the stands, and basketball players, like
football players, regularly collide with those seated or standing just beyond the sidelines. The risk of injury to sideline
spectators at basketball games is thus "perfectly obvious" and should be assumed [*174] as a matter of law.
B. The Applicability of the Akins Limited Duty Rule
The limited duty rule's applicability to basketball depends first on whether the risks inherent to the sport are "common,
frequent and expected," an analysis virtually indistinguishable from that undertaken above to determine the applicability
of primary assumption of risk. n94 Even if a risk does fall within the "common, frequent and expected" rubric, there does
remain the potential for a spectator injured while seated in an unprotected area to raise the factual question of whether
his seat should have been one of those screened under the first prong of the Akins rule. Most courts agree, however, that
"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." n95 The development of industry screening standards n96 in sports such as baseball and hockey have resulted in most such cases
being resolved as a matter of law. n97 Of course, the industry standard in basketball arenas is no protection, suggesting
that, perhaps, [*175] owners have not fulfilled their duty based on a literal interpretation of the Akins rule. However,
once a risk is deemed "common, frequent and expected" n98 such that limited duty seems appropriate, a court's application of the limited duty rule ultimately will depend, as noted above, n99 on broader "considerations of public policy and
on notions of fairness." n100 In particular, a court must weigh factors such as "the relationship of the parties, the nature of
the risk and the public interest." n101
1. The Economic Burden on Owners That Results From the Imposition of Liability
Courts sometimes justify the limited duty rule in baseball by arguing that "owners and operators would face undue
hardship if forced to guarantee protection for all fans in the stands from every fly ball." n102 In basketball, although the
economic impact on owners that would result from imposing liability might be less severe because fewer spectators
(only those seated close to the court) encounter risk, it would not be inconsequential - a rule exposing arena owners to
liability for all spectator injuries would, at the very least, create the financial hardship of more frequent litigation (or
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more insurance to cover the costs of such litigation). n103 Owners would likely respond by shifting the increased litigation
costs to spectators by raising ticket prices. As a result, a duty rule designed to benefit fans by allocating the risk of injuries to facility owners would, much like a default rule limiting an owner's defenses to secondary assumption of risk, n104
negatively impact many if not most spectators. n105
2. The "Public Interest:" Balancing Protection and Entertainment Value
Forcing owners to "guarantee protection for all fans in the stands" at basketball games would not only adversely affect
spectators through increased ticket prices, but could also significantly reduce the sport's entertainment value. [*176]
For example, if an arena owner wished to minimize the risk of liability, he could ensure that all spectators are protected
by moving seats further from the floor or even erecting plexiglass similar to that used for hockey games. n106 Yet determining the proper duty of care in sports premises liability cases involves "complex trade-offs between entertainment
and safety." n107 Front row seats are most desirable in almost all sports because fans usually wish to be as close to and
have as a clear a view of the action as possible. n108 Baseball spectators in particular have long enjoyed the entertainment
value of unscreened seats that provide unimpeded views as well as the opportunity to catch souvenirs. n109 As a result, it
is well established that "the law does not require [an owner] to take steps for the safety of his invitees such as will unreasonably impair the enjoyment of the exhibition by the usual patrons of such contests." n110 Basketball fans may not
arrive with their mitts hoping to catch errant passes, but they certainly wish to be "involved with the game in an intimate
way." n111 In fact, because of their exceedingly close, completely unobstructed position, the experience of fans seated in
the front rows at basketball games is both unique and highly valued. It is difficult to imagine Spike Lee and Jack Nicholson enjoying the action at Madison Square Garden or Staples Center, respectively, from behind plexiglass some
twenty feet from the floor. In short, if the existence of duty "is ultimately a question of fairness," n112 it seems patently
unfair for owners to bear the risk of injuries sustained by spectators when those spectators have been left unprotected
largely for their own benefit.
[*177]
3. The Nature of the Harm
Courts should also consider the magnitude of the harm likely to result from a "common, frequent and expected risk"
when determining the proper duty of care in a particular situation. n113 Naturally, it seems unreasonable to force spectators to bear the risk of potentially life-threatening injuries. For example, the severity of the injuries typically sustained
by auto racing spectators may warrant imposing liability on track owners. In addition, the general perception that hockey pucks are more lethal than foul balls may at least partially explain why courts have not uniformly embraced the limited duty rule in hockey. n114 The severity of the average injury suffered by spectators at basketball games, while not inconsequential, certainly does not approach that of the average injury caused by flying debris, deflected slap shots, or
even foul balls.
IV. Modifying the Limited Duty Rule
A limited duty rule would, as the sum of these policy considerations suggest, fairly allocate the risk of injury between
basketball fans and facility owners. However, the doctrine is imperfect as currently conceived. The second prong of the
Akins limited duty rule, requiring owners to provide screening "sufficient for those spectators who may be reasonably
anticipated to desire protected seats on an ordinary occasion," n115 is little more than a remnant of the antiquated notion
that a spectator's choice of seat should be a relevant factor in the liability analysis. The fact that most baseball and
hockey facility owners can now fulfill their limited duty to spectators by satisfying the first prong of the Akins test - by
screening "the most dangerous section of the field" n116 - suggests that the second prong of the rule should be discarded
as superfluous.
Of course, if the first prong of the Akins limited duty rule is dispositive, it becomes imperative that the protected
areas are, in fact, those that are most dangerous. So while it is currently assumed that the sections behind the goals in
hockey and behind home plate in baseball present the greatest risk to spectators, owners need to periodically evaluate
whether the evolution of a sport has modified the inherent risks such that different or additional areas should be
screened. n117
[*178] Finally, and most importantly, courts should apply the doctrine of limited duty and primary assumption of
risk in conjunction with the additional component of a duty to warn. Instead, courts have almost uniformly held that
facility owners do not have a duty to warn spectators of risks assumed as a matter of law, n118 often because of the pre-
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6 Va. Sports & Ent. L.J. 156, *
sumption that a warning would not reduce the risk of harm. n119 Yet the doctrine of primary assumption of risk imputes
knowledge of a commonly appreciated or particularly obvious hazard and, as noted above, n120 inevitably forces a small
percentage of spectators "to assume risks of whose specific existence [they were] not aware." n121 Although warnings
might not dramatically reduce the number of spectator injuries because many are virtually unavoidable, a duty to warn
would increase the likelihood that all spectators are actually aware of the risk they assume as a matter of law. Had the
Red Sox posted signs throughout Fenway Park warning of the danger of foul balls before, and not after, the markedly
ignorant plaintiff in Costa was struck by a scorching line drive, she may have avoided injury and most likely would
have at least been aware of the risk she was later held to have assumed under Massachusetts' limited duty rule. From a
cost-benefit perspective, warnings are extremely inexpensive, as demonstrated by the fact that many facility owners
offer them on their own initiative, n122 so that even a modest positive effect would more than justify imposing a duty to
warn. Nor would requiring owners to provide some warning of the risks inherent to the sport potentially expose them to
liability on the basis of insufficient warning for two reasons. First, industry [*179] standards would undoubtedly develop as they have for screening in baseball and hockey such that suits alleging insufficient warning would not get to a
jury unless the warnings in question deviated from the industry standard. Second, negligence claims based on lack of
warning would generally fail to establish the necessary element of proximate cause because of the unavoidable nature of
many spectator injuries. n123
Conclusion
The risk of injury should thus be allocated between basketball fans and facilities under an Akins-type limited duty rule,
where spectators assume the risks inherent to the sport as a matter of law, modified to include a duty to warn. The limited duty rule is appropriate because it would be unreasonable for owners to invest in extensive protective measures that
would not only impose an unwarranted economic burden on them but would also significantly detract from fans' enjoyment of the game. Similarly, in those jurisdictions that prefer to allocate risk based on the doctrine of primary assumption of risk, courts should achieve the same substantive result by holding that the risk of injury from balls and
players is common knowledge and sufficiently obvious to be assumed by spectators as a matter of law.
Legal Topics:
For related research and practice materials, see the following legal topics:
TortsNegligenceDefensesAssumption of RiskAthletic & Recreational ActivitiesTortsNegligenceDefensesAssumption
of RiskElements & NaturePrimary Assumption of RiskTortsNegligenceDefensesAssumption of RiskElements & NatureSecondary Assumption of Risk
FOOTNOTES:
n1. See McFatridge v. Harlem Globe Trotters, 365 P.2d 918 (N.M. 1961); A. E. Piesner, Annotation, Liability to Spectator at Basketball
Game Injured as Result of Hazards of Game, 89 A.L.R.2d 1163. Several cases have addressed the issue of whether fans at high school or
college basketball games can recover from the school for injuries sustained outside the course of play. See, e.g., Bacon v. Harris, 353 P.2d
472 (Or. 1960) (holding that plaintiff, who fell on a stairway while attending a basketball game at the University of Oregon, could not maintain a suit against the State Board of Higher Education).
n2. Courts have typically held that actions directed against the players themselves are unsupportable. 20 Causes of Action 2d 361, §23
(2005); see, e.g., Quinn v. Recreation Park Ass'n, 46 P.2d 144, 145 (Cal. 1935) (dismissing a suit against a player who hit a foul ball injuring the plaintiff).
n3. 20 Causes of Action 2d 361, §§3-14 (2005).
n4. Id. at §26.
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6 Va. Sports & Ent. L.J. 156, *
n5. Aaser v. City of Charlotte, 144 S.E.2d 610, 614 (N.C. 1965).
n6. C. Peter Goplerud III & Nicolas P. Terry, Allocation of Risk Between Hockey Fans and Facilities: Tort Liability After the Puck Drops,
38 Tulsa L. Rev. 445, 451-52 (2003).
n7. See Restatement (Second) of Torts §496A (1965).
n8. Goplerud & Terry, supra note 6, at 451.
n9. McFatridge, supra note 1, at 921-22. After explicitly stating that the defense of primary assumption of risk did not apply to basketball,
McFatridge allowed the plaintiff to recover from the owner of the Globetrotters on the ground that the player had acted negligently while in
the course of his employment, an alternative cause of action beyond the scope of this Note. Id.
n10. See 20 Causes of Action 2d 361, §16 (2005) ("When the facts are such that plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge and assumption of the risk may be found.").
n11. See Restatement (Second) of Torts §496A cmt. d (1965).
n12. Walter T. Champion, Jr., "At the "Ol Ball Game'" and Beyond: Spectators and the Potential for Liability, 14 Am. J. Trial Advoc. 495,
503 (1991). Compare Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 223 (Mich. Ct. App. 2001) (applying primary assumption of risk to
bar recovery by a spectator struck by a foul ball because "it seems axiomatic that baseball fans attend games knowing that ... objects may
leave the field with the potential of causing injury in the stands") with Bellezzo v. State, 851 P.2d 847, 852 (Ariz. Ct. App. 1992) (applying
primary assumption of risk to bar recovery by a spectator struck by a foul ball because "the danger that a spectator hit by a foul ball may be
injured is ... evident").
n13. Blakeley v. White Star Line, 118 N.W. 482, 483 (Mich. 1908).
n14. Crane v. Kansas City Baseball & Exhibition Co., 153 S.W. 1076, 1077 (Mo. Ct. App. 1913) (quoting an agreed statement of facts).
n15. See, e.g., Pakett v. Phillies, L.P., 871 A.2d 304, 308 (Pa. Commw. Ct. 2005) ("One who attends a baseball game as a spectator can
properly be charged with anticipating as inherent to baseball the risk of being struck by a foul ball while sitting in the stands during the
course of a game."); Nemarnik v. Los Angeles Kings Hockey Club, L.P., 127 Cal. Rptr. 2d 10, 14 (Ct. App. 2002) ("California courts have
long held that the risk to spectators of being hit by ... a foul ball is an inherent risk of baseball that is assumed by the spectator."); Benejam,
supra note 12, at 223.
n16. Brisson v. Minneapolis Baseball & Athletic Ass'n, 240 N.W. 903, 904 (Minn. 1932).
n17. Bellezzo, supra note 12, at 852.
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6 Va. Sports & Ent. L.J. 156, *
n18. Quinn v. Recreation Park Ass'n, 46 P.2d 144, 147 (Cal. 1935); see also Crane, supra note 14, at 1077 (stating that even if the risk
posed by foul balls were not common knowledge the plaintiff still could not recover because "he was offered a choice between a protected
and an unprotected seat ... and voluntarily chose the latter").
n19. Compare Edling v. Kansas City Baseball & Exhibition Co., 168 S.W. 908, 909 (Mo. Ct. App. 1914) ("The ticket he purchased gave
plaintiff the right to select any seat that was not already appropriated by some other spectator earlier to arrive.") and Wells v. Minneapolis
Baseball & Athletic Ass'n, 142 N.W. 706, 707 (Minn. 1913) (explaining that the plaintiff had a choice of any vacant seat upon arriving at the
game) with Major League Baseball Club by Club Ticket Information, http://mlb.mlb.com/NASApp/mlb/mlb/tickets/index.jsp (last visited
Sept. 25, 2006).
n20. See, e.g., Uline Ice, Inc. v. Sullivan, 187 F.2d 82, 86 (D.C. Cir. 1951) (refusing to apply the baseball rule to hockey and ruling for the
plaintiff because she "did not know that the puck could leave the playing area"); Thurman v. Ice Palace, 97 P.2d 999, 1001 (Cal. Dist. Ct.
App. 1939) (holding that the baseball rule is "inapplicable to ice hockey" and allowing plaintiff to recover because it was her first hockey
game); see also, Shanney v. Boston Madison Square Garden Corp., 5 N.E.2d 1, 1-2 (Mass. 1936) (rejecting the arena owner's defense of
primary assumption of risk because "there must be many who are in attendance for the first time" without actual knowledge of the risk).
n21. See Goplerud & Terry, supra note 6, at 465 ("Hockey defendants surely salivate over the "national pastime' emotional strain detectible
in some of the baseball foul ball cases and hope for the extension of any such "unique' treatment.").
n22. See, e.g., Flood v. Kuhn, 407 U.S. 258, 262 (1972) (revering those ballplayers "that have sparked the diamond and its environs and
that have provided tinder for recaptured thrills, for reminiscence and comparisons"); Ex parte Neet, 57 S.W. 1025, 1027 (Mo. 1900)
("[Baseball] is to America what Cricket is to England."); Ex parte Roquemore, 131 S.W. 1101, 1104 (Tex. Crim. App. 1910) ("It is known,
of course, that baseball is the most generally practiced, patronized, and approved of all the games of exercise, and that it is the cleanest and
fairest of all manly sports ... .").
n23. See, e.g., Shurman v. Fresno Ice Rink, 205 P.2d 77, 81 (Cal. Dist. Ct. App. 1949) ("It cannot be held ... that the general public has, at
this particular date, become so familiar with the hazards of this sport and of the actual appreciation of the seriousness of the risk as to bring
them within the "common knowledge' rule and under the doctrine of assumption of risk."); Uline Ice, supra note 20, at 86 (holding that the
"possibility of danger" from a flying puck "would not naturally occur to a patron who had never seen it happen").
n24. New technologies such as carbon-fiber sticks and improved training regimens have made play faster and players stronger, thereby increasing the likelihood that the average spectator will perceive the risk of injury. See David Horton, Rethinking Assumption of Risk and
Sports Spectators, 51 UCLA L. Rev. 339, 343 (2003); Goplerud & Terry, supra note 6, at 465-66.
n25. See Goplerud & Terry, supra note 6, at 468 ("In subsequent years, the courts have recognized the increasing popularity of hockey ...
."). Not only has hockey grown more popular, but several recent incidents involving severe or even fatal injuries to spectators have made the
average fan more aware of the dangers associated with the sport. See, e.g., Horton, supra note 24, at 340 (describing the death of a thirteen-year-old girl struck by a puck at a National Hockey League (NHL) game in 2002 that garnered national media attention).
n26. Nemarnik, supra note 15, at 15; see also, Moulas v. PBC Prods., Inc., 570 N.W.2d 739, 745 (Wis. Ct. App. 1997) (holding that "any
person of ordinary intelligence cannot watch a game of hockey for any length of time without realizing the risks" and that "hockey is played
to such an extent ... and its risks are so well known to the general public that ... there is no difference in fact between [hockey and baseball]"
(citing Modec v. City of Eveleth, 29 N.W.2d 453 (Minn. 1947)).
n27. See, e.g., Dusckiewicz v. Carter, 52 A.2d 788, 791 (Vt. 1947); Silvia v. Woodhouse, 248 N.E.2d 260, 263 (Mass. 1969); Pierce v.
Murnick, 145 S.E.2d 11, 12 (N.C. 1965).
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6 Va. Sports & Ent. L.J. 156, *
n28. See, e.g., Dusckiewicz, supra note 27, at 791 ("The number of people who know how a wrestling match is conducted and what may
reasonably be expected to happen there is small when compared with the great number who know what may reasonably be expected to happen at a ball game played in the normal manner.").
n29. See, e.g., Silvia, supra note 27, at 263 (denying recovery to a spectator injured by a wrestler thrown from the ring while sitting no
more than six feet away because the risk was not "so obvious that a person of ordinary intelligence would have foreseen it as a matter of
law").
n30. Pierce, supra note 27, at 12; see also, e.g., Dusckiewicz, supra note 27, at 790 (holding that a spectator at a wrestling match does not
assume the risk of injury "in the absence of warning or personal knowledge"); Silvia, supra note 27, at 263 (suggesting that the plaintiff
would have assumed the risk of injury had he actually witnessed wrestlers thrown from the ring during previous matches).
n31. Goplerud & Terry, supra note 6, at 457.
n32. See id. at 458 (explaining that most auto racing incidents involve participants not fans).
n33. Id. at 457.
n34. See, e.g., Goade v. Benevolent and Protective Order of Elks, Pomona, Cal., Lodge No. 789, 28 Cal. Rptr. 669, 672 (Dist. Ct. App.
1963) (holding that unlike the "risk of being hit by a fly ball," the "risk of being killed or injured by a racing sports car is neither so common,
frequent, nor expected an occurrence that it should be considered a matter of "common knowledge' sufficient to impose "actual knowledge'
on the paying spectator").
n35. See, e.g., Pakett, supra note 15, at 308.
n36. See, e.g., Goade, supra note 34, at 672.
n37. For example, while Goade, supra note 34, at 671, allowed recovery because the plaintiff had "never been to" and was "totally unfamiliar" with sports car racing, McPherson v. Sunset Speedway, Inc., 594 F.2d 711, 714 (8th Cir. 1979), denied recovery on the basis of secondary assumption of risk because the injured spectator had been a stock car owner for almost a decade.
n38. The courts' reluctance to truly embrace primary assumption of risk is demonstrated by their longstanding tendency to cite a plaintiff's
actual knowledge, whenever possible, as a sort of collateral justification for barring recovery on the basis of primary assumption of risk,
even though actual knowledge should be irrelevant as a matter of law. See, e.g., Rees v. Cleveland Indians Baseball Co., Inc., 2004 WL
2610531, 4 (Ohio Ct. App. 2004) (stating that "the defense of primary assumption of the risk is an appropriate defense in this case" because
the plaintiff "knew she was unprotected" as a result of her "familiarity with the stadium [and] the game of baseball"); Petrongola v. Comcast-Spectacor, L.P., 789 A.2d 204, 211 (Pa. Super. Ct. 2001) (holding that the plaintiff had assumed the risk of being struck by a puck as a
matter of law, but also noting that he was a "season ticket holder" who "regularly attended games and knew that pucks can ... leave the ice
during play"); Keys v. Alamo City Baseball Co., 150 S.W.2d 368, 371 (Tex. Civ. App. 1941) (barring recovery based on the "universal
common knowledge" of "the potential dangers inherent in baseball," but speculating that the plaintiff must have had actual knowledge of the
risk posed by foul balls because her fourteen-year-old son was a baseball fan). The tendency to confuse the two defenses reinforces the
preference for adopting secondary assumption of risk by rendering the doctrine of primary assumption of risk distinctly unappealing in cases
where it cannot be similarly "justified" by the particular plaintiff's actual knowledge.
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6 Va. Sports & Ent. L.J. 156, *
n39. See, e.g., Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013, 1016 (Utah 1995) (holding that a six-year-old girl had assumed the risk
of being struck by a foul ball as a matter of law).
n40. See, e.g., City of Atlanta v. Merritt, 323 S.E.2d 680, 682 (Ga. Ct. App. 1984) (refusing to apply primary assumption of risk to an
eight-year-old boy struck by a foul ball).
n41. Goplerud & Terry, supra note 6, at 452.
n42. See id. at 452 (describing comparative fault as requiring an analysis of the plaintiff's "reaction to the projectile"); Horton, supra note
24, at 344 ("Comparative fault ... allocates damages in proportion to the parties' respective responsibilities.").
n43. Costa v. Boston Red Sox Baseball Club, 809 N.E.2d 1090, 1091 (Mass. App. Ct. 2004) ("Avoiding injury from a ball hit into the
stands sometimes may be close to impossible.").
n44. See, e.g., L. Jon Wertheim, How She Died, Sports Illustrated, April 1, 2002, at 60 (reporting that the deflected slap shot that fractured
the skull of a thirteen-year-old girl at a 2002 NHL game was traveling at 100 miles per hour); Cortwright v. Brewerton Int'l Speedway Inc.,
539 N.Y.S.2d 599, 601 (N.Y. App. Div. 1989) (holding that the plaintiff could not have avoided being struck by flying debris at an auto
race).
n45. See Ingersoll v. Onondaga Hockey Club, 281 N.Y.S. 505, 508 (N.Y. App. Div. 1935) (implying that an owner deciding to make an
"inquiry of each patron ... entering the premises as to whether or not he or she had ever witnessed a like performance" would be a foreseeable consequence of a default rule based on actual knowledge).
n46. See infra Part III.B.2.
n47. Goplerud & Terry, supra note 6, at 451-52.
n48. Compare Pakett, supra note 15, at 308 (granting summary judgment to the owner of a baseball stadium because baseball spectators
assume the risk of being struck by a foul ball as a matter of law) with Silvia, supra note 27, at 263 (agreeing with the trial court's determination that whether the plaintiff had assumed the risk of being struck by a wrestler thrown from the ring depended on his actual knowledge and
therefore presented a question of fact for the jury).
n49. See, e.g., Aaser, supra note 5, at 614; Williams v. Strickland, 112 S.E.2d 533, 537 (N.C. 1960); McFatridge, supra note 1, at 921; Cincinnati Baseball Club Co. v. Eno, 147 N.E. 86, 88 (Ohio 1925).
n50. Aaser, supra note 49, at 614; Wells, supra note 19, at 708 (holding that owners of a baseball stadium were "not insurers of the safety of
spectators" but "were bound to exercise reasonable care").
n51. Hudson v. Kansas City Baseball Club, 164 S.W.2d 318, 320 (Mo. 1942); see also, e.g., Aaser, supra note 49, at 614 ("The vigilance
required of the owner of the arena ... and the precautions which he must take to guard against injury ... will vary with the nature of the exhibition.").
Page 189
6 Va. Sports & Ent. L.J. 156, *
n52. Wells, supra note 19, at 707.
n53. Brisson, supra note 16, at 904.
n54. Akins v. Glens Falls City Sch. Dist., 441 N.Y.S. 2d 644, 646 (1981).
n55. 20 Causes of Action 2d 361, §6 (2005) (describing the Akins limited duty rule as the "prevailing rule"); see also Maisonave v. Newark
Bears Prof'l Baseball Club, Inc., 881 A.2d 700, 705 n.2 (N.J. 2005) (listing several of the many jurisdictions that have "explicitly adopted the
limited duty rule").
n56. See infra Part II.B.
n57. Pestalozzi v. Phila. Flyers Ltd., 576 A.2d 72, 74 (Pa. Super. Ct. 1990).
n58. See, e.g., Schneider v. Am. Hockey and Ice Skating Ctr., Inc., 777 A.2d 380, 382 (N.J. Super. Ct. App. Div. 2001); Nemarnik, supra
note 15, at 18.
n59. Coronel v. Chicago White Sox, Ltd., 595 N.E.2d 45, 48 (Ill. App. Ct. 1992) ("It does not necessarily follow ... that once an owner of a
ballpark has provided an adequate fenced-in area for the most dangerous part of the grandstand he has thereafter exculpated himself from
further liability ... ") (quoting Maytnier v. Rush, 225 N.E.2d 83 (Ill. App. Ct. 1967)); Yates v. Chicago Nat'l League Ball Club, Inc., 595
N.E.2d 570 (Ill. App. Ct. 1992) (affording recovery to a plaintiff struck by a foul ball while sitting outside the protective reach of the screen
behind home plate).
n60. Illinois Baseball Facility Liability Act, 745 Ill. Comp. Stat. Ann. 38/5 (1992) (limiting an owner's liability to those injuries sustained
by spectators sitting behind defective screens or caused by the owner's "willful and wanton conduct").
n61. Ariz. Rev. Stat. Ann. §12-554 (2006); Colorado Baseball Spectator Safety Act, Colo. Rev. Stat. Ann. §13-21-120 (2006).
n62. Illinois Hockey Facility Liability Act, 745 Ill. Comp. Stat. Ann. 52/10 (2006); Utah Code Ann. §78-27-62 (2005).
n63. See, e.g., Ariz. Rev. Stat. Ann. §12-554 (2006). It is worth noting that sports premises liability statutes may be an imperfect means of
allocating risk between fans and facility owners because at least in some cases they provide less incentive for owners to supply adequate
protection, ignore possibilities such as injuries caused by ricochets, and subject previously immune parties such as leagues and participants
to potential liability. See Goplerud & Terry, supra note 6, at 471-79.
n64. In other words, for those injuries resulting from defective protective screens or netting.
n65. Loughran v. Phillies, 888 A.2d 872, 875 (Pa. Super. Ct. 2005).
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6 Va. Sports & Ent. L.J. 156, *
n66. See, e.g., Pakett, supra note 15, at 307-09; Maisonave, supra note 55, at 705-07.
n67. For example, many courts that have applied the limited duty rule to baseball have done so precisely because of the long accepted notion that spectators at baseball games assume the risk of being struck by a foul ball. See Maisonave, supra note 55, at 704-05 ("Many courts
that adopted the [limited duty] rule ... based their decisions on two facts: that the danger of errant balls was common knowledge and that
spectators sitting in unscreened seats assumed the risk of injury.").
n68. Olson v. Hansen, 216 N.W.2d 124, 127 (Minn. 1974); see also Perez v. McConkey, 872 S.W.2d 897, 900 (Tenn. 1994) (holding that a
defense of primary assumption of risk "is simply an alternative manner of stating that the plaintiff has failed to establish a cause of action
because the defendant has no duty to protect the plaintiff from the inherent risk"); Springrose v. Willmore, 192 N.W.2d 826, 827 (Minn.
1971) ("Primary assumption of risk ... relates to the initial issue of whether a defendant was negligent at all - that is, whether the defendant
had any duty to protect the plaintiff from a risk of harm.").
n69. Restatement (Third) of Torts: Apportionment of Liab. §2 cmt. j (2000).
n70. See, e.g., Loughran, supra note 65, at 875 (describing the limited or, as it is called in Pennsylvania and some other jurisdictions, the
"no duty" rule as a "modified version of the assumption of risk doctrine").
n71. See Schentzel v. Phila. Nat'l League Club, 96 A.2d 181, 186 (Pa. Super. Ct. 1953) (stating that although "the boundaries of an assumption of risk coincide with those of the defendant's obligation of care ... they are not ... invariably identical").
n72. See discussion supra Part I.C.
n73. Maisonave, supra note 55, at 706 (quoting Crawn v. Campo, 643 A.2d 600, 604 (N.J. 1994)).
n74. Bigbee v. Pacific Tel. & Tel. Co., 665 P.2d 947, 955 (Cal. 1983). (Kroninger, J., concurring and dissenting) (quoting from Rowland v.
Christian, 443 P.2d 89 (Cal. 1969)).
n75. See supra note 9 and accompanying text.
n76. McFatridge, supra note 1, at 921-22.
n77. It is perhaps not surprising, considering its apparent lack of knowledge concerning the sport of basketball, that the court mistakenly
spelled "Globetrotters" as "Globe Trotters." See http://harlemglobetrotters.com (the Globetrotters' official website).
n78. McFatridge, supra note 1, at 920.
n79. Id. at 922.
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6 Va. Sports & Ent. L.J. 156, *
n80. See id. (holding that the trial court had properly instructed the jury to deny recovery if it found the plaintiff had assumed the risk
through personal knowledge).
n81. See Wikipedia.com, Harlem Globetrotters, http://en.wikipedia.org/wiki/Harlem Globetrotters (last visited Oct. 9, 2006) ("The Globetrotters gradually worked comic routines into their act until they became known more for entertainment than sports.").
n82. Loughran, supra note 65, at 875.
n83. McFatridge, supra note 1,at 920.
n84. See supra note 27.
n85. For example, there were more than three million entries in the 2006 edition of ESPN's "Tournament Challenge," an on-line game in
which contestants attempt to predict the winners of every game of the NCAA Division I Men's Basketball Tournament for a prize. See Dan
Shanoff, Bracketville Meets Pleasant-Ville, March 28, 2006, http://sports.espn.go.com/espn/page2/story?page=shanoff/060328 (last visited
Oct. 9, 2006).
n86. There were more than 140 nationally televised NBA games scheduled on ESPN, TNT, and ABC during the 2006-07 regular season.
See Inside Hoops, 2006-07 NBA Television Schedule, http://www.insidehoops.com/hoopstv.shtml (last visited Oct. 10, 2006)
n87. See The International Olympic Committee, http://www.olympic.org/uk/sports/programme/history uk.asp?DiscCode=
BK&sportCode=BK (last visited Oct. 20, 2006) ("Today, basketball has become one of the most popular sports in the world, rivaling football (soccer) for world-wide popularity and trailing only volleyball and track and field athletics in terms of number of member federations.").
n88. See, e.g., Thurman v. Ice Palace, 97 P.2d 999, 1001 (Cal. Dist. Ct. App. 1939) (citing the fact that "the puck is ordinarily batted along
the surface of the ice" as one reason why the risk of injury to hockey spectators is less obvious than that posed by foul balls to baseball
spectators).
n89. See supra note 24.
n90. Bereswill v. Nat'l Basketball Ass'n, Inc., 719 N.Y.S.2d 231, 232 (App. Div. 2001).
n91. See Id. ("Defendants did not enhance existing risks or create risks not inherent to the sport of basketball ... .").
n92. Sutton v. E. N.Y. Youth Soccer Ass'n, Inc., 779 N.Y.S.2d 149, 152 (App. Div. 2004) (citation omitted). The Court also sought "collateral justification" for applying primary assumption of risk by speculating that the plaintiff, "a frequent spectator of the game for over 14
years," probably had actual knowledge of the risk. Id.
n93. Cannavale v. City of N.Y., 683 N.Y.S.2d 528, 529 (App. Div. 1999).
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6 Va. Sports & Ent. L.J. 156, *
n94. See discussion supra Part III.A (citing Loughran, supra note 65, at 875). If anything, courts have occasionally extended the "common,
frequent and expected" rubric in baseball to somewhat less obvious risks. For example, baseball fans assume the risk of injury from balls
thrown (outside the course of play) into the stands as souvenirs. See, e.g., Pira v. Sterling Equities, Inc., 790 N.Y.S.2d 551, 551 (App. Div.
2005); Loughran, supra note 65, at 873. Nevertheless, courts have felt the need to draw the line somewhere, so that a spectator struck by a
foul ball while walking in the stadium concourse can recover because the risk of such an injury is not sufficiently common, frequent, or expected. See, e.g., Jones v. Three Rivers Mgmt. Corp., 394 A.2d 546, 551-52 (Pa. 1978); Maisonave, supra note 55, at 702 (holding that the
limited duty rule "applies in situations where an injury occurs in the stands," but not "in all other areas of the stadium"). If applied to basketball, the limited duty rule would thus presumably bar spectators from recovering for injuries caused by, for instance, a ball heaved into the
crowd at the end of a game by a player celebrating victory.
n95. Jones, supra note 94, at 550.
n96. The NHL and American Hockey League (AHL) have erected netting in almost all arenas based on safety standards developed by the
American Society for Testing Materials (ASTM). Goplerud & Terry, supra note 6, at 471. According to the Detroit Red Wings, "a lot of
thought and research went into the league's decision to mandate netting for all 30 NHL arenas." Official Website of the Detroit Red Wings,
http://www.detroitredwings.com/tickets/arena.jsp (last visited Oct. 10, 2006). The ASTM has also established guidelines for fencing and
screening in baseball parks that has been implemented in many Major League, minor league, and college facilities. See Gil Fried, Plaintiffs
in the Stands, 20 Ent. & Sports Law. 8, 12-13 (2002).
n97. See, e.g., Pakett, supra note 15, at 309 (affirming summary judgment for an owner whose screens did not deviate from the established
customs used in baseball stadiums); Nemarnik, supra note 15, at 18 (affirming dismissal of an action brought by a spectator injured by a flying hockey puck because the owner had satisfied his limited duty of adhering to the league-wide custom of providing protected seating directly behind the goals).
n98. Loughran, supra note 65, at 875.
n99. See discussion supra Part II.B.
n100. Maisonave, supra note 55, at 706 (quoting Crawn v. Campo, 643 A.2d 600, 604 (N.J. 1994)).
n101. Petrongola, supra note 38, at 210.
n102. Maisonave, supra note 55, at 707.
n103. See Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 223 (Mich. Ct. App. 2001) (suggesting that the limited duty rule in baseball
prevents "burgeoning litigation that might signal the demise or substantial alteration of the game of baseball as a spectator sport").
n104. See discussion supra Part I.C.
n105. See generally Neinstein v. Los Angeles Dodgers, Inc., 229 Cal. Rptr. 612, 614 (Dist. Ct. App. 1986) (suggesting that baseball owners
would respond by raising ticket prices "to cover the cost of compensating injured persons" such that "persons of meager means might be
"priced out' of enjoying the great American pastime").
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6 Va. Sports & Ent. L.J. 156, *
n106. Once again, the owner would undoubtedly raise ticket prices to pay for implementing such changes.
n107. Goplerud & Terry, supra note 6, at 456.
n108. See, e.g., Murnick, supra note 27, at 12.
n109. See, e.g., Benejam, supra note 12, at 222 ("There is inherent value in having most seats unprotected by a screen because baseball patrons generally want to be involved with the game in an intimate way."); Maisonave, supra note 55, at 706-07 (holding that it would be "unfair to hold owners and operators liable for injuries to spectators" partly because "the potential danger of fly balls is an inherent, expected,
and even desired part of the baseball fan's experience"); Rudnick v. Golden West Broadcasters, 202 Cal. Rptr. 900, 905 (Dist. Ct. App. 1983)
("The chance to apprehend a misdirected baseball is as much part of the game as the seventh inning stretch or peanuts and Cracker Jack.").
n110. Murnick, supra note 27, at 12; see also Aaser, supra note 5, at 614 (holding that "the more remote areas of a baseball field need not
be screened against batted balls" because an owner is not required "to take steps for the safety of his invitees such as will unreasonably impair the attractiveness of his establishment for its customary patrons").
n111. Benejam, supra note 12, at 222.
n112. Petrongola, supra note 38, at 210.
n113. See Daniel E. Wanat, Torts and Sporting Events: Spectator and Participant Injuries - Using Defendant's Duty to Limit Liability as an
Alternative to the Defense of Primary Implied Assumption of the Risk, 31 U. Mem. L. Rev. 237, 276 (2001).
n114. See Goplerud & Terry, supra note 6, at 480.
n115. Akins, supra note 54, at 646.
n116. Id.
n117. See Fried, supra note 94, at 11. For example, the dramatic increase in home runs over the last quarter century suggests that those
seated in the outfield bleachers may now be at greater risk, and the speed of line drive fouls may present an argument for extending screening further down the first and third base lines.
n118. See, e.g., Benejam, supra note 12, at 220 ("There is no duty to warn spectators at a baseball game of the well-known possibility that a
bat or ball might leave the field."); Costa, supra note 43, at 1093 (holding that the Boston Red Sox "had no duty to warn the plaintiff of the
obvious danger of a foul ball being hit into the stands"); Bellezzo, supra note 12, at 851-52 (holding that the stadium owner had no duty to
warn of the "open and obvious" risk of being struck by a foul ball).
n119. See, e.g., Costa, supra note 43, at 1092-93 (holding that "any further warning" of the risk posed by foul balls "would be an empty
form that would not reduce the likelihood of resulting harm") (quoting O'sullivan v. Shaw, 726 N.E.2d 567 (1997)).
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6 Va. Sports & Ent. L.J. 156, *
n120. See discussion supra Part I.C.
n121. Schentzel, supra note 71, at 187.
n122. For example, the Red Sox voluntarily posted warning signs after Costa. Costa, supra note 43, at 1092; see also, e.g., Pakett, supra
note 15, at 305 n.1 (noting that the Philadelphia Phillies have posted warnings "on stadium walkways, between the concourses and by means
of a video cartoon played in the middle of the first inning of each game"); Gunther v. Charlotte Baseball, Inc., 854 F.Supp. 424, 426 (D.S.C.
1994) (describing the Charlotte minor league organization's practice of using the public address system to give a pre-game warning before
the singing of the national anthem). In addition, the Colorado Baseball Spectator Act includes a provision requiring owners to post clearly
lettered warning signs in conspicuous locations throughout ballparks. Colo. Rev. Stat. Ann. §13-21-120 (2006).
n123. See Fried, supra note 94, at 8 ("Under a negligent failure to warn theory, proximate cause cannot be established unless it is shown
that warning, if adequate, would have prevented the injury ...").