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In American tort law, the Baseball RuleNathaniel Grow and Zachary Flagel,
The Faulty Law and Economics of the 'Baseball Rule'
, 60 Wm. & Mary L. Rev. 59, 63–64 (2018).
holds that a
baseball Baseball is a bat-and-ball sport played between two teams of nine players each, taking turns batting and fielding. The game occurs over the course of several plays, with each play generally beginning when a player on the fielding tea ...
team or, at amateur levels, its sponsoring organization, cannot be held
liable In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencie ...
for injuries suffered by a spectator struck by a
foul ball In baseball, a foul ball is a batted ball that: * Settles on foul territory between home and first base or between home and third base, or * Bounces and then goes past first or third base on or over foul territory, or * Has its first bounce occu ...
batted into the stands, under most circumstances, as long as the team has offered some protected seating in the areas where foul balls are most likely to cause injuries. This is considered within the
standard Standard may refer to: Symbols * Colours, standards and guidons, kinds of military signs * Standard (emblem), a type of a large symbol or emblem used for identification Norms, conventions or requirements * Standard (metrology), an object th ...
of
reasonable care In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be establis ...
that teams owe to spectators, although in recent decades it has more often been characterized as a limited- or no-duty rule, and applied to
ice hockey Ice hockey (or simply hockey) is a team sport played on ice skates, usually on an ice skating rink with lines and markings specific to the sport. It belongs to a family of sports called hockey. In ice hockey, two opposing teams use ice hock ...
and
golf Golf is a club-and-ball sport in which players use various clubs to hit balls into a series of holes on a course in as few strokes as possible. Golf, unlike most ball games, cannot and does not use a standardized playing area, and coping wi ...
as well. It is largely a matter of
case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a l ...
in state courts, although four states have codified it. The rule arose from a pair of 1910s decisions by the
Missouri Court of Appeals The Missouri Court of Appeals is the intermediate appellate court for the state of Missouri. The court handles most of the appeals from the Missouri Circuit Courts. The court is divided into three geographic districts: Eastern (based in St. ...
, both considering suits filed by spectators at home games of the
minor league Minor leagues are professional sports leagues which are not regarded as the premier leagues in those sports. Minor league teams tend to play in smaller, less elaborate venues, often competing in smaller cities/markets. This term is used in Nor ...
Kansas City Blues. In the first, considered to be the case that established the rule, the court upheld a trial verdict against the plaintiff, holding that his decision to sit outside the netting the team had installed behind home plate constituted
contributory negligence In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
and
assumption of risk Assumption of risk is a defense, specifically an affirmative defense, in the law of torts, which bars or reduces a plaintiff's right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and kno ...
on his part. Conversely, in the second, decided a year later, the court upheld a verdict ''for'' a plaintiff who had been struck in the eye by a foul ball that passed through a hole in the netting between him and home plate. Other state courts accepted those cases as
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
and used them to decide similar cases. By the 1930s it was interpreted as requiring teams to erect protective screening over the stands behind home plate, a practice that had already become common in the late 19th century due to injuries from foul balls, which rose after an 1884 rule change allowed overhand pitching. Courts have seen it as balancing the team's duty of care toward spectators with the spectators' interest in having an unobstructed view of the game available and perhaps being able to take home a recovered foul ball as a souvenir. It has been held to apply in some other situations besides foul balls—when a player deliberately threw the ball into the stands as a souvenir, for instance—but not in others, such as errant pitches from a
relief pitcher In baseball and softball, a relief pitcher or reliever is a pitcher who enters the game after the starting pitcher is removed because of fatigue (medical), fatigue, ineffectiveness, injury, or ejection (sports), ejection, or for other strategic ...
warming up in the
bullpen In baseball, the bullpen (or simply the pen) is the area where relief pitchers warm up before entering a game. A team's roster of relief pitchers is also metonymically referred to as "the bullpen". These pitchers usually wait in the bullpen if t ...
, situations where multiple balls are in play (such as (formerly)
batting practice B backdoor breaking ball :A breaking pitch, usually a slider, curveball, or cut fastball that, due to its lateral motion, passes through a small part of the strike zone on the outside edge of the plate after seeming as if it would miss the pla ...
), where struck spectators are not in the seating areas of the venue or where they may have been distracted by the team's
mascot A mascot is any human, animal, or object thought to bring luck, or anything used to represent a group with a common public identity, such as a school, professional sports team, society, military unit, or brand name. Mascots are also used as fi ...
. In the wake of some serious injuries caused by foul balls in
Major League Baseball Major League Baseball (MLB) is a professional baseball organization and the oldest major professional sports league in the world. MLB is composed of 30 total teams, divided equally between the National League (NL) and the American League (AL), ...
(MLB) parks in the 2010s, including the first foul-ball spectator death at an MLB game in almost 50 years, there have been calls for the rule to be re-examined or abolished altogether, as more spectators are struck by a foul ball than players in the game are
hit by a pitch In baseball, hit by pitch (HBP) is an event in which a batter or his clothing or equipment (other than his bat) is struck directly by a pitch from the pitcher; the batter is called a hit batsman (HB). A hit batsman is awarded first base, provided ...
. While MLB has required all of its teams to extend their protective screens to cover the area to the far end of the dugout on either side of the field, critics note that it is no longer possible for spectators to choose to sit under those screens given that all seats in the venue are reserved for those who buy them, many for the entire season. Further, they say, balls are hit harder and spectators, who on average now sit closer to the field than they did in 1913, have more distractions. Two states'
supreme court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
s have declined to adopt the rule, which has been criticized as a relic of the era before the adoption of
comparative negligence Comparative negligence, called non-absolute contributory negligence outside the United States, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which t ...
; a widely read '' William and Mary Law Review'' article further argues that the Baseball Rule fails the
law and economics Law and economics, or economic analysis of law, is the application of microeconomic theory to the analysis of law, which emerged primarily from scholars of the Chicago school of economics. Economic concepts are used to explain the effects of laws ...
standards of optimally allocated tort liability.


History


Development of modern game

Professional baseball in the United States began in 1869. In those early years, there was little risk of injury from a ball hit into the stands. While seats were located as close as a few feet (1–2 m) from the foul lines, putting fans at risk of being hit by overthrown balls or lost bats, there was less risk from batted balls. At the time, the rules required
pitcher In baseball, the pitcher is the player who throws ("pitches") the baseball from the pitcher's mound toward the catcher to begin each play, with the goal of retiring a batter, who attempts to either make contact with the pitched ball or draw ...
s to not only deliver the ball underhand, but with their arms barely bent and from below the waist. In addition,
batter Batter or batters may refer to: Common meanings * Batter (cooking), thin dough that can be easily poured into a pan * Batter (baseball), person whose turn it is to face the pitcher * Batter (cricket), a player who is currently batting * Batter ...
s could and did request the ball be pitched to a specific position over the plate.J.G. Hylton,
A Foul Ball in the Courtroom: The Baseball Spectator Injury as a Case of First Impression
, 38 Tulsa L. Rev. 485, 487–88 (2013)
As a result, most games were dominated by offense, with fielding providing most defense, and games often ended with very high scores by modern standards. One or sometimes both teams exceeding 100 runs in a game was not unusual. Pitchers, some of whom had learned to throw the ball very fast even underhand, began to influence the game and drive down scores with the help of gradual rule changes that allowed the ball to be delivered from higher up, with the arm more cocked, making the first
curveball In baseball and softball, the curveball is a type of pitch thrown with a characteristic grip and hand movement that imparts forward spin to the ball, causing it to dive as it approaches the plate. Varieties of curveball include the 12–6 curve ...
s possible. Injuries in the stands from foul balls in the late 1870s earned the area behind home plate the nickname of "the slaughter pit"; the
National League The National League of Professional Baseball Clubs, known simply as the National League (NL), is the older of two leagues constituting Major League Baseball (MLB) in the United States and Canada, and the world's oldest extant professional team s ...
's
Providence Grays The Providence Grays were a Major League Baseball team based in Providence, Rhode Island who played in the National League from until . The Grays played at the Messer Street Grounds in the Olneyville neighborhood. The team won the National Leagu ...
became the first team to erect a protective screen over that section of their park in 1879. In 1884 the evolution to modern pitching was completed when overhand pitching was allowed. Consequently it became much harder for hitters to direct the ball into fair territory when they connected with it. More teams began erecting backstops, as they came to be called, similar to those the Grays had put up, but they were not always popular with fans. The
Milwaukee Milwaukee ( ), officially the City of Milwaukee, is both the most populous and most densely populated city in the U.S. state of Wisconsin and the county seat of Milwaukee County. With a population of 577,222 at the 2020 census, Milwaukee is ...
Northwestern League The Northwestern League was a sports league that operated in the Central United States during the early years of professional baseball for five seasons: 1879, 1883–1884, and 1886–1887. After the 1887 season, the league was replaced by the We ...
team removed theirs after two weeks of fan complaints that they unduly obstructed their view of play.


19th-century tort law

Fatalities from foul balls occurred in the late 19th and early 20th centuries; many of those struck and killed were children watching or otherwise in proximity to amateur games. In one unusual 1902 incident, a 20-year-old Ohio man watching a game was stabbed through the heart when a friend who was lending him a knife was struck by a foul ball as he did; after telling his friends he was not badly hurt, he began bleeding uncontrollably and died a few minutes later. The ''
Washington Star ''The Washington Star'', previously known as the ''Washington Star-News'' and the Washington ''Evening Star'', was a daily afternoon newspaper published in Washington, D.C., between 1852 and 1981. The Sunday edition was known as the ''Sunday Star ...
'' reported in 1888 that a man claiming to have been hit by a ball (whether batted or thrown was not clear) at a
Washington Statesmen Washington commonly refers to: * Washington (state), United States * Washington, D.C., the capital of the United States ** A metonym for the federal government of the United States ** Washington metropolitan area, the metropolitan area centered on ...
game the year before had filed suit; if he had, it did not result in a
published opinion Non-publication of legal opinions is the practice of a court issuing unpublished opinions. An unpublished opinion is a decision of a court that is not available for citation as precedent because the court deems the case to have insufficient precede ...
.''Foul Ball'', 486n4 Media reports from the era suggest that there were other lawsuits besides the 1888 Washington lawsuit against baseball teams over foul ball injuries around the turn of the century, but none were reported. They may have been disposed through settlement, trial or withdrawal. It has also been suggested that the law concerning torts brought by public invitees such as spectators at a baseball game was not seen as favorable to such suits.''Foul Ball'', 489-92 Up to the time of baseball's origins in the United States,
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
treated those on private property not generally open to the public, like sporting venues, but on the property with the owner's permission, as
licensee A licensee can mean the holder of a license or, in U.S. tort law, a licensee is a person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property has allowed the li ...
s. The property owner owed them no other
duty of care In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be establis ...
than to protect them from unforeseeable hazards incident to the conditions of the property. That standard would have likely precluded any suit over injuries from a foul ball as they were a foreseeable risk. However, in 1866 an
English court The courts of England and Wales, supported administratively by His Majesty's Courts and Tribunals Service, are the civil and criminal courts responsible for the administration of justice in England and Wales. The United Kingdom does not have a ...
's decision, ''Indermaur v. Dames'', held that a landowner was indeed liable for damages from personally known hazards or hazards the landowner reasonably could have been expected to. Since the plaintiff was there for business reasons, to inspect a faulty gas regulator, when he fell through the defendant's floor and suffered injury, the
Court of Common Pleas A court of common pleas is a common kind of court structure found in various common law jurisdictions. The form originated with the Court of Common Pleas at Westminster, which was created to permit individuals to press civil grievances against one ...
held Held may refer to: Places * Held Glacier People Arts and media * Adolph Held (1885–1969), U.S. newspaper editor, banker, labor activist *Al Held (1928–2005), U.S. abstract expressionist painter. *Alexander Held (born 1958), German television ...
he was not a licensee but a visitor or
invitee In the law of torts, an invitee is a person who is invited to land by the possessor of the land as a member of the public or one who enters the land of another for the purpose of business dealings with the possessor of the land. The status of a ...
, there to transact business mutually beneficial to both parties, a distinction recent cases had begun to recognize but not formalize. The
Massachusetts Supreme Judicial Court The Massachusetts Supreme Judicial Court (SJC) is the court of last resort, highest court in the Commonwealth (U.S. state), Commonwealth of Massachusetts. Although the claim is disputed by the Supreme Court of Pennsylvania, the SJC claims the di ...
accepted ''Indermaur'' as precedent two years later in a similar case of a ship damaged by a submerged rock, and it would eventually be so recognized by the courts of 26 states''Foul Ball'', 490n28 and the
U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
.'' Bennett v. Railroad Company'', In 1883 the Massachusetts Supreme Court held that a patron of a place of public amusement was an invitee, and that the defendant, a dance hall, had a duty to maintain the premises safely. Legal scholar Seymour Thompson wrote in a popular work on tort law that the duties of business owners towards invitees, or business visitors as they were now known, applied with "special force to ... establishments to which the public are invited in large numbers." As the 20th century dawned, courts had applied that principle to a wide variety of such businesses, including sports venues. However, despite a more favorable legal climate, there were no reported cases over foul ball injuries. Marquette law professor J.G. Hylton, in a history of the origins of the Baseball Rule, notes that the visitor principle had primarily decided cases where the issues with the property had existed prior to the plaintiff's entry on to it and thus a plaintiff could claim both that the defendant knew of the defect and he himself did not, whereas most spectators at a baseball game would have known that foul balls frequently entered the stands at high speed. There had not been many cases where the plaintiffs' knowledge of the possible risks was a factor. Also, at the time, American courts recognized
assumption of risk Assumption of risk is a defense, specifically an affirmative defense, in the law of torts, which bars or reduces a plaintiff's right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and kno ...
and
contributory negligence In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
, when proven, as absolute bars to any recovery by a plaintiff. "If
hey Hey or Hey! may refer to: Music * Hey (band), a Polish rock band Albums * ''Hey'' (Andreas Bourani album) or the title song (see below), 2014 * ''Hey!'' (Julio Iglesias album) or the title song, 1980 * ''Hey!'' (Jullie album) or the title s ...
knew of the dangers of foul balls and chose to sit in an unprotected seat," Hylton writes, "then he or she opened himself up to the charge that his or her own negligence ... had contributed to his or her injury." He also speculates that the dominant cultural ethos of
rugged individualism Rugged individualism, derived from individualism, is a term that indicates that an individual is self-reliant and independent from outside, usually state or government, assistance. While the term is often associated with the notion of ''laissez-fai ...
during the
Gilded Age In United States history, the Gilded Age was an era extending roughly from 1877 to 1900, which was sandwiched between the Reconstruction era and the Progressive Era. It was a time of rapid economic growth, especially in the Northern and Weste ...
and early
Progressive Era The Progressive Era (late 1890s – late 1910s) was a period of widespread social activism and political reform across the United States focused on defeating corruption, monopoly, waste and inefficiency. The main themes ended during Am ...
may have led injured spectators to fault themselves, and only themselves, for their injury. The earliest reported lawsuit over injuries from a batted baseball was filed during the first decade of the 20th century. A man watching a horse race at an
Iowa Iowa () is a state in the Midwestern region of the United States, bordered by the Mississippi River to the east and the Missouri River and Big Sioux River to the west. It is bordered by six states: Wisconsin to the northeast, Illinois to the ...
agricultural fair An agricultural show is a public event exhibiting the equipment, animals, sports and recreation associated with agriculture and animal husbandry. The largest comprise a livestock show (a judged event or display in which breeding stock is exhib ...
was hit by a foul ball from a baseball game being played on the track's infield. He sued the directors of the fair; in 1907 the state's Supreme Court held that the directors were not liable since their organization's purpose was to promote agriculture and the baseball game was not part of that, thus they could not be expected to have knowledge of the risks it posed and there was no
nonfeasance Misfeasance, nonfeasance, and malfeasance are types of failure to discharge public obligations existing by common law, custom, or statute. The Carta de Logu caused Eleanor of Arborea to be remembered as one of the first lawmakers to set up the ...
. The following year, Michigan's Supreme Court took
judicial notice Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well-known, or so authoritatively attested, that it cannot reasonably be doubted. This is done upon the ...
, in a case brought by a patron injured by a foul ball from a nearby game while dancing at a resort, of the inherent risks of watching a baseball game and that every spectator assumed them by choosing to watch:


Establishment of the Baseball Rule


''Crane v. Kansas City Baseball & Exhibition Co.''

In 1913, an appellate court for the first time heard a case against a baseball team arising from a foul ball injury incurred by a paying spectator at the game.''Baseball Rule'', at 71 Three years earlier, Samuel Crane had gone to a home game of the Kansas City Blues, an
American Association American Association may refer to: Baseball * American Association (1882–1891), a major league active from 1882 to 1891 * American Association (1902–1997), a minor league active from 1902 to 1962 and 1969 to 1997 * American Association of Profe ...
class AA
minor league Minor leagues are professional sports leagues which are not regarded as the premier leagues in those sports. Minor league teams tend to play in smaller, less elaborate venues, often competing in smaller cities/markets. This term is used in Nor ...
team, at Association Park in
Kansas City, Missouri Kansas City (abbreviated KC or KCMO) is the largest city in Missouri by population and area. As of the 2020 census, the city had a population of 508,090 in 2020, making it the 36th most-populous city in the United States. It is the central ...
. At the ticket counter, he had the choice of a seat in the
bleachers Bleachers (North American English), or stands, are raised, tiered rows of benches found at sports fields and other spectator events. Stairways provide access to the horizontal rows of seats, often with every other step gaining access to a row ...
, beyond the
outfield The outfield, in cricket, baseball and softball is the area of the field of play further from the batsman or batter than the infield. In association football, the outfield players are positioned outside the goal area. In cricket, baseball and ...
fence, for 25¢ ($ in today's dollars) or in the
grandstand A grandstand is a normally permanent structure for seating spectators. This includes both auto racing and horse racing. The grandstand is in essence like a single section of a stadium, but differs from a stadium in that it does not wrap a ...
, next to the
infield Infield is a sports term whose definition depends on the sport in whose context it is used. Baseball In baseball, the diamond, as well as the area immediately beyond it, has both grass and dirt, in contrast to the more distant, usually grass-c ...
, for twice that price. In either area, all seats were
general admission In live entertainment, there are several possible schemes for the seating assignment of spectators—including completely unassigned seating. There are several schemes which are most commonly used, though there are no hard and fast rules and alter ...
; Crane could sit wherever he wanted if a space was available. By that time protective screens had been installed in every baseball park where the game was played professionally. At minimum they covered the area immediately behind
home plate A baseball field, also called a ball field or baseball diamond, is the field upon which the game of baseball is played. The term can also be used as a metonym for a baseball park. The term sandlot is sometimes used, although this usually refers ...
; the screen at
Association Park Association Park is the name of two different baseball grounds which were located in Kansas City, Missouri, USA. Association Park (I) This ballpark was home to the Kansas City Cowboys (National League), Kansas City Cowboys of the National Leag ...
extended as far as first and third base on either foul line, roughly from home. Crane decided to sit in an area beyond the screen, and at some point during the game was struck by a foul ball and injured; the details are not known. Crane later filed suit in Jackson County Circuit Court,''Foul Ball'', 494 arguing that the Blues had been
negligent Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
and seeking $100 in damages ($ in today's dollars) plus
court costs Court costs (also called law costs in English procedure) are the costs of handling a case, which, depending on legal rules, may or may not include the costs of the various parties in a lawsuit in addition to the costs of the court itself. In the ...
; their duty of
reasonable care In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be establis ...
to him required that they screen off ''all'' the grandstand seats. He and the team stipulated to the facts of the case and agreed to try it as a
question of law In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference ...
. The trial court
held Held may refer to: Places * Held Glacier People Arts and media * Adolph Held (1885–1969), U.S. newspaper editor, banker, labor activist *Al Held (1928–2005), U.S. abstract expressionist painter. *Alexander Held (born 1958), German television ...
for the team; Crane appealed. The Kansas City Division of the
Missouri Court of Appeals The Missouri Court of Appeals is the intermediate appellate court for the state of Missouri. The court handles most of the appeals from the Missouri Circuit Courts. The court is divided into three geographic districts: Eastern (based in St. ...
affirmed the judgement. Citing the Michigan Supreme Court's 1908 ''
dictum In general usage, a dictum ( in Latin; plural dicta) is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, ''dictum'' can have a specific meaning. Legal writing In United States legal ter ...
'', it held that Crane had assumed the risks of watching a baseball game when he chose to attend. Since given a choice between protected and unprotected seats, Crane chose the latter (for the unobstructed view, the court speculated), there was
contributory negligence In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
on his part and the team was not liable. "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", wrote Judge W.O. Jackson. "That is a fundamental rule of the law of negligence." Almost a century later, Hylton observed that despite Crane's failure to win his case, the court's decision did impose two requirements on teams. While they avoided a requirement they screen off all seats and end the practice of offering
standing room only An event is described as standing-room only when it is so well-attended that all of the chairs in the venue are occupied, leaving only flat spaces of pavement or flooring for other attendees to stand, at least those spaces not restricted by occup ...
attendance behind the outfield fence to latecomers at sold-out games, both of which would have likely reduced attendance, the court did hold that teams owed a duty of reasonable care to fans, which specifically meant that they should offer at least some protected seating. "This responsibility could not be shirked," Hylton wrote, "and it did not matter either if the patron knew of the danger before attending or was informed of it upon entering the park."''Foul Ball'', 496–7


''Edling v. Kansas City Baseball & Exhibition Co.''

Within a year another case of a fan injured by a foul ball at a Blues game came before the same court, allowing it to apply and clarify the rule. The circumstances of this case were markedly different, and the court found for the plaintiff, one Edling. In 1911, Charles Edling, like Crane, went to a Blues home game. He, too, paid the higher price for a grandstand seat, but unlike Crane chose to sit behind the netting, halfway up the stands from the field level, on almost a line with home plate and the
pitcher's mound A baseball field, also called a ball field or baseball diamond, is the field upon which the game of baseball is played. The term can also be used as a metonym for a baseball park. The term sandlot is sometimes used, although this usually refers ...
so he could see pitches curve. During the game, Edling lost sight of one of the many foul balls until it struck him in the eye, having passed through a square-foot () hole in the netting. The injuries were serious, including a broken nose as well as the eye damage, and Edling filed suit, demanding $3,500 ($ in today's dollars) plus court costs. Since there was a factual dispute as to the condition of the screen—the team claimed it was new and in perfect condition, while fans who had attended other games testified that it had had many holes which had gone unrepaired for a long time—the case was heard by a jury. The team mounted two other defenses: that even in perfect condition a screen unobtrusive enough to not detract from spectators' enjoyment of the game could not also be strong enough to stop ''all'' foul balls, and that Edling had also been contributorily negligent by failing to keep track of the ball that had hit him after it had been hit (to that, Edling's lawyer responded that if the Blues' players had kept their eyes on the ball as well as the team's lawyers said Edling should have, the team would have had a much better season). The jury found for Edling and the Blues appealed. In response to the team's claim that the jury should not have heard the testimony about the condition of the screen, the appeals court relied on ''Crane'' to hold that by purposely sitting behind the screen, Edling could reasonably assume he was safe from foul balls. "It was the duty of defendant to keep the screen free from defects, and if it id not the jury could properly infer that it ... was guilty of negligence." "We must also ignore the suggestion that creening capable of blocking all foul balls would be too hard to see through, the court said. Evidence at trial, it explained, had shown that a mesh of
chicken wire Chicken wire, or poultry netting, is a mesh of wire commonly used to fence in fowl, such as chickens, in a run or coop. It is made of thin, flexible, galvanized steel wire with hexagonal gaps. Available in 1 inch (about 2.5 cm) diameter, ...
similar to that used at Association Park could stop any batted ball with minimal impact on spectators' view, when properly maintained. Citing Edling's attorney's comment, the court also agreed it was not Edling's responsibility to avoid injury by keeping track of the ball at all times. "The uncertainty in the direction, speed and force of a batted ball is one of the interesting and exciting features of the game," the court observed, "and frequently it is difficult for even a trained eye to follow the course of the ball." Hylton reads ''Edling'' as contractualizing the relationship between team and spectator in the area of foul ball risk and protection. By screening off some of the seats, a team implicitly guaranteed to the spectators who chose to sit behind the screen that it would be in sufficient condition to protect them from foul ball injuries, unless (as the team claimed Edling had) they knowingly remained in front of a defective portion. "While not obligated to screen every seat in the park", he comments, "the team was obligated not only to provide protected seats for fans who desired them but also to maintain those seats in a reasonable manner."''Foul Ball'', 500


Precedence and evolution

''Crane'' became
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
outside Missouri before ''Edling'' was even heard there. Later in 1913, the
Minnesota Supreme Court The Minnesota Supreme Court is the Supreme court, highest court in the U.S. state of Minnesota. The court hears cases in the Supreme Court chamber in the Minnesota State Capitol or in the nearby Minnesota Judicial Center. History The court wa ...
considered a case, like Crane's, brought by a spectator who had chosen to sit in an unprotected area of the stands and been injured by a foul ball. The plaintiff, a woman who was attending a baseball game for the first time ever on Ladies' Day, had won in the lower courts, but the state's highest court overturned the verdict, citing the case's similarities to ''Crane'' and quoting from that opinion extensively. Unlike Crane, the plaintiff argued that she had had no familiarity with the game and thus should at least have been warned about the possibility of injury from a foul ball, but the court did not distinguish her case from Crane's on that basis. Washington's Supreme Court relied on ''Crane'' in 1919 to reverse an earlier case in which it had allowed an injured spectator to proceed with his suit. The circumstances were similar—the plaintiff had chosen to sit in unprotected seating where protected seats had been available—but the plaintiff in ''Kavafian v. Seattle Baseball Club Association'' had initially argued that the team's negligence lay in having changed its mind about where to put screening, as Kavafian's seat was located in an area of the stadium originally intended to have it. Per ''Crane'', the court again found that as long as the team had made some protected seats available a spectator who chose not to sit there assumed all the risk. In 1929 the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
in neighboring
Oregon Oregon () is a U.S. state, state in the Pacific Northwest region of the Western United States. The Columbia River delineates much of Oregon's northern boundary with Washington (state), Washington, while the Snake River delineates much of it ...
was confronted with a first-impression variation on the foul-ball injury. A man who had attended a game in
Portland Portland most commonly refers to: * Portland, Oregon, the largest city in the state of Oregon, in the Pacific Northwest region of the United States * Portland, Maine, the largest city in the state of Maine, in the New England region of the northeas ...
four years earlier and sat near the edge of a screen was nevertheless struck and permanently injured by a foul ball that curved behind it. At trial he had prevailed and been awarded $3,000 ($ in today's dollars), which was upheld on appeal. However, the state Supreme Court held that such an unusual trajectory for a foul ball was so unforeseeable that the team could not reasonably be expected to protect spectators from a ball so hit and vacated the award. Joan Quinn, a
San Francisco San Francisco (; Spanish language, Spanish for "Francis of Assisi, Saint Francis"), officially the City and County of San Francisco, is the commercial, financial, and cultural center of Northern California. The city proper is the List of Ca ...
teenager who attended a 1929 game of the
Pacific Coast League The Pacific Coast League (PCL) is a Minor League Baseball league that operates in the Western United States. Along with the International League, it is one of two leagues playing at the Triple-A (baseball), Triple-A level, which is one grade bel ...
's
Seals Seals may refer to: * Pinniped, a diverse group of semi-aquatic marine mammals, many of which are commonly called seals, particularly: ** Earless seal, or "true seal" ** Fur seal * Seal (emblem), a device to impress an emblem, used as a means of a ...
at Recreation Park, asked to be seated behind the screen but was told by the usher that none were available at that time, so she sat in an unprotected seat expecting the usher would find a protected one. A foul ball hit by
Gus Suhr August Richard Suhr (January 3, 1906 – January 15, 2004) was a Major League Baseball (MLB) first baseman. Suhr was born in San Francisco, California. The fourth son of August H Suhr and Elise (Nobmann) Suhr, both of German descent. He batted lef ...
struck and injured her. She sued not only the club but Suhr,''Injuries'', at 199 the first reported instance in which a plaintiff named a batter as a defendant in addition to the team in a foul ball tort, arguing that since she had requested a protected seat she had not voluntarily assumed the risk of the injury that befell her. At trial the judge granted the team's motion for a
directed verdict In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. In a bench trial, the judge's decision near the end of the trial is simply referred to as a finding. In England and Wales, ...
in their favor after Quinn presented her case. On appeal the court took note that while protected seats were available elsewhere in the grandstand, she had nonetheless insisted on sitting near first base, and upheld the ruling, saying that she had temporarily assumed the risk. The
California Supreme Court The Supreme Court of California is the highest and final court of appeals in the courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly holds sessions in Los Angeles and Sacra ...
agreed and saw fit to reprint the entire appellate opinion. A 1930 incident concerned a ball hit fairly, though not during the actual game. The plaintiff went to a game in
New Orleans New Orleans ( , ,New Orleans
Merriam-Webster.
; french: La Nouvelle-Orléans , es, Nuev ...
and bought a ticket to the bleachers, from home plate and protected by a five-foot-high () screen at field level. While walking to his seat before the game, he was hit by a ball from
batting practice B backdoor breaking ball :A breaking pitch, usually a slider, curveball, or cut fastball that, due to its lateral motion, passes through a small part of the strike zone on the outside edge of the plate after seeming as if it would miss the pla ...
, to which he had not paid attention, and his jaw was broken. The following year the
Louisiana Supreme Court The Supreme Court of Louisiana (french: Cour suprême de Louisiane) is the highest court and court of last resort in the U.S. state of Louisiana. The modern Supreme Court, composed of seven justices, meets in the French Quarter of New Orlea ...
upheld a judgement for the team, finding the case fundamentally similar to ''Crane'', with the plaintiff's inattention to the game similarly constituting contributory negligence and the team having satisfied its duty as the grandstand was already properly screened.''Injuries'', 203–204


''Grimes v. American League Baseball Club''

In one unusual case, also from Missouri, a court did hold that a plaintiff sitting in unprotected seating could recover. On the last day of the
St. Louis Browns The St. Louis Browns were a Major League Baseball team that originated in Milwaukee, Wisconsin, as the Milwaukee Brewers. A charter member of the American League (AL), the Brewers moved to St. Louis, Missouri, after the 1901 season, where they ...
' 1931 season at
Sportsman's Park Sportsman's Park was the name of several former Major League Baseball ballpark structures in St. Louis, Missouri. All but one of these were located on the same piece of land, at the northwest corner of Grand Boulevard and Dodier Street, on the ...
, Violet Grimes attended, with a date, and chose to sit near third base at field level, well outside the area screened behind home plate. To accommodate extra crowds expected for that year's World Series, in which the
Cardinals Cardinal or The Cardinal may refer to: Animals * Cardinal (bird) or Cardinalidae, a family of North and South American birds **''Cardinalis'', genus of cardinal in the family Cardinalidae **''Cardinalis cardinalis'', or northern cardinal, the ...
, who shared the park with the Browns, were hosting the first two games against the
Philadelphia Athletics The Philadelphia Athletics were a Major League Baseball team that played in Philadelphia from 1901 to 1954, when they moved to Kansas City, Missouri, and became the Kansas City Athletics. Following another move in 1967, the team became the Oaklan ...
starting the next day, temporary wooden seats had been built and added, extending into the field. In the second game of a doubleheader with the
Chicago White Sox The Chicago White Sox are an American professional baseball team based in Chicago. The White Sox compete in Major League Baseball (MLB) as a member club of the American League (AL) Central division. The team is owned by Jerry Reinsdorf, and p ...
a foul ball ricocheted off the railing on the temporary seating and into Grimes' eye. Grimes prevailed at trial and was awarded $5,000 by the jury ($ in today's dollars). The Browns appealed; the court upheld the verdict, noting that the distance between the foul lines and the stands existed for a reason and that the temporary seating (closed to spectators that day) distinguished the case from ''Crane'' and the others like it in that it was not an ordinary part of games at the park. " aintiff was subjected," the court wrote, "not only to the usual and ordinary perils of the game when played under its usual and ordinary conditions ... but also to an unusual and extraordinary hazard which had concededly been put in the park to meet unusual conditions and which was not even designed or intended to serve a purpose at the game plaintiff was attending."''Grimes'', at 524


''Brisson v. Minneapolis Baseball & Athletic Association''

Overall, in the two decades after ''Crane'' courts in six more states would rely on it as precedent and reaffirm that reliance;''Foul Ball'', 501n89 by the 1930s it was seen as a seminal case in the area of landowner liability, specifically the liability of sporting venue operators.''Foul Ball'', 501 The most significant of those cases came from the latter line when the Minnesota Supreme Court heard ''Brisson v. Minneapolis Baseball & Athletic Association'' in 1932. It settled two questions ''Crane'' and the courts that relied on it had not.''Baseball Rule'', 74–76 Brisson alleged that he had intended to sit in the protected area, but found all the seats there filled. So he sat instead in an unprotected seat, where like the other plaintiffs he was hit by a foul ball and injured. He argued that ''Crane'' required the team to ensure that protected seats were available for any spectator who wanted one; thus, the lack of availability of such seats negated any assumption of risk on his part. A verdict in the plaintiff's favor, too, was appealed again to the state's highest court and overturned, as the justices believed that reasonable care did not require making unprotected seats available for ''anyone'' who wanted them. What it ''did'' require was that teams make a reasonable amount of such seats available as to satisfy the typical demand for them, ''and'' that the "most dangerous" area of the stands be so screened. While the Minnesota Supreme Court did not specify any part of the stands at a baseball game, later courts more explicitly stated this to be the seats behind home plate, which had already been screened at most baseball parks since the 1880s.


Mid-20th century evolution

In 1942, when deciding ''Hudson v. Kansas City Baseball Club'', which held that a plaintiff asserting that he had believed that a reserved seat he bought a ticket for was protected was not sufficiently different from other cases as to warrant an exception to the rule, the
Missouri Supreme Court The Supreme Court of Missouri is the highest court in the state of Missouri. It was established in 1820 and is located at 207 West High Street in Jefferson City, Missouri. Missouri voters have approved changes in the state's constitution to give ...
noted that ''Crane'' and ''Edling'' "have become leading cases throughout the country" in torts related to foul ball injuries. The following year a spectator struck in the abdomen by a foul at a 1941
Columbus Red Birds The Columbus Red Birds were a top-level minor league baseball team that played in Columbus, Ohio, in the American Association from 1931 through 1954. The Columbus club, a member of the Association continuously since 1902, was previously known as ...
game, one of the earliest to be played at night, argued that the team should have provided sufficient illumination for those in unprotected seating, as he was that night, to be able to see the ball should it come into the stands, appealed the directed verdict for the team. The
Ohio Court of Appeals The Ohio District Courts of Appeals are the intermediate appellate courts of the U.S. state of Ohio. The Ohio Constitution provides for courts of appeals that have jurisdiction to review final appealable orders. There are twelve appellate districts ...
divided, with two of the three judges declining to distinguish night games. "If the risk was greater due to the fact that it was a night game played under artificial lights, by the same token the plaintiff was under greater obligation to protect himself by seeking a position of safety behind screens." The dissenting judge argued that that was a factual question a jury should have been allowed to decide, saying "it would be a dangerous policy for the law to pronounce a principle of immunity to ball clubs against ordinary care as related to the construction of its stands or the location or the placing of equipment which has to do with the safety of its patrons." An appeals court in neighboring
Indiana Indiana () is a U.S. state in the Midwestern United States. It is the 38th-largest by area and the 17th-most populous of the 50 States. Its capital and largest city is Indianapolis. Indiana was admitted to the United States as the 19th s ...
later that year also declined to distinguish an injury resulting from a fellow spectator's attempt to throw the foul back on the field, holding that that too was part of the game. "The danger of a ball thrown by a spectator toward the playing field while play is in session seems to us to be an ordinary hazard of the game" wrote the court in ''Emhardt v. Perry Stadium'', noting also that the plaintiff had testified she and her husband had regularly attended games at the park for four years prior to the 1937 incident. It affirmed summary judgement for the defendant team and park. Since ''Brisson'' had specified the terms under which teams needed to provide screening, plaintiffs seeking to recover began basing their challenges on their lack of knowledge of the risks. These cases generally involved women who had accompanied their husbands or sons to the ballpark. The first such case had been decided the year before, when a Texas appeals court heard ''Keys v. Alamo City Baseball Co.''. Keys had taken her son to a
Texas League The Texas League is a Minor League Baseball league which has operated in the South Central United States since 1902. It is classified as a Double-A league. Despite the league's name, only its five South Division teams are actually based in the ...
game in
San Antonio ("Cradle of Freedom") , image_map = , mapsize = 220px , map_caption = Interactive map of San Antonio , subdivision_type = Country , subdivision_name = United States , subdivision_type1= U.S. state, State , subdivision_name1 = Texas , s ...
, where they both sat in unprotected seats far from the backstop. During the fifth or sixth inning, she was struck in the chest by a foul ball her son had ducked while she had been talking to a friend seated several rows behind her. To overcome the team's
assumption of risk Assumption of risk is a defense, specifically an affirmative defense, in the law of torts, which bars or reduces a plaintiff's right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and kno ...
defense, she argued that she was not that familiar with the game, having only attended one other baseball contest several years earlier. While it found the team partially negligent in that the usher who had directed her and her son to the seats did not warn them there was no protection there from foul balls, the court disagreed with claim of ignorance of the hazard, noting that the record showed that her son, aged 14, had gone to other games at the park and often played or threw baseballs in and around the home, suggesting "he was a baseball 'fan', as is nearly every normal American boy." Even if Keys had not taken note of this, the court added, she had been at the game for long enough to see, as her son had pointed out to her, that quite a few foul balls go into the stands. In yet another case from Kansas City, brought by a woman who moved with her son to unprotected seats at a 1947 game on the usher's apparent assurance that they were safe only to be hospitalized after the ensuing injury, the Missouri Supreme Court called the dangers of being struck by a foul ball "open and obvious to any one who possesses normal powers of observation. A knowledge of the rules or strategy of the game is not necessary to a realization of such hazard."


''Schentzel v. Philadelphia National League Club''

A
Pennsylvania Superior Court The Superior Court of Pennsylvania is one of two Pennsylvania intermediate appellate courts (the other being the Commonwealth Court of Pennsylvania). It is based in Harrisburg. Jurisdiction The Superior Court hears appeals in criminal and most ...
panel echoed ''Keys'' in 1953's ''Schentzel v. Philadelphia National League Club'' when it overturned a jury verdict in favor of a woman who had gone with her husband to see a
Philadelphia Phillies The Philadelphia Phillies are an American professional baseball team based in Philadelphia. They compete in Major League Baseball (MLB) as a member of the National League (NL) National League East, East division. Since 2004, the team's home sta ...
doubleheader at
Shibe Park Shibe Park, known later as Connie Mack Stadium, was a ballpark located in Philadelphia. It was the home of the Philadelphia Athletics of the American League (AL) and the Philadelphia Phillies of the National League (NL). When it opened April 12, 1 ...
in 1949. The couple had driven to Philadelphia from
Allentown Allentown may refer to several places in the United States and topics related to them: * Allentown, California, now called Toadtown, California * Allentown, Georgia, a town in Wilkinson County * Allentown, Illinois, an unincorporated community in T ...
and arrived late, at the start of the first game's seventh inning. They had been assured by the ticket seller that their seats, in the upper deck, were behind the screen. When they found out that they were not, rather somewhat displaced towards first base, they resolved to see if they could exchange their tickets for a pair to seats that were, but due to crowds in the aisle, they chose to wait until that trip could be made more easily. Roughly two minutes afterwards, 10 minutes after they arrived, the woman was injured by a foul ball. Schentzel made the novel argument that teams should install extra screening on Ladies' Days, such as the one she had attended, since many women were admitted for free and it could not be expected that most of them would be familiar with the game. But as in the Texas case, the Pennsylvania court did not find it plausible at that time that the plaintiff could be ignorant of the fact that foul balls went into the stands, her testimony that the game was the first she had ever attended and the minimal amount of time she and her husband had been at the game notwithstanding. Starting from the premise that she was a middle-aged woman of normal intelligence, the court reiterated the holding of ''Keys'' in this regard:


First major league foul ball death

In 1970, for the first time, a spectator died of injuries from a foul ball at a major league game. Alan Fish, 14, went to the
Los Angeles Dodgers The Los Angeles Dodgers are an American professional baseball team based in Los Angeles. The Dodgers compete in Major League Baseball (MLB) as a member club of the National League (NL) West division. Established in 1883 in the city of Brooklyn ...
May 16 home game at
Dodger Stadium Dodger Stadium is a baseball stadium in the Elysian Park neighborhood of Los Angeles, California. It is the home stadium of Major League Baseball's Los Angeles Dodgers. Opened in 1962, it was constructed in less than three years at a cost of ( ...
against the
San Francisco Giants The San Francisco Giants are an American professional baseball team based in San Francisco, California. The Giants compete in Major League Baseball (MLB) as a member club of the National League (NL) West division. Founded in 1883 as the New Yor ...
with other boys from his recreational program and the program director, where they sat in the second row at field level along the first base line. A
Manny Mota Manuel Rafael Mota Geronimo, more commonly known as Manny Mota (born February 18, 1938), is a Dominican former Major League Baseball outfielder who played 20 seasons for the San Francisco Giants, Pittsburgh Pirates and Montreal Expos, as well a ...
foul hit Fish on the back of the head, above his ear, in the bottom of the third. Fish initially lost consciousness, but regained it after a minute and appeared to have recovered completely by the end of the game. However, on his ride home he began experiencing dizziness, and by the time he returned his parents took him to three hospitals in order to find one that would treat him. His condition deteriorated and surgery could not be done; Fish died after being taken off life support three days later. The Fishes brought suit against the Dodgers, the medical facilities and the first physician to see their son, asking $1 million in damages. They alleged the team had been negligent in designing and operating the stadium, and along with the other defendants had been negligent in treating Alan. The trial judge disallowed the first count against the Dodgers, and before trial the Fishes dropped suit against the medical facilities. When it finally came to trial in 1973, the jury initially deadlocked, but after the judge pressured them to keep deliberating, they found for the defendants. Three years later an appeals court reversed the trial court on the grounds of a
jury instruction Jury instructions, directions to the jury, or judge's charge are legal rules that jurors should follow when deciding a case. They are a type of jury control procedure to support a fair trial. Description Jury instructions are the set of legal ...
that should have been given but was not.


1970s-80s: Comparative negligence

With plaintiffs now effectively denied the opportunity to recover based on their own level of knowledge of the game, lawyers began adding the claim that teams were negligent in failing to warn spectators about the dangers of foul balls. Many states had reformed their tort laws, with courts and/or legislatures embracing the newer doctrine of
comparative negligence Comparative negligence, called non-absolute contributory negligence outside the United States, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which t ...
,
assumption of risk Assumption of risk is a defense, specifically an affirmative defense, in the law of torts, which bars or reduces a plaintiff's right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and kno ...
and
contributory negligence In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
, the pillars of the Baseball Rule in ''Crane'', were no longer absolute defenses and a plaintiff whose own negligence had contributed to their injury could still recover, albeit less than what they had demanded, as long as they were found to be less than 50 percent at fault. These cases left the Baseball Rule intact; courts in California, New York and Texas wrote influential rulings declining to revisit it, although not without some skepticism, and an outright dissent in New York. These favorable verdicts notwithstanding, teams ''did'' begin to take some steps to warn fans of the danger from foul balls. Waivers were printed on the back of tickets,, as cited at ''Baseball Rule'', 65n16 and teams began having announcements read over the park's
public address A public address system (or PA system) is an electronic system comprising microphones, amplifiers, loudspeakers, and related equipment. It increases the apparent volume (loudness) of a human voice, musical instrument, or other acoustic sound sou ...
system reminding fans to stay alert at ''any'' time balls were in use on the field, not just during play.Christopher Yamaguchi, "The Price of Admission: Liability in Professional Baseball and Hockey For Spectator Injuries Sustained During the Course of the Game" (2013)
Seton Hall University School of Law Seton Hall University School of Law is the law school of Seton Hall University, and is located in downtown Newark, New Jersey. Seton Hall Law is the only private law school in New Jersey, and, according to the ''U.S. News & World Report'' ranking ...
Student Scholarship, 18
In declining to revisit the Baseball Rule without contributory negligence and assumption of risk as absolute defenses to suits over foul ball injuries, courts revised the duty of care owed by teams to spectators. ''Crane'' had stated that it arose out of reasonable care, but the decisions of the 1980s held that a team owed either a limited duty or no duty at all to spectators beyond that established by the Baseball Rule.''Baseball Rule'', 80–83


''Akins v. Glens Falls City School District''

In 1981's ''Akins v. Glens Falls City School District'', the
New York Court of Appeals The New York Court of Appeals is the highest court in the Unified Court System of the State of New York. The Court of Appeals consists of seven judges: the Chief Judge and six Associate Judges who are appointed by the Governor and confirmed by t ...
, the highest court of a state that had been one of the first to adopt comparative negligence, heard the first case challenging the Baseball Rule under that doctrine.C. P. Goplerud III. & Nicolas P. Terry,
Allocation of Risk between Hockey Fans and Facilities: Tort Liability after the Puck Drops
, 38 Tulsa L. Rev. 445, 461–462 (2013).
Five years earlier, Akins had attended one of her son's high school baseball games. Arriving after it had started, she chose to watch, standing since there were no seating facilities available, behind a three-foot-high (1 m) chainlink fence that ran from the backstop along the third base line, approximately from the plate. Within 10 minutes, a foul ball hit her in the eye, causing permanent injury. At trial, she asked $250,000 ($ in today's dollars) alleging the school district could have put wings equal in height to the backstop's to both bases at minimal cost; the jury found the school district liable and awarded her $100,000, finding her only 35 percent liable for her injury. A five-judge panel of the state's Appellate Division divided narrowly in upholding her appeal, with the dissenting justices arguing that Akins had not proved the school district negligent, and the case went to the Court of Appeals. The judges there also divided narrowly, reversing the appeals court. Judge
Matthew J. Jasen Matthew Joseph Jasen (December 13, 1915 – February 4, 2006) was an American lawyer and politician. Life Born in Buffalo, New York, he was the son of Joseph J. Jasen and Celine (Perlinski) Jasen. He graduated from Canisius College, and LL.B. fro ...
's
majority opinion In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision. Not all cases have ...
held that the standard set by ''Brisson'' almost half a century earlier—screening behind the plate at least and protected seating available for the number of spectators who could reasonably be expected to want it—still applied. Since that had been provided, the school district had met the duty of reasonable care (which was now required of New York landowners regardless of the category of visitor) and was not liable; Jasen did not think the court needed, given that holding, to reconsider the Baseball Rule under comparative negligence. The court's chief judge,
Lawrence H. Cooke Lawrence Henry Cooke (October 15, 1914, Monticello, Sullivan County, New York – August 17, 2000, Monticello, Sullivan Co., NY) was an American lawyer and politician from New York. He was Chief Judge of the New York Court of Appeals from 1979 ...
, wrote the
dissent Dissent is an opinion, philosophy or sentiment of non-agreement or opposition to a prevailing idea or policy enforced under the authority of a government, political party or other entity or individual. A dissenting person may be referred to as ...
. He and his two colleagues accused the majority of usurping the jury's task. "This attempt to precisely prescribe what steps the proprietor of a baseball field must take to fulfill its duty of reasonable care is unwarranted and unwise ... thas in effect undertaken the task of prescribing the size, shape and location of backstops and other protective devices." Cooke noted that the jury in the case had heard testimony that it was relatively inexpensive to add those wings to the backstop and that they were common in the area, that school district officials knew that fouls went over the fence but posted no signs warning of them, and that the batter who had hit the foul in a varsity high school contest was a powerful enough hitter to have made it to the major leagues by the time the Court of Appeals heard the case. Lastly he charged that the majority had, by refusing to consider comparative negligence in this case, effectively negated it as a concept.''Akins'', 333–37


''Rudnick v. Golden West Broadcasters''

Three years later, an appeals court in another comparative negligence state, California, considered a foul ball case in that light. Loretta Rudnick, after being struck and injured by a foul ball at a
California Angels The Los Angeles Angels are an American professional baseball team based in the Los Angeles metropolitan area. The Angels compete in Major League Baseball (MLB) as a member club of the American League (AL) West division. Since 1966, the team ha ...
game, brought suit against the team. While she had been sitting in an unprotected area of
Anaheim Stadium Angel Stadium of Anaheim is a baseball stadium located in Anaheim, California. Since its opening in 1966, it has served as the home ballpark of the Los Angeles Angels of Major League Baseball (MLB), and was also the home stadium to the Los Angel ...
near first base, she argued that that was no longer a valid defense for the team, since under comparative negligence her stated lack of familiarity with baseball and consequent assumption that all seats were safe made her responsibility a triable issue of fact. After presenting her case, the trial court had granted the Angels' motion for
summary judgement may refer to: * Abstract (summary), shortening a passage or a write-up without changing its meaning but by using different words and sentences * Epitome, a summary or miniature form * Abridgement, the act of reducing a written work into a sho ...
. The appeals court reversed, but only because it felt the Angels' motion had not met the standard for summary judgement. In asserting that 2,300 protected seats were available, the motion neglected in the court's opinion to note that that number was but a tenth of the crowd the team typically drew, nor did it make any effort to show how that was a reasonable amount to have available, especially when most of those seats were reserved for season ticket holders. The rest of its opinion went on to reassert the validity of the Baseball Rule, as recognized by the state's Supreme Court in ''Quinn'' a half-century earlier, in the comparative negligence environment, allowing in the process that " e law has traditionally treated the national pastime in a ''
sui generis ''Sui generis'' ( , ) is a Latin phrase that means "of its/their own kind", "in a class by itself", therefore "unique". A number of disciplines use the term to refer to unique entities. These include: * Biology, for species that do not fit in ...
'' manner" For spectators, it concluded, "the chance to apprehend a misdirected baseball is as much a part of the game as the
seventh inning stretch In baseball in the United States and Canada, the seventh-inning stretch is a long-standing tradition that takes place between the halves of the seventh inning of a game. Fans generally stand up and stretch out their arms and legs and sometimes wa ...
or peanuts and
Cracker Jack Cracker Jack is an American brand of snack food that consists of molasses-flavored, caramel-coated popcorn, and peanuts, well known for being packaged with a prize of trivial value inside. The Cracker Jack name and slogan, "The More You Eat The ...
." A
concurring In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for their deci ...
justice agreed that the Angels had not satisfied the requirement of demonstrating that no issue of fact existed, but took issue with the majority's reaffirmation of the Baseball Rule. "They find, quite remarkably, that ''Quinn'' ... is still a beacon of enlightened tort law." He cited the many changes made to baseball since 1935 as parallel to changes in tort law. Baseball had indeed gotten ''sui generis'' treatment from the law, he agreed, but "there is absolutely no support to suggest it is above the law and insulated from the duty and liabilities imposed on others. Say it ain't so, Joe!"


''Friedman v. Houston Sports Association''

Three years after ''Rudnick'', a Texas appeals court likewise rejected the notion that the move to comparative negligence required reassessing the Baseball Rule. After an 11-year-old girl had been struck in the face by a foul while sitting near first base at a 1978
Houston Astros The Houston Astros are an American professional baseball team based in Houston, Texas. The Astros compete in Major League Baseball (MLB) as a member club of the American League (AL) West division, having moved to the division in 2013 after ...
game, she and her father were awarded $180,000 in actual and punitive damages, which the judge then
set aside Set-aside was an incentive scheme introduced by the European Economic Community (EEC) in 1988 (Regulation (EEC) 1272/88), to (i) help reduce the large and costly surpluses produced in Europe under the guaranteed price system of the Common Agricul ...
on a defense motion. In affirming, the appeals court first reiterated the holding from ''Keys'' that it would be "absurd, and no doubt ... resented by many patrons"''Keys'', at 371 to expect a baseball team to individually warn everyone entering the park of the dangers from foul balls leaving the field of play. It then rejected the argument that the state's recent move to comparative negligence required it to reconsider the Baseball Rule, noting that neither New York nor California had, either. "Comparative negligence does not create a duty," it wrote. Like ''Akins'' and ''Rudnick'', the decision came with some skepticism. A concurring justice noted that while he agreed with the decision since Friedman had been accompanied by her father, he was troubled by the court's willingness to discard the jury's findings that her father had not himself been negligent. He speculated that there would be situations in which a duty to warn could be found, perhaps if a young child entered the venue unsupervised, even though his or her parents might be held negligent for allowing that.''Friedman'', 575–77


1990s–present: Reconsideration

In 1992 appeals courts in
Chicago (''City in a Garden''); I Will , image_map = , map_caption = Interactive Map of Chicago , coordinates = , coordinates_footnotes = , subdivision_type = Country , subdivision_name ...
, hearing the cases of two spectators who had been injured at games of both of the city's MLB teams, showed less deference to the Baseball Rule than courts previously had. The
state legislature A state legislature is a legislative branch or body of a political subdivision in a federal system. Two federations literally use the term "state legislature": * The legislative branches of each of the fifty state governments of the United Sta ...
responded by codifying the rule into statute. In the 21st century, courts in
Idaho Idaho ( ) is a state in the Pacific Northwest region of the Western United States. To the north, it shares a small portion of the Canada–United States border with the province of British Columbia. It borders the states of Montana and Wyom ...
,
Indiana Indiana () is a U.S. state in the Midwestern United States. It is the 38th-largest by area and the 17th-most populous of the 50 States. Its capital and largest city is Indianapolis. Indiana was admitted to the United States as the 19th s ...
, and
New Mexico ) , population_demonym = New Mexican ( es, Neomexicano, Neomejicano, Nuevo Mexicano) , seat = Santa Fe , LargestCity = Albuquerque , LargestMetro = Tiguex , OfficialLang = None , Languages = English, Spanish ( New Mexican), Navajo, Ker ...
declined to adopt it, although in the latter instance that state's
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
overruled the decision.


''Coronel v. Chicago White Sox''

Blanca Coronel's lawsuit against the
White Sox The Chicago White Sox are an American professional baseball team based in Chicago. The White Sox compete in Major League Baseball (MLB) as a member club of the American League (AL) Central division. The team is owned by Jerry Reinsdorf, and p ...
had little to distinguish it from other cases in the Baseball Rule line. She had gone to
Comiskey Park Comiskey Park was a baseball park in Chicago, Illinois, located in the Armour Square neighborhood on the near-southwest side of the city. The stadium served as the home of the Chicago White Sox of the American League from 1910 through 1990. Buil ...
in 1986 to attend her first Sox game, where she sat behind the plate, five rows from the field and three seats outside the edge of the backstop. In the sixth inning, she reached down for some popcorn and when she looked up, a foul ball struck her in the face and broke her jaw. The trial court hearing her suit granted summary judgement for the team, and she appealed, arguing the team's duties to her rested on questions of triable fact. Unlike its predecessors in the other large states, however, the
Illinois Appellate Court The Illinois Appellate Court is the court of first appeal for civil and criminal cases rising in the Illinois Circuit Courts. Three Illinois Appellate Court judges hear each case and the concurrence of two is necessary to render a decision. The ...
declined to reaffirm the Baseball Rule. Justice
Anthony Scariano Anthony Scariano (January 12, 1918 – April 17, 2004) was an American judge, politician, and lawyer. Born in Chicago, Illinois, Scariano went to Lane Tech High School and graduated from Wells High School. Scariano received his bachelor's deg ...
reviewed other cases, from Illinois and other states, including ''Wells'' and ''Akins'', to conclude that "we cannot accept the suggestion advanced by the Sox that it should be they and not the jury who should determine the adequacy of the protection afforded its fans at a baseball game." The Sox' backstop, he pointed out, was only wide, narrower than the one at the high school game in ''Akins'', and a jury thus could consider whether that was sufficient protection.''Coronel'', 47–48 Scariano also rejected the team's argument that it owed Coronel no duty to warn her of the hazards of foul balls beyond the language on the ticket and a warning on the scoreboard during the game.''Coronel'', 48–50 Illinois case law since the state's move to comparative negligence had held that even in the case of "open and obvious" dangers like foul balls landowners might still be found to have a duty to warn. One of the factors that might trigger that duty was the possibility that a visitor might have his or her attention diverted in a way that increased their risk of injury from the hazard,. The plaintiff had been injured when he walked into a post in front of the store carrying a large mirror in front of him that blocked his view. This Scariano saw as an especially apt point for baseball spectators: The court remanded the case so a jury could decide the questions of fact.


''Yates v. Chicago National League Baseball Club''

Around the same time, a different division of the same Illinois appellate court heard ''Yates v. Chicago National League Ball Club'', a suit against the Cubs over a
Leon Durham Leon "Bull" Durham (born July 31, 1957) is an American former first baseman and outfielder in Major League Baseball who played for 10 seasons. Durham was a longtime minor league hitting coach, and most recently served as the assistant hitting coac ...
foul ball that struck the plaintiff in the face at
Wrigley Field Wrigley Field is a Major League Baseball (MLB) stadium on the North Side of Chicago, Illinois. It is the home of the Chicago Cubs, one of the city's two MLB franchises. It first opened in 1914 as Weeghman Park for Charles Weeghman's Chicago Wh ...
in 1983, ending his own baseball career and causing vision problems that persisted over the pendency of the case. A jury had found for him and the Cubs appealed."Yates v. Chicago National League Baseball Club"> The Cubs' appeal was primarily based on evidentiary issues at the trial. Most relevant to the Baseball Rule, the appeals court ruled that Yates did not have to introduce evidence that the amount of seats protected by the backstop was adequate to meet demand, as ''Coronel'' had narrowed a plaintiff's burden of proof to simply whether the screen was adequate protection without regard to the demand for seats behind them, and, contrary to one of the Cubs' other grounds for appeal, the jury could consider that question.''Yates'', 577–79. The appeals court also rejected the Cubs' argument that the ticket waiver created a contractual assumption of risk. Other Illinois case law had held that a contractual assumption of risk required that the plaintiff have assented to the agreement; this could not be so, the trial court had ruled, because "the print was so small that it was not legibly reproduced on the photocopy submitted to the trial court."''Yates'', at 581


New Mexico: ''Crespin'' and ''Edward''

The
New Mexico Court of Appeals The New Mexico Court of Appeals (in case citation, N.M. Ct. App.) is the intermediate-level appellate court for the state of New Mexico. History The court of appeals was created by a constitutional amendment submitted to the electorate in a ...
became the first court to explicitly reject the Baseball Rule in 2009's ''Crespin v Albuquerque Baseball Club''. The Crespins' four-year-old son's skull was fractured by a ball hit into the stands during
batting practice B backdoor breaking ball :A breaking pitch, usually a slider, curveball, or cut fastball that, due to its lateral motion, passes through a small part of the strike zone on the outside edge of the plate after seeming as if it would miss the pla ...
while the family was enjoying a pregame picnic, in an area with tables behind the outfield fence, for local
Little League Little League Baseball and Softball (officially, Little League Baseball Inc) is a 501(c)(3) nonprofit organizationAlbuquerque Isotopes The Albuquerque Isotopes are a Minor League Baseball team of the Pacific Coast League and the Triple-A affiliate of the Colorado Rockies. They play home games at Rio Grande Credit Union Field at Isotopes Park in Albuquerque, New Mexico, at an el ...
. They sued the Isotopes, the city of
Albuquerque Albuquerque ( ; ), ; kee, Arawageeki; tow, Vakêêke; zun, Alo:ke:k'ya; apj, Gołgéeki'yé. abbreviated ABQ, is the most populous city in the U.S. state of New Mexico. Its nicknames, The Duke City and Burque, both reference its founding in ...
as stadium owner, batter Dave Matranga, then with the
New Orleans Zephyrs New is an adjective referring to something recently made, discovered, or created. New or NEW may refer to: Music * New, singer of K-pop group The Boyz Albums and EPs * ''New'' (album), by Paul McCartney, 2013 * ''New'' (EP), by Regurgitator, ...
, and the Zephyrs' parent team, the Houston Astros, for whom Matranga had played in the majors. The trial court granted summary judgement to all defendants. On appeal, the court affirmed it for the Astros and Matranga, since he had hit the ball fairly as baseball players are supposed to do (in a game, the court noted, the hit would have been a
home run In baseball, a home run (abbreviated HR) is scored when the ball is hit in such a way that the batter is able to circle the bases and reach home plate safely in one play without any errors being committed by the defensive team. A home run i ...
) and thus the Astros, for whom Matranga had once played, had trained him properly and neither he nor they could have been held negligent. But it reversed the judgement against the team and city. "This case presents the first opportunity for a New Mexico appellate court to consider whether to carve out an exception to the usual tort doctrines for the sport of baseball." The court declined, finding the rule inconsistent with comparative negligence. "Under our present tort system, we discern no public policy reason to justify bestowing immunity on the business of baseball." It remanded the case to the trial court so the jury could decide, among other issues, whether the Isotopes were negligent in failing to warn the picnickers that batting practice was about to begin.''Crespin'', 834–35 The following year the state's Supreme Court overruled the appeals court, in a decision renamed ''Edward v. City of Albuquerque''. " believe that a limited-duty rule", Chief Justice Edward L. Chávez wrote for a unanimous court, "albeit not the one argued for by defendants, is warranted by sound policy considerations." After a lengthy review of previous case law from in and out of state, he called the rule "symmetrical" in that while spectators had to exercise ordinary care to avoid injury from batted balls, while teams had a duty not to increase the risks. Chávez sought to balance the team's duties with the interest of spectators in catching a foul ball. He did, however, affirm the appeals court's denial of summary judgement, saying the city and team had not sufficiently established the facts to support it.


''Rountree v. Boise Baseball Club''

In 2013's ''Rountree v. Boise Baseball Club'', Idaho's Supreme Court rejected the Baseball Rule. The plaintiff had been hit while eating in Memorial Stadium at a 2008
Boise Hawks The Boise Hawks are an independent baseball team of the Pioneer League, which is not affiliated with Major League Baseball (MLB) but is an MLB Partner League. Home games are played at Memorial Stadium in Garden City, Idaho, a small city surround ...
game. The trial court had held that only the
state legislature A state legislature is a legislative branch or body of a political subdivision in a federal system. Two federations literally use the term "state legislature": * The legislative branches of each of the fifty state governments of the United Sta ...
could adopt it, which Justice
Jim Jones James Warren Jones (May 13, 1931 – November 18, 1978) was an American preacher, political activist and mass murderer. He led the Peoples Temple, a new religious movement, between 1955 and 1978. In what he called "revolutionary suicide", ...
wrote for a unanimous court, was incorrect. But while the court could adopt it, he continued, " find no compelling public policy requiring us to do so." The court, Jones conceded, had earlier adopted the
fireman's rule The fireman's rule (firefighter's rule) is a common law or statute, statutory restriction on tort actions by public safety officials. In general, the fireman's rule bars lawsuits by firefighters, police officers and, in some jurisdictions, all gover ...
, limiting the liability of landowners for injuries suffered by responding emergency personnel on their property. But that recognized "the fundamental link between firefighters confronting danger and sustaining consequent injuries." Jones did not see any similar reason the public had to expose itself to foul ball injuries to watch baseball. The opinion also rejected the defendants claim that implied primary assumption of risk was a valid defense in the case.


''South Shore Baseball LLC v. DeJesus''

The year after ''Rountree'', the
Indiana Supreme Court The Indiana Supreme Court, established by Article 7 of the Indiana Constitution, is the highest judicial authority in the state of Indiana. Located in Indianapolis, Indiana, Indianapolis, the Court's chambers are in the north wing of the Indiana ...
also declined to adopt the Baseball Rule, even as it held for the defendant team on the facts of the case. ''South Shore Baseball LLC v. DeJesus'' had been brought by a woman struck in the face by a pop-up foul on the opening day of the 2009
Gary SouthShore RailCats The Gary SouthShore RailCats are a professional baseball team based in Gary, Indiana, in the United States. The RailCats are members of the American Association of Professional Baseball, an official Partner League of Major League Baseball. The Rai ...
season at
U.S. Steel Yard U.S. Steel Yard is an open-air baseball stadium located in Gary, Indiana next to I-90 in the city's Emerson neighborhood. It is home to the Gary SouthShore RailCats, a professional baseball team and member of the American Association. It seats 6 ...
. She had been sitting just outside the screening, heard the foul and looked up to see it in time for it to strike her in the face, breaking several bones and blinding her in the left eye. At trial, the team's motion for summary judgement was denied, then reversed on appeal. While DeJesus had argued that the netting should have extended further, she had testified that she had been to many RailCats games, that she was aware of the hazards of foul balls and had heard a warning to that effect over the stadium's
public address system A public address system (or PA system) is an electronic system comprising microphones, amplifiers, loudspeakers, and related equipment. It increases the apparent volume (loudness) of a human voice, musical instrument, or other acoustic sound sou ...
. She appealed to the state Supreme Court, which affirmed. "This undisputed evidence shows DeJesus was not relying on the netting to protect her from the danger of foul balls," wrote Justice
Mark Massa Mark S. Massa (born March 6, 1961) is an American judge who has served as an Indiana Supreme Court, Associate Justice of the Indiana Supreme Court since April 2, 2012, when he succeeded Randall T. Shepard. Born in Milwaukee, Wisconsin, Massa mo ...
for a unanimous court.''South Shore Baseball'' at 911 The court had also been asked, in an ''
amicus curiae An ''amicus curiae'' (; ) is an individual or organization who is not a party to a legal case, but who is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. The decision on ...
'' brief filed by the
Indianapolis Indians The Indianapolis Indians are a Minor League Baseball team of the International League (IL) and the Triple-A affiliate of the Pittsburgh Pirates. They are located in Indianapolis, Indiana, and play their home games at Victory Field, which open ...
, the
Pittsburgh Pirates The Pittsburgh Pirates are an American professional baseball team based in Pittsburgh. The Pirates compete in Major League Baseball (MLB) as a member club of the National League (NL) Central division. Founded as part of the American Associati ...
triple-A minor league team in the state, to formally adopt the Baseball Rule, which it said the state had already done 70 years earlier in ''Emhardt''. Massa responded with a baseball metaphor: "Although we appreciate a well-turned
double play In baseball and softball, a double play (denoted as DP in baseball statistics) is the act of making two outs during the same continuous play. Double plays can occur any time there is at least one baserunner and fewer than two outs. In Major Leag ...
, we will take this particular pitch." ''Emhardt''s holding had contained the essence of the rule, he agreed, but it was rooted in the legal doctrines the state had abandoned in favor of comparative negligence. "We do not find it instructive here."''South Shore Baseball'', 907–909 Massa agreed that " seball undoubtedly occupies a special place in American life and culture", quoting praise for the sport from a 1911 decision of the court, but " vertheless, we are not convinced that any sport, even our national pastime, merits its own special rule of liability." If that was a decision the state should make, it was the
state legislature A state legislature is a legislative branch or body of a political subdivision in a federal system. Two federations literally use the term "state legislature": * The legislative branches of each of the fifty state governments of the United Sta ...
's prerogative, he concluded.


Exceptions


Injury to non-spectating bystander

Courts have strictly adhered to the Baseball Rule, but they have almost always limited its applicability to spectators watching the game or walking through viewing areas, holding that only that activity gives rise to the assumed risk of foul ball injury. The first plaintiff to recover after Edling was a young Wisconsin girl who was hit in the face while her mother was adjusting her dress along a highway about from a baseball diamond at a park operated by the local trolley company; the family was not watching the game. "There can be no serious claim that the respondent was guilty of contributory negligence, as she was on the highway and entirely ignorant of her danger", the
Wisconsin Supreme Court The Wisconsin Supreme Court is the highest appellate court in Wisconsin. The Supreme Court has jurisdiction over original actions, appeals from lower courts, and regulation or administration of the practice of law in Wisconsin. Location The Wi ...
held in 1925 as it affirmed a $2,000 ($ in today's dollars) jury verdict in her favor.


Batting practice

Another 1925 case from the
Midwest The Midwestern United States, also referred to as the Midwest or the American Midwest, is one of four Census Bureau Region, census regions of the United States Census Bureau (also known as "Region 2"). It occupies the northern central part of ...
addressed an injury arising from
batting practice B backdoor breaking ball :A breaking pitch, usually a slider, curveball, or cut fastball that, due to its lateral motion, passes through a small part of the strike zone on the outside edge of the plate after seeming as if it would miss the pla ...
, resulting in a change in procedure for that aspect of the pregame. The plaintiff in ''Cincinnati Base Ball Co. v. Eno'' was attending a
Cincinnati Reds The Cincinnati Reds are an American professional baseball team based in Cincinnati. They compete in Major League Baseball (MLB) as a member club of the National League (NL) National League Central, Central division and were a charter member of ...
twi-night doubleheader four years earlier with her father; during batting practice between the games, which at the time consisted of several groups of players scattered around the field, she and her father went closer to the field for a look at the players practicing there, just away,''Baseball Rule'', at 77. a foul broke her jaw. The
Ohio Supreme Court The Ohio Supreme Court, Officially known as The Supreme Court of the State of Ohio is the highest court in the U.S. state of Ohio, with final authority over interpretations of Ohio law and the Ohio Constitution. The court has seven members, a ...
affirmed an appellate ruling that reversed the trial court's
directed verdict In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. In a bench trial, the judge's decision near the end of the trial is simply referred to as a finding. In England and Wales, ...
for the team, distinguishing the case from ''Crane'' and its progeny by noting that multiple balls were in play during batting practice and spectators could not reasonably be expected to keep track of all of them. As a result of the case, the Reds and other professional teams began holding batting practice with only one batter at a time, swinging from home plate.''Injuries'', at 204


Lost bats

The Baseball Rule has not been extended to cover injuries from lost bats that go into the stands. In 1938 a California appeals court considered the case of Martha Ratcliff, who had been walking down the aisle to her protected seat at a
San Diego Padres The San Diego Padres are an American professional baseball team based in San Diego. The Padres compete in Major League Baseball (MLB) as a member club of the National League (NL) West division. Founded in 1969, the club has won two NL penna ...
Pacific Coast League The Pacific Coast League (PCL) is a Minor League Baseball league that operates in the Western United States. Along with the International League, it is one of two leagues playing at the Triple-A (baseball), Triple-A level, which is one grade bel ...
game during batting practice when struck by a player's bat, which had slipped from his grip away. She prevailed at trial and was awarded $2,000 by the jury, a verdict sustained on appeal, since the evidence showed that bats had gone into the stands before and the court held that " was a question for the jury whether such an accident as this could have been reasonably anticipated and we think the evidence is sufficient to sustain their finding upon that question."


Thrown balls


''Maytnier v. Rush''

A ball errantly ''thrown'' into the stands as a consequence of a pitcher's warmup during the game, rather than batted, also was beyond the scope of the rule. In 1957, David Maytnier, 13, went to a Cubs doubleheader at Wrigley Field, where he got a front-row ticket that he had requested be as close to the Cubs' dugout as possible; he wound up being seated about 10 or 15 seats further away from the plate than the dugout. The seat was thus close to the
bullpen In baseball, the bullpen (or simply the pen) is the area where relief pitchers warm up before entering a game. A team's roster of relief pitchers is also metonymically referred to as "the bullpen". These pitchers usually wait in the bullpen if t ...
, where a
wild pitch In baseball, a wild pitch (WP) is charged against a pitcher when his pitch is too high, too short, or too wide of home plate for the catcher to control with ordinary effort, thereby allowing a baserunner, or the batter (on an uncaught third stri ...
by
reliever In baseball and softball, a relief pitcher or reliever is a pitcher who enters the game after the starting pitcher is removed because of fatigue, ineffectiveness, injury, or ejection, or for other strategic reasons, such as inclement weather d ...
Bob Rush struck Maytnier in the face during the sixth inning of the second game. Maytnier's father sued both Rush and the Cubs; testimony at trial revealed that the former, who had been having problems with his pitching that season, had been experimenting with a new pitch which in that particular instance, bullpen catcher
Gordon Massa Gordon Richard Massa (September 2, 1935 – July 16, 2016) was an American professional baseball player who appeared in eight games as a catcher and pinch hitter for the 1957–1958 Chicago Cubs of Major League Baseball. A left-handed batter who t ...
testified, had been above him and to his left, beyond his ability to catch when standing. The jury found for Maytnier against the team but for Rush against him. Both Maytnier and the Cubs appealed. His appeal against the Rush verdict was dismissed as untimely.''Maytnier'', 341–342 The Cubs' appeal made several arguments including all the previous Baseball Rule cases from Illinois and other states. The court distinguished them all from the instant case; instead it was more persuaded by ''Eno'' and ''Ratcliff'': The case had thus been properly submitted to the jury, and the appeals court therefore declined to disturb it.''Maytnier'', at 351 Possibly as a consequence of ''Maytnier'', baseball venues at all levels banned players from playing
pepper Pepper or peppers may refer to: Food and spice * Piperaceae or the pepper family, a large family of flowering plant ** Black pepper * ''Capsicum'' or pepper, a genus of flowering plants in the nightshade family Solanaceae ** Bell pepper ** Chili ...
, a warmup exercise (sometimes played as an informal game in itself) in which a batter bats balls to several fielders nearby, due to the risk of similar injuries to spectators, since it was often played on the side of the field before games. This is often indicated with signs. Teams have also moved bullpens off the field to enclosed areas behind the back fence.Ted Curtis,
The Flood Act's Place in Baseball Legal History
, 9 Marq. Sports L. Rev. 403, 408 (1999)


''Loughran v. The Phillies''

In contrast to ''Maytnier'', injuries resulting from a ball ''deliberately'' thrown into the stands by a player as a souvenir were held beyond recovery under the Baseball Rule in a 2005 Pennsylvania case. Jeremy Loughran sued the team and outfielder
Marlon Byrd Marlon Jerrard Byrd (born August 30, 1977) is an American former professional baseball outfielder, who played in Major League Baseball (MLB) for the Philadelphia Phillies, Washington Nationals, Texas Rangers, Chicago Cubs, Boston Red Sox, New Yo ...
after he was hit in the face and
concussed A concussion, also known as a mild traumatic brain injury (mTBI), is a head injury that temporarily affects brain functioning. Symptoms may include loss of consciousness (LOC); memory loss; headaches; difficulty with thinking, concentration, ...
by a ball thrown into the stands by Byrd after making the last out of an inning during a 2003 game. The trial court granted Byrd and the team summary judgement, and Loughran appealed. Three of the four judges on the
Superior Court In common law systems, a superior court is a court of general jurisdiction over civil and criminal legal cases. A superior court is "superior" in relation to a court with limited jurisdiction (see small claims court), which is restricted to civil ...
panel affirmed the trial court. They rejected Loughran's argument that Byrd's throw was not a customary part of the game and thus outside the scope of the risk he assumed in attending it. In so determining, "we cannot be limited to the rigid standards of the Major League Baseball rule book; we must instead consider the actual everyday goings on that occur both on and off the baseball diamond" the court wrote. " th outfielders and infielders routinely toss caught balls to fans at the end of an inning" which, indeed, had occurred 20 times that night, two of which landed near Loughran, before he was injured.''Loughran'', 875–76 Justice John Bender dissented, arguing that the majority should have distinguished between an accidental throw into the stands and Byrd's "gratuitous" toss, completely unnecessary to the game. "Apparently, in the majority's view, a thrown ball is a thrown ball" he wrote. "I am unwilling to accept the premise that simply because the custom is commonplace, the commonality of the custom provides blanket immunity from the way it is carried out." Players throwing last-out balls into the stands as a gift to fans had a duty to exercise reasonable care in doing so, he reiterated.''Loughran'', 877–82


Spectators away from seating area


''Jones v. Three Rivers Management Corporation''

On July 16, 1970, the day the
Pittsburgh Pirates The Pittsburgh Pirates are an American professional baseball team based in Pittsburgh. The Pirates compete in Major League Baseball (MLB) as a member club of the National League (NL) Central division. Founded as part of the American Associati ...
played their first home game at
Three Rivers Stadium Three Rivers Stadium was a multi-purpose stadium located in Pittsburgh, Pennsylvania, from 1970 to 2000. It was home to the Pittsburgh Pirates of Major League Baseball (MLB) and the Pittsburgh Steelers of the National Football League (NFL). Built ...
, Evelyn Jones was walking one of the stadium's interior
concourse A concourse is a place where pathways or roads meet, such as in a hotel, a convention center, a railway station, an airport terminal, a hall, or other space. The term is not limited to places where there are literally pathways or roadways or t ...
s before the game. There were openings that looked out over the field; during the course of her walk, she looked through some but did not stop to do so for long. Near right field, unaware that batting practice had begun, she turned to go to a concession stand for food, and as she did was struck in the eye by a batted ball. At trial, a jury found for Jones against the Pirates and its subsidiary that managed the stadium, awarding her $125,000. The Superior Court panel that heard the appeal reversed both, but divided on the management company's liability. Jones appealed that decision to the
Supreme Court of Pennsylvania The Supreme Court of Pennsylvania is the highest court in the Commonwealth of Pennsylvania's Unified Judicial System. It also claims to be the oldest appellate court in the United States, a claim that is disputed by the Massachusetts Supreme ...
. "Movies must be seen in a darkened room, roller coasters must accelerate and decelerate rapidly and players will bat balls into the grandstand", Justice Samuel J. Roberts wrote for a unanimous court, referring to other state tort precedents concerning inherent risks at places of amusement as well as the Baseball Rule, which he characterized as "no-duty". "But even in a 'place of amusement' not every risk is reasonably expected." He noted that the openings and archways overlooking the field near where Jones was hit were architectural choices not essential to playing baseball, and thus the jury was properly charged with deciding whether the Pirates were negligent in operating the stadium with them. Their verdict was sustained; the Baseball Rule was held to apply only to those spectators in the seating area.''Jones'', 84–89


''Maisonave v. Newark Bears''

Almost 30 years later, the
New Jersey Supreme Court The Supreme Court of New Jersey is the highest court in the U.S. state of New Jersey. In its current form, the Supreme Court of New Jersey is the final judicial authority on all cases in the state court system, including cases challenging the ...
held similarly in ''Maisonave v. Newark Bears'', where the plaintiff had likewise suffered serious eye injuries after being hit by a foul ball when he turned around after hearing a warning while buying food from a vendor at a cart in an open area of the
Riverfront Stadium Riverfront Stadium, also known as Cinergy Field from 1996 to 2002, was a multi-purpose stadium in Cincinnati, Ohio, United States that was the home of the Cincinnati Reds of Major League Baseball from 1970 through 2002 and the Cincinnati Bengals o ...
concourse. After a trial court granted summary judgement to the team, an appeals court reversed and the Supreme Court sustained. Chief Justice James R. Zazzali's
majority opinion In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision. Not all cases have ...
, one of the earliest to refer to the rule specifically as the "baseball rule", held it imposed a limited duty on teams, since fans "actively engage in the game by trying to catch foul balls", but followed ''Jones'' in holding it applied only to injuries sustained by those spectators in areas of the venue specifically intended for them to view the game from: Two justices wrote separate opinions.
John E. Wallace Jr. John E. Wallace Jr. (born 1942) is a former Associate Justice of the New Jersey Supreme Court. Early life and education Wallace was born on March 13, 1942 in Pitman, New Jersey. He received a B.A. from the University of Delaware in 1964, where he ...
concurred in the result, but said he found the Baseball Rule anachronistic. He called for it to be replaced with the business-invitee class of visitor that had preceded it, noting that even the majority had admitted that the most dangerous seats for foul ball injuries were no longer those behind home plate but along the baselines. Wallace rejected concerns that abandoning it would give rise to a legal regime in which baseball teams and park owners would be forced to protect ''every'' seat from foul balls. "Instead," he wrote, "the application of traditional tort principles, such as comparative negligence, will adequately even out the playing field for both sides."''Maisonave'', 710–13 Justice
Roberto A. Rivera-Soto Roberto A. Rivera-Soto (born November 10, 1953) is a former Associate judge, Justice on the New Jersey Supreme Court, Supreme Court of the State of New Jersey, U.S.A. His seven-year term expired on August 31, 2011, and he was not nominated to an ...
, joined by
Jaynee LaVecchia Jaynee LaVecchia (born October 9, 1954) is a former associate justice of the Supreme Court of New Jersey. She was nominated by Governor Christine Todd Whitman to serve on the court on January 6, 2000 and was confirmed by the New Jersey Senate on ...
, took the opposite approach, concurring in the reaffirmation of the Baseball Rule but dissenting from its limitation to the seating area. While he agreed with Wallace that it was better that "one and only one standard of care should apply in respect of the peril of objects leaving the playing field", Rivera-Soto would have had the court adopt the broader Baseball Rule for spectators regardless of where they were in the stadium, approvingly quoting the trial court's holding that "once a spectator, always a spectator — at least until the last out is registered." With the "hybrid standard of care", the decision adopted, ballparks might eventually be forced to completely seal off play, he feared.''Maisonave'', 713–18 " less relief is provided through the Legislature," Rivera-Soto warned, the state's minor league stadiums would "serve as little more than a hothouse for budding tort litigation" under ''Maisonave''. The following year, the
state legislature A state legislature is a legislative branch or body of a political subdivision in a federal system. Two federations literally use the term "state legislature": * The legislative branches of each of the fifty state governments of the United Sta ...
responded to the decision by codifying the Baseball Rule into statute, just as its Illinois counterpart had done in response to ''Coronel'' and ''Yates''.''Baseball Rule'',84-85


''Turner v. Mandalay Sports Entertainment LLC''

In 2008, a divided
Nevada Supreme Court The Supreme Court of Nevada is the highest state court of the U.S. state of Nevada, and the head of the Nevada Judiciary. The main constitutional function of the Supreme Court is to review appeals made directly from the decisions of the distric ...
came to the opposite conclusion in considering the case of a woman injured by a foul ball while sitting at a table on the concourse drinking beer at
Cashman Field Cashman Field is a soccer-specific stadium in Downtown Las Vegas, Nevada. It is primarily used for soccer as the home field of Las Vegas Lights FC of the USL Championship. Originally built as a baseball stadium, it was the home of the Triple-A ...
during a Las Vegas 51 game. Justice
Ron Parraguirre Ronald David "Ron" Parraguirre (born July 8, 1959) is a justice of the Nevada Supreme Court. He was appointed in 2004, and his term ends in 2023. He is also a former president of the Nevada District Judges Association. He received his Juris Docto ...
wrote for a four-justice majority that, since the team had both verbal and signed warnings and the plaintiff chose to consume her beer in an unscreened area, one where she had not in his opinion demonstrated a significant risk of injury, it had not breached what it held to be its limited duty to her. In his dissent, Chief Justice
Mark Gibbons Mark Gibbons (born December 12, 1950) is a former justice of the Supreme Court of Nevada. He was elected to the Nevada Supreme Court in 2002. Gibbons attended the University of California at Irvine and earned his bachelor's degree in 1972. He a ...
, joined by Michael Cherry and Michael L. Douglas, agreed with the ''Maisonave'' court, which he quoted, that the Baseball Rule was properly limited to fans in areas meant for watching the game.


Mascot antics


''Lowe v. California League of Professional Baseball''

In the late 20th century many professional sports teams began creating mascots for their branding, depicting them in logos and hiring people to dress up as the characters and entertain fans in the stands during lulls in play. In 1994 John Lowe was attending a home game of the
Rancho Cucamonga Quakes The Rancho Cucamonga Quakes are a Minor League Baseball team of the California League and the Single-A affiliate of the Los Angeles Dodgers. They are located in Rancho Cucamonga, California, and play their home games at LoanMart Field. The franc ...
, the Los Angeles Dodgers Class A farm team, when the team's mascot, "Tremor", a seven-foot-tall () dinosaur played by a costumed team employee, repeatedly bumped his head with his tail. Lowe turned to look back eventually, and as he did was struck in the face by a foul ball, breaking several facial bones. Lowe's suit named the
California League The California League is a Minor League Baseball league that operates in California. Having been classified at various levels throughout its existence, it operated at Class A-Advanced from 1990 until its demotion to Single-A following Major Leag ...
and the team as defendants, who were granted summary judgement by the trial court. The appeals court found much to criticize in that action, primarily that the defendants' pleadings "offered nothing in the way of either relevant or competent evidence" that the facts were beyond dispute; they also referred to mascots as an " intrical part of the game". On that point the court noted that the team had played games the previous season without Tremor. "As a matter of law, we hold that ... the game can be played in the absence of mascots antics" the court concluded. Those antics had increased Lowe's risk of injury, and therefore under California law the plaintiff had a right to a jury trial. It reversed the trial court and remanded the case.Lowe, 124–25


''Harting v. Dayton Dragons Professional Baseball Club''

An Ohio appeals court took a contrasting approach to the role of the mascot in the modern live baseball experience when it decided ''Harting v. Dayton Dragons Professional Baseball Club'' in 2005. The plaintiff had been watching a
Dayton Dragons The Dayton Dragons are a Minor League Baseball team of the Midwest League and the High-A affiliate of the Cincinnati Reds. They are located in Dayton, Ohio, and play their home games at Day Air Ballpark, formerly known as Fifth Third Field. In 2 ...
minor league game in 2005 at which the
San Diego Chicken The San Diego Chicken, also known as The Famous Chicken, the KGB Chicken or just The Chicken, is a sports mascot played by Ted Giannoulas. History Origin The character originated in 1974 in an animated TV commercial for KGB-FM Radio in San Diego. ...
, a pioneering baseball mascot, was present. Harting was struck by a foul and knocked unconscious while he was performing in front of her; she sued both him and the team. The trial court granted summary judgement to both defendants. Harting argued on appeal that their primary assumption of risk defense did not apply to her since she had been distracted by the Chicken. "This argument ignores the fact that team mascots and their antics are common phenomena and the mascots are normally present during the entire course of the game", the court responded. "The fact that Harting was allegedly distracted by the Chicken ... when she was struck by the foul ball did not negate her duty to pay attention to the action taking place on the field." It further noted that she had not testified that the Chicken blocked her view of either the field or the foul ball.''Harting, 325–26''


''Coomer v. Kansas City Royals''

In his ''Loughran'' dissent, Pennsylvania appellate justice John Bender had speculated about a hypothetical future case in which, under the majority's logic, "one of those executing the hotdog launch imprudently aimed at spectators seated a couple of rows into the stands ... would be immune if a spectator lost an eye after getting hit nearly point blank by a foil wrapped hotdog."''Loughran'', at 882 In 2009, that occurred, when John Coomer suffered a
detached retina Retinal detachment is a disorder of the eye in which the retina peels away from its underlying layer of support tissue. Initial detachment may be localized, but without rapid treatment the entire retina may detach, leading to vision loss and blin ...
and
cataract A cataract is a cloudy area in the lens of the eye that leads to a decrease in vision. Cataracts often develop slowly and can affect one or both eyes. Symptoms may include faded colors, blurry or double vision, halos around light, trouble w ...
s requiring two surgeries after
Kansas City Royals The Kansas City Royals are an American professional baseball team based in Kansas City, Missouri. The Royals compete in Major League Baseball (MLB) as a member club of the American League (AL) Central division. The team was founded as an expans ...
' mascot
Sluggerrr This is a list of current and former Major League Baseball mascots, sorted alphabetically. The tradition in the Major League Baseball mascot began with Mr. Met, introduced for the New York Mets when Shea Stadium opened in 1964. Although some mas ...
hit him in the eye with a ''thrown'' hot dog. At his suit, a jury found for the team and he appealed. On appeal the
Missouri Supreme Court The Supreme Court of Missouri is the highest court in the state of Missouri. It was established in 1820 and is located at 207 West High Street in Jefferson City, Missouri. Missouri voters have approved changes in the state's constitution to give ...
reversed. Judge Paul C. Wilson wrote for a unanimous court that, contrary to the jury's findings but per ''Lowe'', getting injured by a hot dog thrown by the team's mascot was ''not'' an inherent risk of watching baseball and a jury instruction to that effect was prejudicial to Coomer's case, since it was not a factual question for them to decide:''Coomer'', 199–201 On retrial the jury found neither Coomer nor the team to have been at fault.


Codification

Four states—
Arizona Arizona ( ; nv, Hoozdo Hahoodzo ; ood, Alĭ ṣonak ) is a state in the Southwestern United States. It is the 6th largest and the 14th most populous of the 50 states. Its capital and largest city is Phoenix. Arizona is part of the Fou ...
,
Colorado Colorado (, other variants) is a state in the Mountain West subregion of the Western United States. It encompasses most of the Southern Rocky Mountains, as well as the northeastern portion of the Colorado Plateau and the western edge of t ...
,
Illinois Illinois ( ) is a U.S. state, state in the Midwestern United States, Midwestern United States. Its largest metropolitan areas include the Chicago metropolitan area, and the Metro East section, of Greater St. Louis. Other smaller metropolita ...
and
New Jersey New Jersey is a state in the Mid-Atlantic and Northeastern regions of the United States. It is bordered on the north and east by the state of New York; on the east, southeast, and south by the Atlantic Ocean; on the west by the Delaware ...
—have formally codified the Baseball Rule into law. In the latter two, this was done after state courts had limited the rule's applicability in different ways. The statutes the states adopted vary in the degree to which they have adopted the traditional components of the rule. In Arizona, teams are immune from liability for injuries from balls, bats or other equipment as long as they have offered enough protected seats to reasonably meet demand. New Jersey's law specifies that the team must protect the seats behind home plate. Illinois gives teams even more protection, requiring only that they keep the protective equipment in good order and exempting only a player's willful or wanton conduct. Colorado's statute, on the other hand, is the least specific, requiring only that teams "make a reasonable and prudent effort to design, alter, and maintain the premises of the stadium in reasonably safe condition relative to the nature of the game of baseball"


''Jasper v. Chicago National League Ball Club''

After the passage of the Illinois statute, James Jasper brought suit against the Cubs over a foul ball injury he claimed could have been prevented by a screen that had been removed in 1992 when the team installed skyboxes on the upper deck of Wrigley Field behind home plate. He asked the court to also declare the statute violated both the
Equal Protection Clause The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
of the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
and a provision of the state constitution that forbids the legislature from conferring a special benefit or exclusive privilege without a good public policy reason. Other sports, Jasper noted, did not get the same degree of immunity that the Baseball Rule, now codified into law, offered teams in that sport; he also argued it benefited only for-profit teams since other statutes limited the liability of non-profit park owners. The trial court granted the Cubs' motion for dismissal of the constitutional claims. On Jasper's appeal, the court found the statute constitutional. " e sport of baseball does have unique characteristics that would reasonably prompt a legislature to enact limited liability legislation", it wrote, citing a similar case where the state's Supreme Court had upheld a law limiting the liability of landholders for injuries to
snowmobile A snowmobile, also known as a Ski-Doo, snowmachine, sled, motor sled, motor sledge, skimobile, or snow scooter, is a motorized vehicle designed for winter travel and recreation on snow. It is designed to be operated on snow and ice and does not ...
rs on their property on the grounds that that recreational activity, too, had inherent dangers that property owners could not reasonably be expected to completely control. The court also rejected Jasper's claim that the statute's exclusion of golf courses could not be considered as he had not introduced any evidence suggesting a similar risk of injury from wayward golf balls; lastly it cited earlier cases in support of its dismissal of Jasper's contention that since other laws protected non-profit facility operators the legislature had only meant to protect the Cubs and White Sox:


Applicability to other sports

Baseball is not the only sport that raises the potential for injuries to spectators struck by objects leaving the playing area. Litigation over injuries to
ice hockey Ice hockey (or simply hockey) is a team sport played on ice skates, usually on an ice skating rink with lines and markings specific to the sport. It belongs to a family of sports called hockey. In ice hockey, two opposing teams use ice hock ...
fans struck by
hockey puck A hockey puck is either an open or closed disk used in a variety of sports and games. There are designs made for use on an ice surface, such as in ice hockey, and others for the different variants of floor hockey which includes the wheeled skate ...
s at games in the U.S. dates to the 1930s, and there have also been suits from spectators injured by
golf ball A golf ball is a special ball designed to be used in the game of golf. Under the rules of golf, a golf ball has a mass no more than , has a diameter not less than , and performs within specified velocity, distance, and symmetry limits. Like g ...
s. Those actions have been guided by the Baseball Rule to some degree.''Price'', 11–13


Ice hockey

Like baseball, hockey is played with a hard object that can leave the playing area and go into the stands at high speeds. As a result of this, rinks today have protective
plexiglass Poly(methyl methacrylate) (PMMA) belongs to a group of materials called engineering plastics. It is a transparent thermoplastic. PMMA is also known as acrylic, acrylic glass, as well as by the trade names and brands Crylux, Plexiglas, Acrylite, ...
shielding atop the boards. And like baseball, that shielding is higher in the areas where pucks are most likely to go into the stands: behind the goals. But unlike baseball, the gameplay is more flowing and continuous and requires fans to keep their eyes on a puck moving up and down the rink which may be difficult to see, much less anticipate.''Price'' at 16 Hockey was first played in the United States in the 1890s; professional leagues had formed within two decades and the
Boston Bruins The Boston Bruins are a professional ice hockey team based in Boston. The Bruins compete in the National Hockey League (NHL) as a member of the Atlantic Division in the Eastern Conference. The team has been in existence since 1924, making t ...
, the first American team in the
National Hockey League The National Hockey League (NHL; french: Ligue nationale de hockey—LNH, ) is a professional ice hockey league in North America comprising 32 teams—25 in the United States and 7 in Canada. It is considered to be the top ranked professional ...
, began playing in 1924; on lower levels the sport was primarily played in
Northeastern The points of the compass are a set of horizontal, radially arrayed compass directions (or azimuths) used in navigation and cartography. A compass rose is primarily composed of four cardinal directions—north, east, south, and west—each se ...
and
Midwestern The Midwestern United States, also referred to as the Midwest or the American Midwest, is one of four census regions of the United States Census Bureau (also known as "Region 2"). It occupies the northern central part of the United States. I ...
states with cold winters. Lawsuits over injuries from pucks leaving the rink were first reported in the mid-1930s. Since hockey was less established in the United States than baseball, courts of that era were willing as they had not been in the latter instance to consider a spectator's degree of knowledge of the sport, or lack thereof, as a factor. This yielded different holdings in different states. In the first two cases of hockey puck injuries considered by New York courts in 1935, the Baseball Rule cases in existence at the time were cited as precedent to hold that hockey teams or rink operators had no duty to screen all the seats, just enough for those who wanted them, and that " is common knowledge that the puck may leave the ice when the players are shooting for a goal." However, the Supreme Court of neighboring Massachusetts upheld a verdict the following year for a woman struck by a puck at
Boston Garden The Boston Garden was an arena in Boston, Massachusetts. Designed by boxing promoter Tex Rickard, who also built the third iteration of New York's Madison Square Garden, it opened on November 17, 1928, as "Boston Madison Square Garden" (late ...
, since it was the first hockey game she had attended and the usher who escorted her to her seat at center ice had not warned her that even with three vertical feet (1 m) of glass between her and the rink pucks could still come into the stands. Four years later the same court declined to disturb a jury's verdict in favor of a man who was injured by a puck as he was walking from his seat to use the bathroom. The defendant had argued for
contributory negligence In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
, but, the court said, the degree to which the accident could have been anticipated was a factual finding properly submitted to the jury. Citing the relative novelty of the sport, which had only been played in California for 12 years at that time, a 1939 appeals court in that state declined to apply the Baseball Rule to hockey in ''Thurman v. Ice Palace''. The plaintiff had attended an intramural
University of Southern California The University of Southern California (USC, SC, or Southern Cal) is a Private university, private research university in Los Angeles, California, United States. Founded in 1880 by Robert M. Widney, it is the oldest private research university in C ...
hockey game at the defendant arena, where wire screens had been installed at the ends but not along the sides, where Thurman was sitting when a puck hit her in the mouth. Through her father, she sued the arena, the student organization that sponsored the game and all its members individually. The trial ended in a
directed verdict In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. In a bench trial, the judge's decision near the end of the trial is simply referred to as a finding. In England and Wales, ...
for all the defendants, and she appealed. The appeals court affirmed the individual defendants' motions for dismissal, but reversed the directed verdict for the entities. Rejecting both the New York courts' decisions from four years earlier, as well as the defendants' reliance on ''Quinn'', the court distinguished hockey from baseball by noting that in the former sport, the puck is "ordinarily batted along the ice", so spectators unfamiliar with the game, like Thurman, would not expect it to become airborne. Therefore: A Pennsylvania court echoed ''Thurman''s reasoning in letting a verdict in favor of another woman who was injured at her first hockey game stand. "The argument is made that this case is analogous to a spectator at a baseball game", wrote a
Court of Common Pleas A court of common pleas is a common kind of court structure found in various common law jurisdictions. The form originated with the Court of Common Pleas at Westminster, which was created to permit individuals to press civil grievances against one ...
judge in 1952's ''Schwilm v. Pennsylvania Sports'', alluding to many of the other cases without citing any. Had the plaintiff been sitting on the side of the rink the court would have applied the same principle as the Baseball Rule and granted the defense request for
judgment notwithstanding verdict Judgment notwithstanding the verdict, also called judgment ''non obstante veredicto'', or JNOV, is a type of judgment as a matter of law that is sometimes rendered at the conclusion of a jury trial. In U.S. federal civil court cases, the term has b ...
, but since she was sitting at the end, where the team had raised the stands at
Pittsburgh Pittsburgh ( ) is a city in the Commonwealth (U.S. state), Commonwealth of Pennsylvania, United States, and the county seat of Allegheny County, Pennsylvania, Allegheny County. It is the most populous city in both Allegheny County and Wester ...
's
Duquesne Gardens The Duquesne Gardens (officially Duquesne Garden until 1940 and The Gardens afterward) was the main sports arena located in Pittsburgh, Pennsylvania, during the first half of the 20th century. Built in 1890, the building originally served as a tr ...
to a higher level without similarly making the screens higher, and had no understanding that pucks can go into the stands before one hit her in the head, the jury had properly found that the team had been negligent in its duties to spectators. Prior to that case the consensus had been changing. Five years before ''Schwilm'', in ''Modec v. City of Eveleth'', the
Minnesota Supreme Court The Minnesota Supreme Court is the Supreme court, highest court in the U.S. state of Minnesota. The court hears cases in the Supreme Court chamber in the Minnesota State Capitol or in the nearby Minnesota Judicial Center. History The court wa ...
upheld a trial court's decision to set aside a $2,500 verdict won by a plaintiff from the city after he was injured at a municipally owned rink leased to a private operator. On appeal, the plaintiff had cited the cases from Massachusetts and other states where juries had been allowed to consider whether a plaintiff unfamiliar with hockey had been properly advised of the dangers. But the court distinguished those states from Minnesota, where the sport had been widely popular for a long time: "Hockey is played to such an extent in this region and its risks are so well known to the general public that as to the question before us there is no difference in fact between the two games so far as liability for flying baseballs and pucks is involved." Per its holdings in ''Wells'' and ''Brisson'', it affirmed the trial court. An Illinois court still distinguished the two sports in the 1981 case of ''Riley v. Chicago Cougars Hockey Club''. The plaintiff had been sitting in the front row of the upper deck at a 1974 game of the
World Hockey Association The World Hockey Association (french: Association mondiale de hockey) was a professional ice hockey major league that operated in North America from 1972 to 1979. It was the first major league to compete with the National Hockey League (NHL) ...
(WHA)
Cougars The cougar (''Puma concolor'') is a large cat native to the Americas. Its range spans from the Canadian Yukon to the southern Andes in South America and is the most widespread of any large wild terrestrial mammal in the Western Hemisphere. I ...
when a
slap shot ''Slap Shot'' is a 1977 American sports film directed by George Roy Hill, written by Nancy Dowd and starring Paul Newman and Michael Ontkean. It depicts a minor league ice hockey team that resorts to violent play to gain popularity in a declin ...
was deflected upwards and struck him, knocking him unconscious and causing a
Jacksonian seizure Focal seizures (also called partial seizures and localized seizures) are seizures which affect initially only one hemisphere of the brain. The brain is divided into two hemispheres, each consisting of four lobes – the frontal, temporal, parie ...
that left a permanent
brain lesion Neurotrauma, brain damage or brain injury (BI) is the destruction or degeneration of brain cells. Brain injuries occur due to a wide range of internal and external factors. In general, brain damage refers to significant, undiscriminating t ...
resulting in occasional
epileptic seizure An epileptic seizure, informally known as a seizure, is a period of symptoms due to abnormally excessive or synchronous neuronal activity in the brain. Outward effects vary from uncontrolled shaking movements involving much of the body with los ...
s. He sued both the league and the team, winning a $90,000 verdict from the jury. It was affirmed on appeal; the defense, citing ''Maytnier'', had asked the court to apply the Baseball Rule to hockey but it declined: "We do not believe that the general nonliability rule that is usually applied in baseball cases is necessarily applicable in hockey cases, because there are fundamental differences in the way baseball and hockey are played and the dangers incident to the games." In the later years of the 20th century, NHL attendance and interest grew as more games were broadcast and the league expanded. A half-century after the Minnesota court's decision in the Eveleth case, an appeals court in neighboring
Wisconsin Wisconsin () is a state in the upper Midwestern United States. Wisconsin is the 25th-largest state by total area and the 20th-most populous. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake M ...
followed the trial court in extending the Baseball Rule (in the process making one of the earliest judicial references to it as such) to hockey in affirming a grant of summary judgement in favor of the
Milwaukee Admirals The Milwaukee Admirals are a professional ice hockey team in the American Hockey League (AHL). They play in Milwaukee, Wisconsin, United States, at the University of Wisconsin–Milwaukee Panther Arena. They are affiliated with the NHL's Nashvil ...
, saying the plaintiff's admitted knowledge of hockey made her contributorily negligent enough to bar recovery even under comparative negligence. Courts in Pennsylvania and California made similar holdings. In the latter, the court noted, in the half-century since ''Thurman'', "professional ice hockey has grown in popularity both in California and nationally. In the present case, it is undisputed that ice hockey spectators face a known risk of being hit by a flying puck." The first years of the 21st century saw the first (and , only) fatal hockey puck injury at an NHL game.
Brittanie Cecil Brittanie Nichole Cecil (March 20, 1988 – March 18, 2002) was a hockey fan who died from injuries suffered when a puck was deflected into the stands and struck her in the left temple at Nationwide Arena in Columbus, Ohio, on March 16, 2002. I ...
, 13, was watching a
Columbus Blue Jackets The Columbus Blue Jackets (often simply referred to as the Jackets) are a professional ice hockey team based in Columbus, Ohio. They compete in the National Hockey League (NHL) as a member of the Metropolitan Division in the Eastern Conference, ...
game at
Nationwide Arena Nationwide Arena is a multi-purpose arena in Columbus, Ohio, United States. Since completion in 2000, the arena has served as the home of the Columbus Blue Jackets of the National Hockey League (NHL). It is one of two facilities in Columbus, alon ...
on March 16, 2002, from behind the goal, when she was struck in the
temple A temple (from the Latin ) is a building reserved for spiritual rituals and activities such as prayer and sacrifice. Religions which erect temples include Christianity (whose temples are typically called churches), Hinduism (whose temples ...
by a deflected slap shot. Initially she appeared have suffered only a cut, but walked to a first-aid station and was taken from there to the hospital, where after first improving her condition deteriorated due to a torn
vertebral artery The vertebral arteries are major arteries An artery (plural arteries) () is a blood vessel in humans and most animals that takes blood away from the heart to one or more parts of the body (tissues, lungs, brain etc.). Most arteries carry o ...
that had not been discovered, leading to her death two days after the injury. Her parents sued the Blue Jackets and other parties; they were eventually able to settle out of court for $1.2 million. League commissioner
Gary Bettman Gary Bruce Bettman (born June 2, 1952) is an American sports executive who serves as the commissioner of the National Hockey League (NHL), a post he has held since February 1, 1993. Previously, Bettman was a senior vice president and general cou ...
ordered all NHL teams to put higher netting behind their arenas' goals.


Golf

Cases involving injury from errant golf balls, which are smaller than baseballs or hockey pucks but are likewise very hard and travel at high speeds, account for half of all reported golf-related tort actions. Most, however, are between golfers themselves,''Price'', at 23 among whom different standards of care apply, or to bystanders off the course.John J. Kircher, "Golf and Torts: An Interesting Twosome", 12 Marq. Sports L. Rev. 347, 348–359 In the 1970s and '80s, several cases involving injuries to spectators who paid to attend golf tournaments or other events reached appeals courts. One commentator suggests cases of this type, analogous to baseball, are much rarer in golf since professional players of that sport "tend to be able to do what the average Joe cannot—consistently hit golf shots." Some of the situations that gave rise to the injuries argued similar reasons to Baseball Rule cases as to why golf courses or sponsoring organizations should be held liable. While waiting in line at a concession stand between fairways during the 1973
Western Open The Western Open was a professional golf tournament in the United States, for most of its history an event on the PGA Tour. The tournament's founding in 1899 actually pre-dated the start of the Tour, which is generally dated from 1916, the ye ...
, played at the Chicago-area
Midlothian Country Club Midlothian Country Club is a historic golf course in Midlothian, Illinois. It is located southwest of Chicago and built on of land. It was designed by Herbert J. Tweedie and opened in 1898. In 2003 the course was updated by the Ken Killian, Ric ...
, Alice Duffy was struck in the right eye, blinding her. Her suit alleged that the country club had failed to exclude spectators from the concession stand area, which she claimed had a higher risk of injury that the club was aware of. The trial court granted summary judgement to the defendants; Duffy appealed, arguing a triable issue of fact existed. The appeals court agreed with her and reversed. Among the cases it relied on was ''Maytnier'', which it held to similarly deny the contractual assumption of risk defense and require that the defense argue more than just the plaintiff's awareness of a defect but the plaintiff's specific knowledge of that defect.''Duffy'', 199–200. On retrial the jury found for Duffy and awarded her almost $450,000, a verdict affirmed after the club's appeal.


''Grisim v. Tapemark Charity Pro-Am Golf Tournament''

''Grisim v. Tapemark Charity Pro-Am Golf Tournament'', a 1986 Minnesota case, most directly reaches the underlying issue of the Baseball Rule: the availability of protected seating. The plaintiff had been attending the defendant tournament, where she was watching a golfer complete the 18th hole; since the bleachers next to the
green Green is the color between cyan and yellow on the visible spectrum. It is evoked by light which has a dominant wavelength of roughly 495570 Nanometre, nm. In subtractive color systems, used in painting and color printing, it is created by ...
were mostly full she decided to watch from under a nearby tree, where other spectators had already chosen to sit. Her left eye had to be surgically removed after being struck. The trial court granted summary judgement to the defendant tournament and country club, holding that primary
assumption of risk Assumption of risk is a defense, specifically an affirmative defense, in the law of torts, which bars or reduces a plaintiff's right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and kno ...
barred the claim. Grisim appealed and the court agreed with her that that was
reversible error In United States law, a reversible error is an error of sufficient gravity to warrant reversal of a judgment on appeal. It is an error by the trier of law (judge), or the trier of fact (the jury, or the judge if it is a bench trial), or malfeasa ...
. Citing ''Wells'', it said there was a triable issue of fact for the jury as to whether the club had provided enough of the protected seating behind the green.


Outside the U.S.


Canada

Liability for injuries to spectators from projectiles leaving the playing area in Canada has long been controlled by a case arising from a hockey puck injury. In 1934's ''Elliott v. Amphitheatre Ltd.'', the
Court of King's Bench of Manitoba The Court of King's Bench of Manitoba (french: Cour du Banc du Roi du Manitoba)—or the Court of Queen’s Bench of Manitoba, depending on the monarch—is the superior court of the Canadian province of Manitoba. The court is divided into tw ...
, after reviewing many of the precedent American baseball cases, denied recovery on the grounds of assumption of risk: "The proprietor is held not to be an insurer and spectators assume the risk peculiar to that form of amusement." It was also one of the authorities cited by the
Minnesota Supreme Court The Minnesota Supreme Court is the Supreme court, highest court in the U.S. state of Minnesota. The court hears cases in the Supreme Court chamber in the Minnesota State Capitol or in the nearby Minnesota Judicial Center. History The court wa ...
in ''Modec''; but a decade earlier the
Rhode Island Supreme Court The Rhode Island Supreme Court is the court of last resort in the U.S. State of Rhode Island. The Court consists of a Chief Justice and four Associate Justices, all selected by the Governor of Rhode Island from candidates vetted by the Judicial No ...
, asked to consider ''Elliott'' as precedent by a defendant hockey rink, distinguished it from the one before it, since Elliott had testified to having watched many hockey games whereas the plaintiff in the case before it was attending her first hockey game and the Manitoba court had pointed to Elliott's familiarity as a reason for its decision.


Japan

In all home stadiums of
Nippon Professional Baseball or NPB is the highest level of baseball in Japan. Locally, it is often called , meaning ''Professional Baseball''. Outside Japan, it is often just referred to as "Japanese baseball". The roots of the league can be traced back to the formation ...
teams, netting protecting the closest seats to the field extends all the way to the
foul pole A baseball field, also called a ball field or baseball diamond, is the field upon which the game of baseball is played. The term can also be used as a metonym for a baseball park. The term sandlot is sometimes used, although this usually refers ...
s. When a foul ball gets over it, ushers point to it with a loud whistling device to alert fans, and immediately check on anyone who appears to have made contact with the ball. Signs at the entrances to sections remind fans of the danger, and animated video clips warning fans to watch for fouls are regularly played on the scoreboard; tickets also have waivers printed on the back as they do in the U.S. The
Tokyo Dome is an indoor stadium in Bunkyo, Tokyo, Japan. It was designed as a baseball stadium following its predecessor, Korakuen Stadium. Construction on the stadium began on May 16, 1985, and it opened on March 17, 1988. It was built on the site of th ...
, home of the popular
Yomiuri Giants The are a Japanese professional baseball team competing in Nippon Professional Baseball's Central League. Based in Bunkyo, Tokyo, they are one of two professional baseball teams based in Tokyo, the other being the Tokyo Yakult Swallows. They ...
, includes one section without netting. Spectators pay extra for these seats, known as "excitement" seats. A glove and helmet is provided with each one; however many of those who sit in those seats do not use them. Despite these protections, foul balls do go into the stands and injure fans, who sometimes sue. In 2015, a woman blinded in one eye by a foul ball at a
Nippon Ham Fighters The are a Japanese professional baseball team based in Kitahiroshima, Hokkaidō. They compete in the Pacific League of Nippon Professional Baseball, playing the majority of their home games at ES CON Field Hokkaido. The Fighters also host a ...
game in the
Sapporo Dome is a stadium located in Sapporo, Hokkaido, Japan, and is primarily used for baseball and association football. It is the home field of the association football club Hokkaido Consadole Sapporo, and was also home to the baseball team Hokkaido Nipp ...
won a (just under US$380,000) verdict against the team. The Fighters responded by adding a warning horn to the ushers' whistles.


Criticism

In the late 2010s, two widely-covered incidents brought the Baseball Rule into focus and led to calls for it to be abolished or greatly modified. Late in the New York Yankees 2017 season, a one-year-old girl attending a game at
Yankee Stadium Yankee Stadium is a baseball stadium located in the Bronx, New York City. It is the home field of the New York Yankees of Major League Baseball, and New York City FC of Major League Soccer. Opened in April 2009, the stadium replaced the origi ...
with her parents and grandparents was struck by a foul, suffering multiple facial fractures that led to a five-day hospital stay. The Yankees announced afterwards that they would join other MLB teams in extending their protective netting to the far end of the dugout from the near end, where it had been up to that point. The next season every team would have expanded screening, but that did not prevent the second foul-ball injury spectator death in MLB history, also at
Dodger Stadium Dodger Stadium is a baseball stadium in the Elysian Park neighborhood of Los Angeles, California. It is the home stadium of Major League Baseball's Los Angeles Dodgers. Opened in 1962, it was constructed in less than three years at a cost of ( ...
. Near the end of a Dodgers-
San Diego Padres The San Diego Padres are an American professional baseball team based in San Diego. The Padres compete in Major League Baseball (MLB) as a member club of the National League (NL) West division. Founded in 1969, the club has won two NL penna ...
game, a foul ball went over the top of the fencing and struck Linda Goldbloom, 79, seated just below the
press box The press box is a special section of a sports stadium or arena that is set up for the media to report about a given event. It is typically located in the section of the stadium holding the luxury box and can be either enclosed or open to the e ...
, in the head. She died in a hospital four days later.


Outdatedness

In a number of the Baseball Rule cases, particularly the more recent ones, judges, first in dissents such as ''Akins'' and ''Rudnick'', and later in the ''Crespin'' and ''Rountree'' majorities, rejected the Baseball Rule as an artifact of the tort-law regime that prevailed before
comparative negligence Comparative negligence, called non-absolute contributory negligence outside the United States, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which t ...
, when
assumption of risk Assumption of risk is a defense, specifically an affirmative defense, in the law of torts, which bars or reduces a plaintiff's right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and kno ...
and
contributory negligence In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
were absolute bars to a plaintiff's recovery, and a reminder of why that transition was made in the first place. But some also recognized that baseball, as well, had changed considerably since then and there was no reason for the law to sentimentalize the sport. Bob Gorman, coauthor of ''Death at the Ballpark'', notes on his blog that ''Crane'' was decided during an era of baseball now known as the
dead ball era In baseball, the dead-ball era was the period from around 1900 to the emergence of Babe Ruth as a power hitter in 1919, when he hit a then-major league record 29 home runs; only three players since 1890 had even hit 20. This era was characterized ...
, when games were generally low-scoring and teams relied generally on the small ball strategy of getting
singles Singles are people not in a committed relationship. Singles may also refer to: Film and television * ''Singles'' (miniseries), a 1984 Australian television series * ''Singles'' (1992 film), written and directed by Cameron Crowe * ''Singles'' ...
to advance their runners along the bases and get them in scoring positions.
Home run In baseball, a home run (abbreviated HR) is scored when the ball is hit in such a way that the batter is able to circle the bases and reach home plate safely in one play without any errors being committed by the defensive team. A home run i ...
s were rare and so were foul balls hit into the stands as batters did not regularly swing for the fences. The same ball could be used for the entire game, and often was. In
1918 This year is noted for the end of the First World War, on the eleventh hour of the eleventh day of the eleventh month, as well as for the Spanish flu pandemic that killed 50–100 million people worldwide. Events Below, the events ...
, a newer, harder ball was introduced, and batters began hitting home runs more frequently. The
general admission In live entertainment, there are several possible schemes for the seating assignment of spectators—including completely unassigned seating. There are several schemes which are most commonly used, though there are no hard and fast rules and alter ...
policy under which Crane bought his ticket has also long vanished, replaced by reserved seating, often for an entire season, in which case a spectator could not move to a protected section even when those seats are empty. And the price of protected seating itself has risen far faster than
inflation In economics, inflation is an increase in the general price level of goods and services in an economy. When the general price level rises, each unit of currency buys fewer goods and services; consequently, inflation corresponds to a reductio ...
: single-game tickets for seats behind home plate and the backstop today cost in the $150–300 range, more than 10 times what Crane could have paid for a protected seat in 1911.''Baseball Rule'', 95–96


Changes in gameplay and presentation

In a 2018 '' William and Mary Law Review'' article calling on courts to modify or even abolish the Baseball Rule, authors Nathaniel Grow and Zachary Flagel took note of how the game has changed even since the end of the dead ball era. Pitchers today throw the ball much harder, and batters likewise have improved their physical training and consequently their hitting power;''Baseball Rule'', 90-91 it was estimated that the
Todd Frazier Todd Brian Frazier (born February 12, 1986), nicknamed "The Toddfather", is an American former professional baseball third baseman. He played in Major League Baseball (MLB) for the Cincinnati Reds, Chicago White Sox, New York Yankees, Texas Rang ...
foul which injured the young girl at Yankee Stadium was traveling at when it struck her. At those speeds, spectators have less than half a second to react in the time it takes a ball to reach the stands, barely more than the quarter-second average human reaction time to visual stimuli. In 2004, the
Massachusetts Appeals Court The Massachusetts Appeals Court is the intermediate appellate court of Massachusetts. It was created in 1972 as a court of general appellate jurisdiction. The court is located at the John Adams Courthouse at Pemberton Square in Boston, the same ...
noted the testimony of a plaintiff's expert witness, an engineering professor who calculated that a woman with no baseball familiarity who suffered permanent facial injuries from a foul that hit her at a
Boston Red Sox The Boston Red Sox are an American professional baseball team based in Boston. The Red Sox compete in Major League Baseball (MLB) as a member club of the American League (AL) East division. Founded in as one of the American League's eight ...
game had little more than a second from the time the ball was hit to react to it, although it upheld summary judgement for the team per Massachusetts' earlier acceptance of the Baseball Rule. Grow and Flagler also calculated that early 21st century spectators are closer to the field of play than their counterparts of previous eras. The advent of retro-classic ballparks in the mold of
Baltimore Baltimore ( , locally: or ) is the List of municipalities in Maryland, most populous city in the U.S. state of Maryland, fourth most populous city in the Mid-Atlantic (United States), Mid-Atlantic, and List of United States cities by popula ...
's
Oriole Park at Camden Yards The Oriole Park at Camden Yards is a baseball stadium located in Baltimore, Maryland. It is the home field of Major League Baseball's Baltimore Orioles, and the first of the Baseball park#Retro-classic ballparks, "retro" major league ballparks ...
accelerated a trend of putting spectators closer to the action. Backstops are now closer to home plate than they were in the mid-20th century, and the amount of overall foul territory has declined 21 percent since 1920, shortly after the Baseball Rule was established, suggesting spectators' ability to react to a foul has been correspondingly attenuated. Most of this decline has occurred since the early 1990s.''Baseball Rule'', 87-90 As the cases involving mascot antics attest, spectators are offered a greater degree of distractions. In the past, spectators' attention, as it was in ''Keys'', might be diverted from the action on the field only by socializing with those seated nearby. "While fans of yesteryear could be held responsible for their own assumption of risk associated with being hit by a projectile leaving the field," wrote the authors of a 2002 '' Marquette Sports Law Review'' article, "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."''Baseball Spectators'', at 55 But, "baseball games today are increasingly marketed as multifaceted entertainment experiences, offering spectators a variety of additional stimuli potentially distracting their attention from the action on the field", Grow and Flagler write. In addition to the mascots, increasingly sophisticated scoreboards run detailed video graphics with advertisements and scores and video highlights of games being played elsewhere. Ballparks also now offer free
Wi-Fi Wi-Fi () is a family of wireless network protocols, based on the IEEE 802.11 family of standards, which are commonly used for local area networking of devices and Internet access, allowing nearby digital devices to exchange data by radio wave ...
, encouraging fans to use their
smartphone A smartphone is a portable computer device that combines mobile telephone and computing functions into one unit. They are distinguished from feature phones by their stronger hardware capabilities and extensive mobile operating systems, whic ...
s to interact with players via
social media Social media are interactive media technologies that facilitate the creation and sharing of information, ideas, interests, and other forms of expression through virtual communities and networks. While challenges to the definition of ''social medi ...
during games, or order food for later pickup.''Baseball Rule'', 97-98 Improvements in pitching, such as better conditioning and an increased reliance on specialist
relief pitcher In baseball and softball, a relief pitcher or reliever is a pitcher who enters the game after the starting pitcher is removed because of fatigue (medical), fatigue, ineffectiveness, injury, or ejection (sports), ejection, or for other strategic ...
s, have led to an increase in foul balls; in 2017 the number of foul balls exceeded balls put in play for the first time, according to
FiveThirtyEight ''FiveThirtyEight'', sometimes rendered as ''538'', is an American website that focuses on opinion poll analysis, politics, economics, and sports blogging in the United States. The website, which takes its name from the number of electors in th ...
. Most of those foul balls have gone into the stands; the website attributes this development to the shrinkage of foul territory on the playing field. In 2014
Bloomberg News Bloomberg News (originally Bloomberg Business News) is an international news agency headquartered in New York City and a division of Bloomberg L.P. Content produced by Bloomberg News is disseminated through Bloomberg Terminals, Bloomberg Televi ...
estimated that there were, on average, 1,750 foul ball injuries at MLB parks every season; meaning fans get hit by foul balls more than batters get
hit by a pitch In baseball, hit by pitch (HBP) is an event in which a batter or his clothing or equipment (other than his bat) is struck directly by a pitch from the pitcher; the batter is called a hit batsman (HB). A hit batsman is awarded first base, provided ...
.


Incompatibility with law and economics

Grow and Flagel note that the Baseball Rule, unlike many other areas of tort law, has not been reexamined under
law and economics Law and economics, or economic analysis of law, is the application of microeconomic theory to the analysis of law, which emerged primarily from scholars of the Chicago school of economics. Economic concepts are used to explain the effects of laws ...
, a movement that began with
Guido Calabresi Guido Calabresi (born October 18, 1932) is an Italian-born American legal scholar and Senior United States circuit judge of the United States Court of Appeals for the Second Circuit. He is a former Dean of Yale Law School, where he has been a pr ...
's 1970 book '' The Cost of Accidents''. The goal in torts under law and economics is for most liability to rest with the party that can avoid the most risk at the least cost. "By doing so," they write, "courts can allocate liability in a way that increases the likelihood the parties will adopt the optimal level of precaution necessary in a given case, thus minimizing the overall social cost of accidents."''Baseball Rule'', 98–106. It would cost MLB teams, which collectively see around $10 billion a year in revenue, mere thousands and a few days to install more of netting in thinner sizes which are less visually obstructive, Grow and Flagel argue. Injured spectators, on the other hand, 7.5 percent of whom require hospitalization, bear the costs of their own medical care (or their insurers) if they cannot recover in court. Those have reached $150,000 in some cases. Additional screening, Grow and Flagel allow, will have some additional costs to teams beyond the installation. As many of the Baseball Rule cases have noted, the unprotected seats offer fans not just an unobstructed view but a chance to catch and keep a foul ball, which teams have permitted fans to do since 1921. Some may decide not to attend if that opportunity is denied them; however Grow and Flagel believe fans will adjust. The seats behind home plate and thus the backstop, they note, are typically the most expensive at any ballpark, "suggest ngthat fans will continue to prioritize proximity to the field over an unobstructed view, and will adjust to the presence of additional netting.". Fans, by contrast, have three options to reduce their risk: sit in a protected seat, sit in a distant area of the stadium beyond reach of foul balls, or not attend the game at all. Grow and Flagel do not think these options are optimal. As previously noted, it is often utterly impossible or costly to obtain tickets behind screening. Fans choosing to sit in the upper decks will make the experience of watching games less desirable, and not going to games at all would cost teams more than the netting would. "The insights provided by the law-and-economics movement strongly suggest that the Baseball Rule currently fails to impose liability on the lowest cost and best risk avoider—the team itself—in the most efficient and socially optimal manner", Grow and Flagel write. Grow and Flagel argue that courts should abandon the Baseball Rule, or seriously modify it. They recommend subjecting teams to a
strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
standard for spectator injuries, which they admit might increase ticket prices but could be balanced by allowing some consideration of a spectator's own negligence, such as intoxication or making a deliberate attempt to catch the ball. Should courts or legislatures decline to do so, they could then expand the definition of the most dangerous area of the field, which most courts, along with the New Jersey statute enacted in response to ''Maisonave'', have historically defined as the area behind home plate, without any real evidence. "The fact that MLB itself has officially encouraged its teams to extend their protective netting beyond just the area immediately behind home plate," they observe, "strongly suggests that the Baseball Rule, as traditionally applied, no longer imposes a reasonable level of care upon professional baseball teams."''Baseball Rule'', 111–118. Courts could also hold that teams have a duty to warn fans about the dangers of foul balls entering the stands to a greater extent than they currently do, contrary to the
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
that landowners generally do not have to, Grow and Flagel write. While spectators may be aware that foul balls do enter the stands, they may be under the impression those are pop flies, more easily avoidable than the
line drive In the sports of baseball and softball, a batted ball is a pitch that has been contacted by the batter's bat. Batted balls are either fair or foul, and can be characterized as a fly ball, pop-up, line drive, or ground ball. In baseball, a fou ...
fouls that have caused injuries and deaths, and they may overestimate their ability to react to the latter. While mandatory warnings of hazards have been criticized as ineffectual, courts have been receptive to them in situations where the risk of distraction is high. Grow and Flagel suggest that if warnings were mandated, teams would have an incentive to experiment and find the most effective ways of delivering them.''Baseball Rule'', 118–122.


Defenses and responses

The Baseball Rule has its defenders. "The fact that the limited duty rule has its origins in the earliest days of baseball does not mean it's anachronistic or unfair" writes David Tavella. Without it, he believes teams would have no choice but to screen off the entire field, depriving most fans of a chance to catch a foul or connect with the players. In particular, he criticizes the New Mexico appeals court's ''Crespin'' decision, which had not yet been overruled at the time of his writing, as going too far in leaving all determinations of duty to the jury, which could lead to inconsistent results. Were the Baseball Rule to be modified, he believes, ''Maisonave'' is a more sensible standard, in his opinion, since it limits the rule's application to spectators engaged in the game from the seating area and its immediate vicinity.David Tavella,
Duty of Care to Spectators at Sporting Events: A Unified Theory
, 6 Fla. A&M U. Law Rev. 181, 189–190 (2010)
Tavella also dismisses complaints about the reliance on
assumption of risk Assumption of risk is a defense, specifically an affirmative defense, in the law of torts, which bars or reduces a plaintiff's right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and kno ...
. "The riticismsgenerally are that the rule is old, so it must be changed." He is dubious of plaintiffs who testify that their baseball knowledge was so limited that they had no idea balls would leave the field of play, saying that danger should be obvious to a first-time spectator."Duty of Care", at 192. Tavella believes that a combination of the limited-duty rule established in ''Maisonave'', the assumption of risk defense, and a general negligence standard would best balance the interests of teams and spectators."Duty of Care", 195–196 The cases involving mascot antics have come in for specific criticism. Ross Freeman, a law student at Missouri at the time, argued in 2015 that ''Coomer'' in particular was wrongly decided for both legal and policy reasons. On a legal basis, he noted, the state did not recognize different degrees of negligence. He saw even stronger policy reasons, believing the decision would adversely affect the state's MLB teams.Ross Freeman,
The (Hot) Dog Days of Summer: Missouri's 'Baseball Rule' Takes a Strike
, 80 Mo. L. Rev. 560, 571–75 (2015)
Citing a 2013 article in ''
The Wall Street Journal ''The Wall Street Journal'' is an American business-focused, international daily newspaper based in New York City, with international editions also available in Chinese and Japanese. The ''Journal'', along with its Asian editions, is published ...
'' that found the total actual gameplay in MLB games averaged about 18 minutes out of the three hours it usually took to play, Freeman argued that mascots and other in-stadium entertainment were now inextricably part of the game, contrary to the state supreme court's holding: The court could also have distinguished ''Coomer'' from ''Lowe'', the California precedent it relied on, Freeman wrote, by noting that Tremor's behavior in the latter case was not just negligent but recklessly so.''Dog Days'', 577–78, Garrett Broshuis, a former minor league player and baseball writer who has since become an attorney, makes similar arguments for both retaining the Baseball Rule and not applying it to objects tossed by mascots. In the former instance, he notes, in addition to other arguments, that stadium designers allow for it. In the latter, he sees little difference between the launched or thrown hot dogs and foul balls, as both are often equally desired. "So long as adequate care is taken in the selection of such souvenirs for tossing, these two attributes—spectator awareness and spectator desirability—dictate that the baseball rule should extend to souvenirs thrown into the stands." Garrett Broshuis,
Death to the Crazy Hot Dog Vendor? The Continued Erosion of the Baseball Rule After ''Coomer v. Kansas City Royals''
, 6-7, sportslaw.org (2013)


See also

*
1913 in baseball Champions *World Series: Philadelphia Athletics over New York Giants (4-1) Awards and honors * Chalmers Award ** Walter Johnson, Washington Senators, P ** Jake Daubert, Brooklyn Dodgers, 1B MLB statistical leaders 1 MLB Triple Crown Win ...
*
Baseball law Baseball law refers to the various civil statutes, local ordinances, and court decisions pertaining to the game of baseball and its institutions, as distinguished from the Rules of Baseball, which are a private codification of rules governing the ...
*''
Federal Baseball Club v. National League ''Federal Baseball Club v. National League'', 259 U.S. 200 (1922), is a case in which the U.S. Supreme Court ruled that the Sherman Antitrust Act did not apply to Major League Baseball. Background After the Federal League folded in 1915, most of ...
'', 1922 U.S. Supreme Court decision finding baseball was not
interstate commerce The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and among ...
and therefore exempt from antitrust law, a decision still in force but likewise criticized as based on outdated facts and legal understanding. *
Matt Keough Matthew Lon Keough ( ; July 3, 1955 – May 1, 2020) was an American professional baseball player. He played in Major League Baseball (MLB) as a right-handed pitcher from through for the Oakland Athletics (1977–1983), New York Yankees (1983 ...
, pitcher whose playing career ended in 1992 after injuries from a foul ball that struck him in the dugout *
Luis Salazar Luis Ernesto Salazar Garcia (born May 19, 1956) is a Venezuelan former professional baseball player, coach and manager. He played in Major League Baseball from 1980 to 1992 as a third baseman and outfielder for the San Diego Padres (1980–84, 19 ...
, former player who lost an eye from a foul ball injury while sitting in the dugout. *''
Bolton v Stone ''Bolton v. Stone' 9511 All ER 1078 is a leading House of Lords case in the tort of negligence, establishing that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. The plaint ...
'', an English court case of a bystander struck by an errant cricket ball


Notes


References

{{reflist, 30em Common law rules Baseball law United States tort case law 1913 in baseball