Can Sox Be Liable for Injuries from Foul Balls, Broken Bats? by Jeffrey N

massachusetts

Volume 43 Issue No. 47 July 13, 2015 Can Sox be liable for injuries from foul balls, broken bats? By Jeffrey N. Catalano risk that immunizes owners from liability for injuries resulting from foul balls On June 5, Tonya Carpenter was and bats if they have sufficient netting. struck in the face by a broken bat while Our courts simply have not chosen to attending a Red Sox game at Fenway “screen” baseball from all tort remedies. Park with her 8-year-old son. She was Lawyers often refer to past unsuccess- sitting close to home plate near the vis- ful attempts by fans to sue the Red Sox itor’s dugout on the third base side. She for injuries from foul balls. The most was carried off the field in severe pain, recent case was Costa v. Boston Red Sox covered in blood, and hospitalized with Baseball Club, 61 Mass. App. Ct. 299 life-threatening injuries. (2004). In Costa, a spectator was injured Thankfully, Carpenter is recovering by a foul ball hit into the stands. How- according to recent media accounts. ever, the only negligence theory pur- But a common question arising from sued was failure to warn, which the Ap- the frightening event is whether a fan peals Court concluded does not extend has a viable claim against the home team to dangers that would be obvious to per- if struck by a bat or a ball in the stands. sons of average intelligence, such as a Jeffrey N. Catalano The broader legal question, which ap- foul ball entering the stands. Id. at 303. despite the obvious risk of doing so. Id. plies to many other premises liability The remaining question is, will base- at 148, 163. cases, is whether a person has a claim ball fans continuously strike out when- Reasons for a landowner to antici- when injured by an open and obvious ever they pursue a claim for injuries due pate harm include whether the invitee hazard that has been created or main- to an open and obvious danger not en- may be “distracted ... and forget ... or tained by a landowner. tirely within their control? Let’s first dispense with the miscon- The answer lies in the Supreme Judi- fail to protect himself” from the obvi- ception that all fans who enter a ball- cial Court’s recent decision in Dos San- ous danger. park assume the risk of being injured by tos v. Coleta, 465 Mass. 148 (2013). In That includes, for example, common a flying ball or bat. It is true that the lan- Dos Santos, the plaintiff tenant jumped circumstances in which a landowner guage on the back of the Red Sox ticket from a three-foot trampoline placed ad- hires a contractor to perform work in reads: “The holder of this ticket volun- jacent to a two-foot-deep inflatable pool an area where the owner has created or tarily assumes all risks and danger of ... by the defendant landowner. The tenant maintained a hazardous condition, such personal injury incidental to the game of attempted a forward flip and struck his as an unprotected skylight or roof open- baseball and related activities at Fenway head on the bottom of pool, rendering ing. While that danger may be obvious, Park including ... the danger of being in- him a paraplegic. the landowner should expect that a con- jured by thrown or flying objects includ- Consistent with Costa, the SJC contractor may become distracted in his ing bats and balls.” cluded that the landowner did not have work and should place a barrier around Notwithstanding that language, Mas- a duty to warn of the obvious risk. How- the hazard. sachusetts specifically abolished the de- ever, the SJC also concluded in Dos San- Another reason for a landowner to an- fense of assumption of the risk in 1974. tos that a landowner has a duty to rem- ticipate harm is when a reasonable per- G.L.c. 231, §85. Arguing that point is as edy an open and obvious danger where son in that position would conclude that useless as arguing a called third strike. he has “created and maintained” the the advantages of the danger outweigh Massachusetts also has not expressly dangerous condition or unsafe design the risk. Id. at 155. adopted the antiquated “Baseball Rule.” and should anticipate that lawful en- With regard to Fenway Park, the anal- This is a species of assumption of the trants would choose to encounter it ysis depends on whether the netting is iStock sufficient given the proximity of the seats may become distracted and forget to Sox have no problem selling seats be- to home plate. (Insufficient netting is watch out for bats and balls headed their hind home plate for a few hundred bucks also an exception to the “Baseball Rule.”) way. With all the food vendors, Wally each. In that location, the detriment of a Fenway Park reportedly has the least the Green Monster, JumboTron displays net certainly pales in comparison to tak- amount of foul territory of any of the 30 and, yes, cellphones, who’s really watch- ing a ball in the teeth instead of a Fen- parks in the major leagues. That trans- ing each of those 150 pitches during a way Frank. lates to more fans closer to the diamond. three-hour game? In reality, however, such a case against In fact, The Boston Globe studied the Also, today’s stronger players hit balls the Red Sox would be difficult to win. issue in a 2003 story after unprotect- that travel at a speed of over 100 mph off Most assume these incidents and injuries ed field-level seats were added at Fen- the bat. Even if a fan is paying attention, are an accepted part of baseball and you way. The Globe found that Fenway had there aren’t too many Pedroias sitting can’t screen the entire park. more unprotected seats within 90 feet of in the stands who can snag a line drive This summer, an easier argument is home plate than any of the other parks (while also holding a beer ... or a baby; that the Sox have a greater duty to rem- surveyed. It also has the shortest dis- #DadCatch). edy what’s happening on the field, rather tance from home to the nearest unpro- That’s the reason a reported 1,750 fans than what’s off. Otherwise, with anoth- tected seat. That could open up a negli- are injured by fouls balls each year. Even er last place finish, the owners’ duty to gent design theory postulated in Costa. if unprotected fans are only as close to warn of flying objects may apply more to Id. at 158. the action as the players in the dugout, the players than the fans. MLW In fairness, however, the cozy con- those players frequently dive for cov- fines of Fenway Park make it one of the er when a foul ball is lined at them. And most popular sports destinations for fans those players aren’t drinking beers or Jeffrey N. Catalano, a partner at Todd and tourists. reading text messages (ahem), at least & Weld in Boston, focuses on personal A duty-to-remedy analysis also takes not in the dugout. injury litigation, including premises liability into consideration whether the own- Some would argue that fans prefer not matters. He is treasurer of the Massachusetts ers should anticipate harm because fans to have a net in front of them. Yet, the Bar Association (and an avid Red Sox fan).

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