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1-1-2019

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

Robert Jarvis Nova Southeastern University - Shepard Broad College of Law, [email protected]

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NSUWorks Citation Robert Jarvis, Flying Baseballs, Injured Fans, Uncertain Liability: Why Legislative Action is Needed in the Sunshine State, 93 Florida Bar Journal 34 (2019), Available at: https://nsuworks.nova.edu/law_facarticles/395

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From the SelectedWorks of Robert M. Jarvis

January, 2019

Flying Baseballs, Injured Fans, Uncertain Liability: Why Legislative Action is Needed in the Sunshine State Robert M. Jarvis, Nova Southeastern University - Shepard Broad College of Law

Available at: https://works.bepress.com/

robert_jarvis/58/ Illustration34 THE FLORIDA by Barbara BAR Kelley JOURNAL/JANUARY/FEBRUARY 2019 Flying Baseballs, Injured Fans, Uncertain Liability: Why Legislative Action Is Needed in the Sunshine State

by Robert M. Jarvis

n January 2018, the Tampa Bay Rays announced for a middle approach, making it available in some cases plans to extend the protective netting at Tropicana but not others.10 Field.1 Two months later, every team in Major League Curiously, although Florida is a baseball hotbed,11 our Baseball (MLB) opened the 2018 season with ex- state courts have never said whether the baseball rule, in I 2 panded netting. Although MLB had been examining the any form, is available as a defense. Given this reticence, issue since at least 2008,3 three high-profile developments the time has come for legislative action. finally caused its owners to act: 1) a widely publicized 2014 study that found 1,750 MLB fans were being hit by base- The Baseball Rule Generally balls each season;4 2) Payne v. Office of the Commissioner As noted above, the baseball rule traces its roots to the of Baseball, 2016 WL 6778673 (N.D. Cal. 2016), aff’d, 705 Crane case. While watching a Kansas City Blues game, a F. App’x 654 (9th Cir. 2017), an unsuccessful class-action spectator named S.J. Crane was injured by a foul ball. When lawsuit against MLB that brought widespread attention he sued the team and its owner, the trial court granted to the subject; and, 3) a September 2017 Todd Frazier line summary judgment for the defendants.12 The Kansas City drive at Yankee Stadium that left a one-year-old girl with Court of Appeals affirmed for three reasons: 1) foul balls gruesome injuries, including a fractured skull.5 are a fundamental part of baseball; 2) being struck by a Despite the fact that all MLB stadiums now have ex- foul ball is a well-known risk of attending baseball games; panded netting, fans continue to risk being hit by baseballs, and; 3) Crane voluntarily chose to sit in an unprotected as well as shattered bats and other objects, when they go to part of the stadium.13 baseball games. This is particularly true at minor league, Over time, Crane’s holding evolved into what now is college, high school, and youth games, which (due to cost known as the baseball rule, a defense that immunizes concerns) have been slow to adopt MLB’s enhanced netting teams for injuries to spectators caused by flying objects that standards.6 leave the playing field.14 To take advantage of the baseball When a fan is injured by a projectile and decides to sue, rule, a team must provide a reasonable number of screened he or she is likely to be confronted with a judicially created seats, so that fans who do not want to risk being hit can defense known as “the baseball rule.” First recognized more still go to the game.15 While the exact number of seats that than a century ago in Crane v. Kansas City Baseball & Ex- must be screened remains unsettled, in Martinez v. Houston hibition Co., 153 S.W. 1076 (Mo. Ct. App. 1913), it protects McLane Co., 414 S.W.3d 219 (Tex. Ct. App. 2013), a lawsuit teams from liability as long as they provide at least some against the Houston Astros, the Texas Court of Appeals screened seats. Over the years, a majority of states have found it sufficient that 5,000 of Minute Maid Park’s 41,000 adopted the baseball rule7 and several have extended it seats were screened.16 to hockey due to the risks posed by flying pucks.8 A few Despite its seeming simplicity, the baseball rule leaves jurisdictions have rejected the rule.9 Still others have opted open many questions. In Coomer v. Kansas City Royals

THE FLORIDA BAR JOURNAL/JANUARY/FEBRUARY 2019 35 Baseball Corp., 437 S.W.3d 184 (Mo. are presumed to have knowledge of tives that did not involve its cops. It 2014) (en banc), for example, the Mis- and to assume the inherent risks then suggested that Woodford might souri Supreme Court held that the of observing professional baseball be able to show that “the construc- baseball rule did not bar a lawsuit games. These risks are defined as inju- tion of a protective fence around the brought by a spectator named John ries which result from being struck by playing-field…could have prevented Coomer, who was hit in the eye by a a baseball or a baseball bat anywhere the formation and ensuing activities hot dog thrown by the team’s mascot. on the premises during a professional of the gangs of baseball retrievers.”29 Although acknowledging that such baseball game.”23 In Buck v. McLean, 115 So. 2d 764 antics now take place regularly at (Fla. 1st DCA 1959), Terryss Buck ballparks and are used to keep fans The Baseball Rule in Florida was struck in the eye by a baseball entertained during stoppages of play, No reported court decision in Flor- while attending a high school game the court concluded: “[T]he risk of ida squarely addresses the baseball at Apalachicola Memorial Stadium. being injured by Sluggerrr’s hotdog rule. Nevertheless, there are cases in Together with her husband, Lamb, toss is not one of the inherent risks which a spectator has been injured, Terryss sued the Franklin County of watching a Royals home game.”17 either directly or indirectly, by a base- school board, asserting that a wire In ruling as it did, the Coomer ball, or a bat, and has sued. screen meant to protect spectators court did not abolish the baseball In Woodford v. City of St. Petersburg, had a hole in it. rule. Instead, it merely held that it 84 So. 2d 25 (Fla. 1955) (Div. A), for ex- The circuit court granted the school did not apply unless the flying object ample, a homeowner named Nelson F. board’s motion for summary judg- came directly from the field of play Woodford was injured when a baseball ment based on sovereign immunity. and was an inherent, and, therefore, from Huggins Field, the spring train- Although the First District Court of unavoidable, part of the sport.18 Other ing home of the New York Yankees,24 Appeal agreed that sovereign immu- courts, however, have flatly rejected landed in his backyard. In their effort nity prevented the Bucks from recov- the baseball rule. In Rountree v. Boise to retrieve the ball, a group of boys ering, it expressed sympathy for their Baseball, LLC, 296 P.3d 373 (Idaho knocked Woodford over and fractured plight: “It is a harsh doctrine indeed 2013), the Idaho Supreme Court his lower back. which leaves one without remedy for explained that there was simply “no To recover for his injuries, Woodford wrong suffered by him through the compelling public policy” for granting sued the City of St. Petersburg, the negligence of a state agent or em- baseball teams an exemption from owner of Huggins Field. In his com- ployee committed while performing standard business invitee liability.19 plaint, he alleged the city had known a proprietary function, but under While the baseball rule is a judicial for weeks that “flying squadrons” of similar circumstances imposes liabil- creation, four states have made it a young men and boys had been chasing ity on everyone else engaged in the part of their statutory law. Arizona balls “hit or thrown beyond Huggins performance of similar functions.”30 Revised Statutes Annotated §12-554 Field onto adjoining lands” and had In Chambers v. Cline, 161 So. 2d (2016) specifies, “[a]n owner is not done nothing to stop them.25 224 (Fla. 2d DCA 1964), a teenager liable for injuries to spectators who The circuit court dismissed Wood- named Peggy Jean Cline went with are struck by baseballs, baseball bats, ford’s suit because: a friend (E.W. Ellis, Jr.) to a com- or other equipment used by players even admitting the existence of the alleged mercial batting cage in Tampa called during a baseball game.”20 Colorado nuisance, any effort on the part of the [c]ity “Bat-A-Ball.” After Cline had swung to have abated the nuisance and prevent Revised Statutes Annotated §13- the trespass to appellant’s property would at 17 balls, Ellis asked to take the last 21-120 (2016) directs, “[s]pectators have involved an exercise of the police pitch. Cline agreed, and was seriously of professional baseball games are power calling into action the municipal injured when Ellis accidentally hit her presumed to have knowledge of and police force and that under the established in the face with his bat. law of this state, a municipality cannot be to assume the inherent risks of ob- held liable for the negligence of its police Cline sued Marcellus Chambers, serving professional baseball games, department whether for acts of commission Bat-A-Ball’s owner, for $125,000. insofar as those risks are obvious and or omission.26 In her complaint, she claimed that necessary. These risks include, but are On appeal, the Florida Supreme Chambers should have posted signs not limited to, injuries which result Court reversed. Although it agreed warning patrons that it was danger- from being struck by a baseball or a that a suit for police negligence was ous for two people to be in the cage baseball bat.”21 745 Illinois Compiled barred,27 it held the city could be held at the same time. Cline also believed Statutes Annotated 38/10 (2017) liable for “operating or maintaining that Chambers had been negligent in instructs, “[t]he owner or operator of public parks in such a manner as to not carefully supervising the cage and a baseball facility shall not be liable increase the hazard to persons on in not stopping Ellis from entering it for any injury to the person or prop- adjoining streets or premises of being while she was still inside. erty of any person as a result of that hit by batted or thrown baseballs.”28 At trial, the jury sided with Cline person being hit by a ball or bat.”22 In remanding the case to the circuit and awarded her $4,385.31 The Second And New Jersey Statutes Annotated court, the Florida Supreme Court District Court of Appeal reversed, §2A:53A-46 (2017) stipulates, “[s]pec- explained that Woodford would have holding that there was no evidence tators of professional baseball games to prove that the city had alterna- from which the jury could have in-

36 THE FLORIDA BAR JOURNAL/JANUARY/FEBRUARY 2019

ferred that Chambers breached any awarded Broxson $500,000.39 entered in favor of the Rippes.”43 duty he might have owed to Cline.32 On appeal, the verdict was upheld. Upon review, the Fourth District In Jackson v. Atlanta Braves, Inc., After deciding that the suit was not Court of Appeal sided with the Rippes: 227 So. 2d 63 (Fla. 4th DCA 1969), barred by sovereign immunity, the Both parties rely upon City of Milton v. cert. dismissed, 237 So. 2d 540 (Fla. First District Court of Appeal ruled Broxson….Although there is no evidence 1970), C. Paul Jackson attended a that the city had no duty to post of prior similar incidents in the present case, the jury could have inferred the spring training game between the warning signs because its “knowl- [c]ity had knowledge that the height of Braves and the Los Angeles Dodg- edge of [the] dangers [of spectators the fence created a dangerous condition ers at West Palm Beach Municipal being hit by flying softballs] was no based upon the park recreation man- Stadium.33 While seated behind home greater than [Broxson’s] knowledge.”40 ager’s testimony that the bleachers were provided in a safe area behind the eight plate, he “was struck by a foul ball However, it found there was sufficient foot fence. In addition, based upon this which was tipped over the vertical evidence to support the jury’s conclu- testimony, the jury could have concluded backstop[.]”34 As a result of the ac- sion that the park was unreasonably that the [c]ity should have and did expect that parents would choose to stand in cident, Jackson permanently lost the dangerous due to its lack of a separate front of the four foot fence rather than sit sight in his right eye.35 warm-up area: on the bleachers in a safer area.44 Jackson sued both the Braves and We believe that it can fairly be said that Most recently, in Giordano v. Babe the City of West Palm Beach (which the hazardous activity which the appel- Ruth League, Inc., 2013 WL 6911496 owned the stadium) for inadequate lant allowed to continue without taking appropriate steps for the safety of the (Fla. Cir. Ct. St. Johns Cnty. 2013), a netting.36 The circuit court granted spectators was of such a nature that the girl was injured prior to the start of a summary judgment to the defendants. appellant should have reasonably antici- baseball game at Mills Field, a park In a remarkably cryptic one-page per pated that such hazardous activity would owned by St. Johns County. According curiam decision, the Fourth District cause spectator injury notwithstanding the spectators’ knowledge of the danger.41 to her complaint: Court of Appeal reversed: On or about October 13, 2007, two base- We have thoroughly reviewed the briefs of Judge Thompson dissented, arguing ball players in the outfield…engaged in the parties and the record on appeal. While that Broxson was 100 percent at fault pre-game warm-ups…rather than in a there does not appear to be substantial because he had been injured in an designated warm-up area. One of the conflict in the evidentiary facts, it appears area that was off-limits to spectators: players overthrew the baseball at a high to us that various conclusions reasonably rate of speed…. The baseball passed over might be drawn as to the ultimate factual As an implied invitee spectator, and not a a fence and/or through a gap in a fence… issues of negligence, contributory negli- player, Broxson’s implied invitation was meant to protect spectators/business invi- gence, and assumption of risk.37 only to use the bleachers furnished for spectators, the restroom and concession tees, and the baseball struck [the plaintiff] In referring to “assumption of risk,” facilities afforded for his comfort, and their in the head…causing her serious bodily injury….45 it is possible the panel had the base- necessary access areas. This invitation did not extend to the playing field, warm-up ball rule in mind. Unfortunately, there area or other parts of the park facility, and To recover for her injuries, the girl, is no way to tell. A later newspaper he was not an invitee to these areas. He acting through her parents, sued St. report indicates that on remand, went down into the warm-up area to talk Johns County and the five leagues to friends and acquaintances for his own 38 that had sanctioned the game. Fol- Jackson lost his lawsuit. convenience and benefit, and was at most In City of Milton v. Broxson, 514 a licensee at the time of the accident….The lowing discovery, the St. Johns Circuit So. 2d 1116 (Fla. 1st DCA 1987), rev. [c]ity’s motion for directed verdict should Court granted summary judgment in 42 dismissed, 537 So. 2d 568 (Fla. 1988), have been granted. favor of one of the leagues.46 Shortly Charles A. Broxson was attending a In City of Coral Springs v. Rippe, thereafter, the other parties settled.47 softball game in Sanders Park when 743 So. 2d 61 (Fla. 4th DCA 1999), he decided to leave the bleachers and rev. dismissed, 751 So. 2d 1250 (Fla. The Need for Legislative Action walk over to an area behind the third- 2000), Helene and Herbert Rippe were Given the foregoing lack of judicial base dugout. On his way back to his watching their son play in a Little clarity, the time has come for the seat, he was seriously injured when League baseball game at Mullins Florida Legislature to decide whether he was hit in the head by a softball Park. To get a better view, Helene the baseball rule applies in Florida. If thrown by a player who was warming moved from the bleachers to a spot the answer is “no,” a simple law saying up for the next game. in front of the players’ bench. While so will do the trick.48 If the answer is In his lawsuit against the city, there, she was hit by a foul ball and “yes,” however, a more detailed one Broxson argued the park was unrea- knocked unconscious. will be needed. In drafting it, our law- sonably dangerous. In particular, he To protect spectators, the city had makers should pay close attention to alleged that it should have included installed an eight-foot fence around the four states that already have such a separate warm-up area, as well as most of the field. Where Helene had a statute. signs warning spectators to watch out been standing, however, the fence As explained above, Colorado and for flying softballs. He also alleged the was only four feet high. Based on New Jersey limit their laws to profes- city had known for years that fans this fact, “[t]he jury concluded that sional baseball games. In contrast, were being injured by players warm- Helene was 60 [percent] at fault and Arizona and Illinois apply their laws ing up near them. At trial, the jury the City was 40 [percent] at fault. to all baseball games. And while found the city 70 percent liable and A final judgment of $130,000 was Illinois and New Jersey’s laws are

38 THE FLORIDA BAR JOURNAL/JANUARY/FEBRUARY 2019 restricted to injuries caused by base- their announcement at the same time as In 2017, 49 million people went balls or bats, Arizona’s law includes the Arizona Diamondbacks, the last two to minor league games. See David P. 49 teams to do so. See Maury Brown, With Kronheim, Minor League Baseball any equipment used by players. D-Backs and Rays Announcements, MLB 2017 Attendance Analysis 14 (2018), Colorado’s law is even broader — it is Set for League-Wide Expanded Netting available at http://numbertamer.com/ immunizes defendants from any risk in 2018, FORBES, Jan. 31, 2018, available files/2017MinorLeagueAnalysis.pdf. Ac- that naturally arises from watching a at https://www.forbes.com/sites/maury- cording to the National Collegiate Athletic brown/2018/01/31/with-dbacks-and-rays- Association (NCAA), more than 8 million baseball game. announcing-mlb-will-have-league-wide- people went to college baseball games. In addition to deciding whether to expanded-netting-for-2018/. See NCAA, Baseball Attendance Re- include all baseball games or only 2 See Maury Brown, Expanded Safety cords—2017 Attendance Records (2018), Netting in MLB Gets Its Full Test on available at http://fs.ncaa.org/Docs/stats/ some baseball games, and all types Opening Day, FORBES, Mar. 30, 2018, baseball_RB/2018/attend.pdf. Although of equipment or only some types of available at https://www.forbes.com/ attendance figures for high school and equipment, and all participants or sites/maurybrown/2018/03/30/expanded- youth games are not kept on a systematic only some participants, Florida’s safety-netting-in-mlb-gets-its-full-test- basis, the 2017 Little League World Series on-opening-day/. In describing the new tournament alone drew nearly 300,000 lawmakers should consider a number netting at Tropicana Field, the Ray’s spectators. See John Beale, The Wonder of other matters, such as whether the official blog informed readers: “The Rays of Williamsport, ESPN (Aug. 28, 2017), baseball rule applies only to baseball have extended the netting to the ends http://www.espn.com/espn/feature/story/_/ 50 of both dugouts to improve the safety of id/20477258/how-williamsport-becomes- or also extends to hockey. fans attending games…the green, knot- center-baseball-universe. Likewise, as will be recalled, in less net provides enhanced visibility 7 See, e.g., Jay M. Zitter, Annotation, Coomer the Missouri Supreme Court for fans seated behind it, replacing the Liability to Spectator at Baseball Game held that being hit by a hot dog traditional black, knotted nets that previ- Who is Hit by Ball or Injured as Result ously extended to the home plate end of of Other Hazards of Game—Failure to thrown by the team’s mascot is not each dugout[.]” Here’s What’s Happening Provide or Maintain Sufficient Screening, covered by the baseball rule, even on Opening Day 2018, The Ray Tank Blog 82 A.L.R.6th 417 (2013 & 2018 Supp.); though such entertainment now is a (Mar. 23, 2018), https://raytank.mlblogs. James L. Rigelhaupt, Jr., Annotation, standard part of the fan experience at com/heres-what-s-happening-on-opening- Liability to Spectator at Baseball Game day-2018-4e12bb8ad4dd. Who is Hit by Ball or Injured as Result of many ballparks. Along similar lines, 3 MLB became concerned after two Win- Other Hazards of Game, 91 A.L.R.3d 24 in 2013 Beth Fedornak was injured at throp University researchers discovered (1979 & 2018 Supp.). a Miami Marlins baseball game when that between 1862 and 2007, more than 8 See, e.g., Sciarrotta v. Global Spectrum, 75 fans had died from flying baseballs. See 944 A.2d 630 (N.J. 2008); Morris v. Cleve- “Bob the Shark,” one of the team’s rac- Dave Anderson, When Foul Balls Become land Hockey Club, 105 N.E.2d 419 (Ohio ing mascots, jumped into the stands Lethal Projectiles, Fans are Mostly Unpro- 1952); Moulas v. PBC Prods. Inc., 570 and pretended to swallow her head. tected, N.Y. TIMES, Apr. 20, 2008, available N.W.2d 739 (Wis. Ct. App. 1998); Stern v. Claiming that Bob’s act had caused at https://www.nytimes.com/2008/04/20/ Madison Square Garden, 641 N.Y.S.2d 41 sports/20iht-BASE.1.12164014.html (dis- (App. Div. 1996); Lukacko v. Connecticut 51 her lasting neck injuries, she sued, cussing ROBERT M. GORMAN & DAVID W EEKS, Islanders, 2015 WL 1588417 (Conn. Su- but settled before trial.52 DEATH AT THE BALLPARK: A COMPREHENSIVE per. Ct. 2015); Pestalozzi v. Philadelphia STUDY OF GAME-RELATED FATALITIES OF Flyers, 576 A.2d 72 (Pa. Super. Ct. 1990). PLAYERS, OTHER PERSONNEL AND SPECTATORS Conclusion See also Christopher T. Yamaguchi, The IN AMATEUR AND PROFESSIONAL BASEBALL, Price of Admission: Liability in Profes- Although a day at the ballpark nor- 1862-2007 (2008)). sional Baseball and Hockey for Spectator mally results in nothing more serious 4 See David Glovin, Baseball Caught Injuries Sustained During the Course of than a sunburn, on occasion fans do Looking as Fouls Injure 1,750 Fans a Year, the Game (2013), available at http://schol- BLOOMBERG NEWS, Sept. 9, 2014, available arship.shu.edu/cgi/viewcontent.cgi?articl get hurt. When such an injury occurs at www.bloomberg.com/news/2014-09-09/ e=1400&context=student_scholarship. in Florida, the issue of liability must baseball-caught-looking-as-fouls-injure- 9 See note 7. be litigated because Florida courts 1-750-fans-a-year.html. 10 Id. 5 11 have never defined the duties that See Wallace Mathews, Line Drive See Louis H. Schiff & Robert M. Jarvis, Strikes Young Girl in the Face at Yankee A Survey of Florida Baseball Cases, 40 exist in such situations. Stadium, N.Y. TIMES, Sept. 21, 2017, at NOVA L. REV. 49, 50 (2015) (explaining Given the foregoing, the Florida B10. See also William Weinbaum, How that “the state is home to two…MLB Legislature should consider adopting One Fan’s Story Contributed to a Conver- …teams, [14] minor league teams, [15] sation About MLB’s Safety Netting, ESPN spring training sites, both of the schools a comprehensive liability regime. To (Mar. 31, 2018), http://www.espn.com/ that train future big league umpires, and be successful, such legislation will mlb/story/_/id/22955279/how-baseball- numerous amateur and youth teams.”). have to do three things: 1) encourage reached-tipping-point-fan-protection. 12 Crane, 153 S.W. at 1076-77. 6 13 prudent behavior by players, teams, In May 2018, Cloey Heckendorn, a Id. at 1077-78. See also A “Fan” Loses fan at a minor league baseball game in Damage Suit, K.C. STAR, Feb. 17, 1913, at stadiums, and fans; 2) provide redress California, was hit in the head by a bat 1. Crane spent 50 cents for a seat in the to injured spectators that is appropri- and had to be taken to the hospital. Had grandstand, which had both screened ate under the circumstances; and, 3) the stadium had MLB-style netting, the and unscreened seating. After entering ensure that the cost of liability insur- accident would have been avoided. See the stadium, he decided to sit in one of Shane Newell, Fan Hit by Flying Bat at the unscreened seats to be able to see the ance remains reasonable for profes- Rancho Cucamonga Quakes Game Raises game better. Crane, 153 S.W. at 1078. For sional, amateur, and public entities.‰ Baseball Safety Question, RIVERSIDE PRESS- a further look at the case, see J. Gordon ENTERP. (Cal.), May 26, 2018, available Hylton, A Foul Ball in the Courtroom: at https://www.pe.com/2018/05/26/fan- The Baseball Spectator Injury as a Case 1 See Marc Topkin, Rays Extend Trop hit-by-flying-bat-at-rancho-cucamonga- of First Impression, 38 TULSA L. REV. 485 Nets for Safety, TAMPA BAY TIMES, Feb. quakes-game-raises-baseball-safety- (2003). 1, 2018, at 1 (Sports). The Rays made question/. 14 See Wallace Matthews, Netting Im-

THE FLORIDA BAR JOURNAL/JANUARY/FEBRUARY 2019 39 proved Fan Safety, but in Court, It’s Teams Salevan v. Wilmington Park, Inc., 72 A.2d complaint dated Oct. 11, 2011). that are Protected, N.Y. TIMES, Mar. 29, 239 (Del. Super. Ct. 1950), and Annota- 46 Giordano, 2013 WL 6911496, at *1. 2018, at B15. tion, Liability of Owner or Operator of Although the court did not explain its 15 Most fans, however, prefer unscreened Park or Other Premises on Which Baseball decision, it is clear from the complaint seats because they provide a better view or Other Game is Played, for Injuries by that the dismissed league had the least and offer the possibility of catching a ball. Ball to Person on Nearby Street, Sidewalk, amount of knowledge and control. See Benjamin v. Detroit Tigers, Inc., 635 or Premises, 16 A.L.R.2d 1458 (1951)). 47 See Giordano, Michele v. Jacksonville N.W. 219, 222 (Mich. Ct. App. 2001), ap- 29 Woodford, 84 So. 2d at 27. See also St. Beach Babe Ruth Baseball Assoc., Inc., peal denied, 645 N.W.2d 664 (Mich. 2002) Pete Man Wins Right to Sue, TAMPA TRIB., CA11-1352 (2014) (indicating that an (“[T]here is inherent value in having most Dec. 16, 1955, at 32A. Because no further agreed settlement order was filed on April seats unprotected by a screen because mention of the lawsuit appears in either 16, 2014, and the case was closed on July baseball patrons generally want to be in- case reporters or newspapers, it is as- 22, 2014). volved with the game in an intimate way sumed the parties settled on remand. 48 For two recent articles arguing that and are even hoping that they will come 30 Buck, 115 So. 2d at 768. the baseball rule should be abolished, see in contact with some projectile from the 31 See Woman Hit with Ball Bat Wins Nathaniel Grow & Zachary Flagel, The field[.]”). $4,385 Judgment, TAMPA TRIB., Dec. 6, Faulty Law and Economics of the “Baseball 16 Martinez, 414 S.W.3d at 229. 1962, at 8D. The case’s facts are taken Rule,” 60 WM. & MARY L. REV. 59 (2018), 17 Coomer, 437 S.W.3d at 188. In an largely from this article. available at https://papers.ssrn.com/sol3/ almost-identical incident in June 2018, 32 Chambers, 161 So. 2d at 225. papers.cfm?abstract_id=3143732; Chris a fan named Kathy McVay was hit 33 The Braves played at Municipal Sta- Breton, The Seventh-Inning Stretch[er]?: in the eye by a hot dog at a Philadel- dium from 1963 to 1997. In 1998, they Analyzing the Antiquated “Baseball Rule” phia Phillies game. See David Moye, moved to Cracker Jack Stadium in Lake and How It Governs Fan Injuries at Major Phillie Phanatic Shoots Baseball Fan Buena Vista. See PAHIGIAN, SPRING TRAIN- League Baseball Games, 21 U. D EN. SPORTS in the Eye with Hot Dog, HUFFPOST, ING HANDBOOK at 118. & ENT. L.J. 209 (2018). June 21, 2018, available at https:// 34 Jackson, 227 So. 2d at 63. 49 Given that the statute mentions only www.huffingtonpost.com/entry/kathy- 35 See Baseball Fan Sues for Eye, PALM players, a suit against a team’s manager mcvay-hot-dog-cannon-phillies-phanat- BEACH POST, June 30, 1966, at A8. or coach presumably would not be barred. ic_us_5b2c1e25e4b00295f15ac439. 36 Id. (“Jackson…was hit in the right In 2013, long-time Eastern Connecticut 18 For another such case, see Lowe v. Cali- eye by a foul ball hit by the Dodgers’ Wes State University baseball coach Bill fornia League of Prof’l Baseball, 65 Cal. Parker. Jackson…claims the teams, and Holowaty lost his job after “throwing a Rptr. 2d 105 (Ct. App. 1997) (fan hit by a the city of West Palm Beach, should have helmet into the bleachers during a 6-1 loss foul ball when his attention was diverted known that hazards existed in the area to Suffolk on March 25 at Eastern Sta- by minor league team’s mascot allowed to where he sat. He claims there was no dium.” Mike Anthony, Eastern’s Holowaty sue). adequate protection afforded by a wire Retires; Coach Was Suspended Earlier 19 Rountree, 296 P.3d at 378. One year screen located behind home plate. As a in the Week, HARTFORD COURANT, Apr. 27, later, the Indiana Supreme Court, relying result of this, he was exposed to possible 2013, at A1. Luckily, no one was hurt. See on Rountree, came to the same conclusion. danger from a batted ball.”). Jeff Jacobs, It’s Time for Holowaty to Call See South Shore Baseball, LLC v. DeJesus, 37 Jackson, 227 So. 2d at 63-64. It a Career, HARTFORD COURANT, Apr. 24, 11 N.E.3d 903 (Ind. 2014). 38 See News of Record — Final Civil 2013, at C1 (“By itself, it’s a stupid act. If 20 This statute was passed two months Judgments, PALM BEACH POST-TIMES, Mar. the helmet hit somebody, he could have after the expansion Arizona Diamond- 21, 1970, at B9 (“66-L-760F – C. Paul Jack- landed in court.”). backs began play. See 1998 Ariz. Legis. son vs. Atlanta Braves Inc. and City of West 50 Florida currently has two National Serv. Ch. 152 (S.B. 1399) (West). Palm Beach. Judgement for defendants.”). Hockey League teams (the Florida Pan- 21 This statute was passed two months 39 See Kathy Beasley, Milton Questions thers and the Tampa Bay Lightning) as after the expansion Colorado Rockies be- Liability of Parks, PENSACOLA NEWS J., Nov. well as numerous minor league, college, gan play. See 1993 Colo. Legis. Serv. S.B. 14, 1985, at 5B (“A jury awarded Charles high school, and youth hockey clubs. For 93-231 (West). Anthony Broxson $500,000 in September a further look at hockey in Florida, see, 22 This statute was passed three months after finding the city 70 percent negligent e.g., Florida Hockey Life magazine, http:// after Yates v. Chicago Nat’l League Ball and Broxson 30 percent negligent. Brox- floridahockeylife.com/. Club, Inc., 595 N.E.2d 570 (Ill. App. Ct. son sued the city in 1983 for injuries he 51 See Fedornak v. Miami Marlins, LP, 1992), which upheld an injured fan’s received when hit in the head by a softball 2015 WL 4086445 (Fla. Cir. Ct. Miami- suit for inadequate netting. The statute at Sanders Park in June 1980. He was left Dade Cnty.) (complaint dated June 12, was declared constitutional in Jasper v. 30 percent disabled.”). 2015). See also Jose Lambiet, Victim Chicago Nat’l League Ball Club, Inc., 722 40 Broxson, 514 So. 2d at 1118. of ‘Shark’ Bite at Marlins Park Seeks N.E.2d 731 (Ill. App. Ct. 1999). 41 Id. at 1119. Damages, MIAMI HERALD, Jan. 11, 2017, 23 This statute was passed four months 42 Id. at 1120. available at http://www.miamiherald. after Maisonave v. Newark Bears Prof’l 43 Rippe, 743 So. 2d at 62. com/entertainment/ent-columns-blogs/ Baseball Club, Inc., 881 A.2d 700 (N.J. 44 Id. at 64-65. Following the court’s rul- jose-lambiet/article125955379.html. 2005), which limited the baseball rule to ing, the city paid the Rippes the $100,000 52 See Fedornak, 2015 WL 4086445 (order injuries occurring in the stands. See N.J. statutory maximum. When the couple of dismissal dated Aug. 30, 2017). STAT. ANN. §2A:53A-43 (2017) (under “Sen- sought to collect the rest through a private ate Judiciary Committee Statement”). relief bill, a special master recommended 24 The Yankees trained in St. Petersburg an additional $15,000. See Upping the for nearly 40 years (1925-42, 1946-50, and Ante When Government is to Blame, PALM AUTHOR 1952-61). See JOSH PAHIGIAN, SPRING T RAIN- BEACH POST, Mar. 5, 2001, at 14A. Although ING HANDBOOK: A COMPREHENSIVE GUIDE TO the bill (S.B. 54) passed the Senate 35-2, ROBERT M. JARVIS GRAPEFRUIT AND CACTUS LEAGUE BALL- THE it died in the House of Representatives. is a professor of law at Nova PARKS FLORIDA LEGISLATURE — REGULAR SES- 11 (2d ed. 2013). Since 1996, they See Southeastern University have held camp in Tampa. Id. at 10-11. SION — 2001 SESSION: HISTORY OF SENATE 25 Woodford, 84 So. 2d at 26. BILLS 33-34, available at http://www. in Ft. Lauderdale, where 26 Id. leg.state.fl.us/data/session/2001/citator/ he teaches a course on 27 The court lifted the ban on such suits Final/senhist.pdf. baseball law. He is the co- two years later. See Hargrove v. Town of 45 Giordano v. Babe Ruth League, Inc., author (with Judge Louis H. Cocoa Beach, 96 So. 2d 130 (Fla. 1957). 2011 WL 11544183, at ¶16 (Fla. Cir. Ct. ^ĐŚŝīͿŽĨBaseball and the Law: Cases and 28 Woodford, 84 So. 2d at 26-27 (citing St. Johns Cnty. 2011) (second amended Materials;ĂƌŽůŝŶĂĐĂĚĞŵŝĐWƌĞƐƐϮϬϭϲͿ͘

40 THE FLORIDA BAR JOURNAL/JANUARY/FEBRUARY 2019