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Class Action Lawsuit Demands Major League Baseball Stadiums to Install More Protective Netting

By Daniel S. Greene

On June 5th, a 44-year old New England woman who was attending a Boston Red Sox game was struck in the head by a broken bat that had been swung by an Oakland Athletics player. The bat broke and flew into the stands. Her injuries were initially reported as life-threatening, but she was released from the hospital a few days later and her recovery is going "excellent" (http://www.foxsports.com/mlb/story/boston-red-sox-fenway-park-fan-hit-by-broken-bat-released-from-hospital-061215).

This incident was just the latest of many involving bats or balls flying into the stands and striking fans. According to a September 2014 study by Bloomberg News, approximately 1,750 attendees get hurt by balls flying into the stands at Major League Baseball (MLB) games, which adds up to about two out of every three games (http://www.bloomberg.com/news/articles/2014-09-09/baseball-caught-looking-as-fouls-injure-1750-fans-a-year). This safety issue has been a topic of conversation for a number of years, but it might have finally reached its zenith. On July 13th, a class action lawsuit was filed in Federal District Court in Northern California against MLB, claiming that the organization has not done enough to protect the fans from projectiles entering the stands. The suit does not seek any monetary relief, but states that MLB should be forced to add protective netting that stretches from foul pole to foul pole at all MLB ballparks, including the minor leagues (Read the entire Complaint: http://www.hbsslaw.com/Templates/media/files/case_pdfs/MLB/07-13-2015_Complaint_Payne_v__MLB_No__15-cv-3229.pdf).

The Complaint states how MLB and Commissioner Rob Manfred have "failed to follow the path of other professional sports in the United States and in other countries that have taken readily-available and relatively inexpensive steps to protect its spectators." It further notes that "fans of all ages, but often children, suffer horrific and preventable injuries, such as blindness, skull fractures, severe concussions and brain hemorrhages, when they are struck by a fast-moving ball or flying shrapnel from a shattered bat" (http://hardballtalk.nbcsports.com/2015/07/13/a-class-action-law-suit-was-filed-against-mlb-today-seeking-the-installation-of-more-netting/).

The lead plaintiff in the suit is Oakland Athletics (A's) season ticket holder Gail Payne, who sits in Section 211 at the O.co Coliseum. These seats are not field level and not protected by netting. Payne, an A's fan for nearly 50 years, purchased season tickets for the first time this year. The Complaint says that "she fears for her and her husband's safety and particularly for her daughter," and "she is constantly ducking and weaving to avoid getting hit by foul balls or shattered bats." It also notes that there are a lot of distractions in the stadium, including a large video screen, fan contests that involve cell phone use, and that this increases the risk of injury. However, she was not injured by any ball or bat that has flown into her section.

The Complaint also notes that the National Hockey League (NHL) has implemented protective netting behind each goal at every NHL arena after the extremely sad and unfortunate incident at a Columbus Blue Jackets game in 2002, where a deflected slapshot ricocheted into the stands, striking a 13-year old girl who died two days later (http://sports.yahoo.com/blogs/nhl-puck-daddy/ten-years-death-brittanie-cecil-recalling-backlash-over-214937256.html). It also highlights that baseball stadiums in Japan have protective screens from foul pole to foul pole (http://cdn.leanblog.org/wp-content/uploads/2015/06/Screen-Shot-2015-06-09-at-6.39.34-AM.png).

However, while it is true that attending a baseball game can be dangerous and that other leagues and sports have taken measures to limit this risk of injury and death, for some reason, I am not fully on board with the purpose behind this class action lawsuit. It must be noted that while Japanese stadiums have installed netting to protect its fans, there have still been incidents where fans have been injured. In August 2010, a woman attending a Nippon Ham Fighters game was hit in the face by a foul ball at the Sapporo Dome, which caused her to lose sight in her right eye. The team was forced to pay $350,000 in damages (http://sports.yahoo.com/news/japanese-baseball-team-ordered-pay-damages-foul-ball-070822903--mlb.html). In addition, during the 2014 season at the Nagoya Dome, home of the Chunichi Dragons, 115 fans requested in-house first aid after being struck by a ball during the 67 games played in the stadium that season (http://www.japantimes.co.jp/sports/2015/04/05/baseball/japanese-baseball/japanese-baseball-taking-cover-foul-ball-decision/#.VaRjH5NVikp).

Further, I feel that the event of a baseball being hit into the stands is slightly different from a hockey puck going into the seats. While both are definitely dangerous incidents, the game of baseball moves at a slower and more predictable pace. In baseball, you know when a ball is being pitched, whereas in hockey, it is more unpredictable when a shot is being taken, plus there's the high probability of the puck being deflected in many different directions. Further, I feel that a white ball is easier to see than a black rubber disc. That being said, I completely agree with the NHL's decision to put the netting behind the goals. You only need to watch warm-ups of a professional game to see how many pucks go up into that netting off of the crossbar and goalie, and how many shots get deflected up there during a game. Yes, sitting high up behind one of the goals may be an "annoying" seat for a game, but having the netting there is important and necessary, just as it is in baseball to have netting behind home plate. However, I'm having trouble seeing historic venues like Fenway Park and Wrigley Field lined by protective netting. One of the beauties of going to a baseball game is being a part of the action and interacting with the players. Further, issues regarding foul pop ups that come near the netting will arise, and no one knows what will be the height of the netting itself. If the netting will be high enough to protect Ms. Payne, then you might as well just play the game in a bubble.

Hey, I'm just a guy that has never been struck by a bat or ball, so what do I know? Decent point. In reality, my opinion doesn't really matter. However, the precedent set by the law does matter, which leads to the prediction that this lawsuit will not prevail.

One issue that crosses my mind is whether Ms. Payne has proper standing to bring suit. As stated by the United States Supreme Court in Lujan v. Defenders of Wildlife, a plaintiff must satisfy three elements to have standing to bring a lawsuit: "First, the plaintiff must have suffered an 'injury in fact' -- an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not 'conjectural' or 'hypothetical.' Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be "fairly . . . trace[able] to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court. Third, it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision'" (https://www.law.cornell.edu/supremecourt/text/504/555).

First of all, Ms. Payne has not suffered any injury due to a foul ball or broken bat. She merely states that there is a chance that she may get hurt because of the lack of protection. It could be difficult for any other season ticket holder who is not protected by netting to join the suit, if he or she has not sustained any injury. Further, while it is a reasonable hypothetical possibility that a ball could come into Ms. Payne's section and cause her some sort of injury, I find it extremely hard to believe that any broken bats will be making their way up to Section 211 (http://aviewfrommyseat.com/photo/12762/O.co+Coliseum/section-211/row-10/seat-4/), especially since O.co Coliseum is notorious for having the largest foul territory in all of baseball. From what I can tell, the only way that a broken bat is making it anywhere near Ms. Payne is if an Olympic javelin thrower takes it and throws it towards her. In addition, if Ms. Payne is truly that scared of bats and balls coming her way, she should change her seat. There are plenty.

The second, and probably most difficult issue to overcome for the plaintiffs, is the "Baseball Rule," which has traditionally held stadium owners to a limited duty of care in providing protection for their patrons. While the Baseball Rule, slightly differs from state to state, it "generally holds stadium owners to a lower duty of care for the safety of fans compared to the reasonable duty of care owed by most property owners under the common business-invitee rule. Consequently, the rule has allowed baseball owners to avoid liability for fan injuries" (Take Me Out To The Ballgame . . . But Bring A Helmet: Reforming The "Baseball Rule" In Light Of Recent Fan Injuries At Baseball Stadiums, 24. Marq. Sports L. Rev. 123, 124). This rule is similar to the assumption of risk defense to a negligence claim, besides that a stadium owner's "duty is 'limited' because it is less than the ordinary reasonable duty of care owed by landowners to business-invitees in other settings" (Id. at 127). Essentially, under this rule, a defendant will not be liable to a plaintiff if he or she knows "of a certain risk and voluntarily assumes or confronts the risk" (Id. at 128).

Here, it can be reasonably inferred that Ms. Payne was knowledgeable about the game, having been a fan for about 50 years. She knew that balls and bats occasionally came into the stands. It is also assumed that Ms. Payne understood the fact that the closer one sits to home plate, the higher the probability that objects would come into the stands. Anyone that has attended or watched a handful of baseball games would know that it is extremely common and expected that balls and the occasional bat would fly towards a spectator. The fact that this is an inherent risk to attending a baseball game makes this rule and defense hard to overcome for any plaintiff. Further, as noted by Professor Nathaniel Grow, "[b]ecause personal injury cases are primarily governed by state law, the federal court hearing the new class action suit will lack the power to overturn the state-level precedent absolving MLB teams of liability for injuries inflicted by foul balls or broken bats" (http://www.fangraphs.com/blogs/new-mlb-fan-safety-class-action-lawsuit-unlikely-to-succeed/).

As a life-long baseball fan who has attended numerous MLB and minor league games, I do understand Ms. Payne's and others' concerns. I have seen fans around me get cracked in the head by a line drive into the stands and get carried out on stretchers. This is why I am never on my phone or looking somewhere else in the stadium when the pitcher is going into his stretch. To me, it is common sense that the closer you sit to the action, the greater the risk you take of getting hit by a bat or ball, especially since warnings are announced throughout the stadium prior to the game and there are signs in stadiums telling patrons that balls and other objects can come into the crowd. I know that going to a sporting event is becoming more of an "entertainment" experience, but, call me old school or a purist, people should go to these events to watch the game. It would be unfair if a few scared patrons ruin the experience of going out to the ballpark for thousands of people, including those season ticket holders who could be a part of the class action lawsuit. You get to choose where you sit, and if you want to be in a "danger zone," you have to pay more to sit there. There are inherit risks in doing anything in life, and I feel terribly for the people who have been affected by sports spectator incidents, but that doesn't mean that over-reaching protections should be made. While protective measures, such as extending the netting from the beginning of each dugout to the beginning of the other dugout, might be voluntarily taken by the MLB at some point, I feel that the relief requested in this lawsuit is unlikely to occur.

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