Friday, April 29, 2011
Assumption of the risk at the ballpark?
I have commented before on the fact that defendants usually can use the defense of assumption of the risk to avoid liability for injuries suffered by spectators in baseball games. The typical cases invlove injuries caused by foul balls and bats flying into the stands (see here), but also, more recently, by flying hot dogs (see here, here and here). I have also commented on cases against aluminum bat manufacturers for injuries caused by batted balls based on claims that those bats generate much higher ball speeds than wood bats (see here and here). I am writing about this now because the Wall Street Journal law blog just published a comment on a case in New York that, as is typical in these types of cases, has dismissed a complaint against the New York Mets. As the article notes, "In an “ordinary” situation, there’s nothing all that surprising about the dismissal of such a case." But the article goes on to point out that not all cases about injuries caused by bats are alike precisely because not all bats are alike. The difference is that "[o]nce upon a time, nearly all major leaguers used bats made from Northern Ash. But in recent years, they’ve started using maple bats, which are much more prone to breaking (and sometimes shattering) than are ash bats." Is it time to start reconsidering the use of the assumption of the risk defense? Should cases be decided on a case by case basis now?