Debate about safety netting around baseball parks continues

One of the more talked about themes during this baseball season is the increased amount of home runs (and the speculation that it has something to do with the way baseballs are manufactured).  Another continues to be the debate about whether baseball parks should extend the protective netting along the baselines.

If you are a baseball fan, you know that baseball parks offer safety netting to protect fans close to home filed from foul balls, errant throws and bats flying into the stands. Traditionally, the netting extends from just about half way to first base to about half way to third base.  

Yet, last year, in response to a number of incidents in which spectators were seriously hurt by foul balls along the baselines beyond the ends of protective netting some ballparks decided to extend the netting further down along the baselines.

Unfortunately, this season has already seen several such accidents and the debate about the netting has reignited.  Here in Chicago, at least two star Cubs players (Javier Baez and Kris Bryant) have called for the use of more netting.  

As you probably know, spectators usually do not have a remedy in tort available because of the so called "baseball rule" which is essentially a derivation of the notion of assumption of the risk.  I have argued the use of the rule is inconsistent with general principles of tort law, but it continues to be applied in many jurisdictions.  (Idaho is one which has refused to adopt it. See here.)   For some of my comments on the rule in general, go here, here and here.  For my posts on this and other topics related to baseball go here.

NPR recently posted a short radio segment on the issue.  You can listen to it below, or you can read the full story here.  It includes a video of one of the recent incidents (I also included it below).  It does NOT show the fan (in this case a young child) getting hit.  What it shows is the reaction of the players on the field.  Notice the reaction of the catcher the moment the ball goes into the stands; while the batter needed to be consoled by teammates and his manager.

Injured Spectator vs The Chicago Cubs; Will This Be the Case That Establishes a New Rule? -- UPDATED

October 17, 2017
Readers of this blog probably saw the news that a baseball fan has sued the Chicago Cubs seeking compensation for the loss of sight in his left eye after he was hit by a foul ball during a Cubs game earlier this year.  This question has been litigated many times in many jurisdictions and, as it stands right now, the law favors baseball stadium owners.

In most cases, the discussion of the courts has focused on either whether the defendants have a duty to the spectator or whether the spectator assumed the risk of injury by choosing to sit close to the field.  Often, whether the issue is defined as the former or the latter, court and commentary refer to the analysis as one involving "the baseball rule," which is really a reference to the result of the application of the analysis. The case against the Cubs is different, however, because in Illinois, there is a specific statute that limits the possible liability of baseball stadium owners.

I wrote a short comment on this a few days ago in The John Marshall Law School Law Review blog.  You can read it here.

UPDATE (3-21-18):  Earlier this month, the court dismissed the claim against the Cubs but allowed the case to proceed against Major League Baseball.  The Chicago Daily Bulletin has the story.

Court upholds the so-called "baseball rule" in case against New York Yankees; rules no liability for injury caused by foul ball

Not too long ago, I posted a story about a recently filed claim against the Chicago Cubs by a fan injured by a foul ball.  The claim will not be an easy one to support given the current law in Illinois but also the long standing trend in the rest of the United States.  This trend, which typically holds the defendants only have a limited duty to a relatively small number of spectators, was reaffirmed recently in New York in a case that had been filed against the New York Yankees.  In that case, a state appeals court in Manhattan ruled that the baseball team was not responsible for a fan's foul ball-related injuries at a 2011 game.  Bob Van Voris, a legal reporter for Bloomberg News, discusses the story here (8 minute audio). 

It sounds like the plaintiff will appeal the decision.  If he does, it is possible the state's highest court may reconsider the validity of the baseball rule.  Stay tuned.

Play Ball! Some thoughts on torts and baseball

Baseball fans are eagerly awaiting the beginning of a new season.  But, with a new season, we also get the renewed debate regarding safety at the ballpark.  Just a few days ago, at a spring training game, the quick reflexes of an adult saved a child from serious injury (or worse) when a bat flew into the stands.

That child was lucky. Really lucky.  According to one source about 1,750 people get hurt during major league baseball games primarily from foul balls and broken bats.  (Other common claims include injuries caused by team mascots.)  Many suffer severe injuries, yet few have been able to recover compensation.

One important reason for this is that many of the cases have been decided using a confused analysis based on the argument that people (both participants and spectators) assume the “inherent risks involved in the game,” often referred to by the unfortunate term “primary assumption of the risk.”  Yet, the analysis in most of those cases is not particularly coherent and I continue to be amazed at the fact that after so many years of common law so many courts are still unclear about the concept of assumption of the risk as it relates to sports and recreational activities.

Take the cases involving claims against bat manufacturers for injuries caused by aluminum bats, for example.

In the past few years there have been a number of cases imposing liability on aluminum bat manufacturers because the ball travels off them at a much higher rate of speed putting fielders are at a higher risk of injury.  In response, you often hear criticism from defendants and others that are quick to quote the notion that players assume the inherent risks of the game.  Using the same argument, some take the rhetoric even further and use it to attack the tort law system itself claiming that the lawsuits are just another example of plaintiffs’ lawyers bringing frivolous claims. 

I think those arguments miss the point.  Granted; risk, danger and injuries are a part of life, let alone of baseball.  However, tort law is one of the mechanisms we can use to regulate the level of risk we are willing to live with.  You can’t play baseball unless the hitters use a bat. But it does not have to be an aluminum bat. Why expose the players to more danger if there is a safer alternative? The alternative is not perfect and it won’t eliminate all the risk, but it is safer.  

The point is that litigation often helps society define the limits of the acceptable level of risk we are willing to take for any given activity.  We have accepted the risks of baseball when played with hardballs and solid wood bats.  But as we start our kids playing the game earlier and earlier we want them to be as safe as possible while still playing the game.  That is why we now require better helmets and protection.  That is why Little League Baseball has banned the use of dangerous aluminum bats and regulates those that are permitted for competition.

Now, some argue the resulting injuries would be the same even if the bats are made of wood. I have no expertise on that question, but I can concede that it may be true in some cases.  On the other hand, I am sure it is not true in all cases, and it is those cases that matter.

The risks inherent to baseball have changed over the years and it is perfectly reasonable to find that our tolerance for more risks has a limit.

The cases involving spectators are even more problematic. 

In these cases, many courts refer to what they often call “the baseball rule” according to which baseball park operators are excused from liability based on the notion that spectators assume the risk of being hit by foul balls or bats that fly into the stands.  According to the argument, these are risks "inherent to the game."  Many jurisdictions do follow this notion, usually again referring to it as the confusing concept of “primary assumption of the risk.”

The confusion starts because it is often said that spectators assume the risk of getting hit by foul balls at baseball games and that, thus, those in charge of the park do not have a duty to protect them.  Neither of the two parts of this statement is entirely correct.

First, it is well known that all baseball parks have installed some form of "netting" to protect the members of the public who sit behind home plate (and some distance between there and first and third bases).  Thus, the park operators do have a duty to those spectators.

Second, the statement confuses the concept of duty – which is an element of the cause of action’s prima facie case – and assumption of the risk – which is an affirmative defense that does not challenge an element of the cause of action’s prima facie case.

Assumption of the risk is a defense based on an evaluation of the plaintiff’s conduct in order to determine if he or she voluntarily decided to undertake a known risk.  However, the so–called “primary assumption of the risk” doctrine has nothing to do with an evaluation of the plaintiff’s conduct.  Primary assumption of the risk is a policy question that asks the court to decide whether to impose a duty on the defendant to act to protect others from certain risks.  In other words, the application of the concept of primary assumption of the risk is simply another way of asking whether the defendant owes a duty to the plaintiff. 

When applied to baseball, the policy question should be answered by saying that an operator of a baseball stadium has a duty to protect the spectators sitting in the most dangerous part of the stadium and to exercise ordinary care to prevent unreasonable, foreseeable risks of harm to others.  This means that a defendant can’t claim a plaintiff assumed a risk created by the defendant’s own negligence.  This approach will yield good results not only in spectator injury cases but also in other sports cases. 

What makes this issue more interesting this year is that given last season's many gruesome incidents in which fans were struck by balls and shattered bats, Major League Baseball issued a recommendation for all 30 clubs to extend the protective netting farther along the baselines to first and third.  (See NYT article.)

This sounds like a good decision, but, as explained in a New York Times article, the new MLB policy can't be more lame.

Under the new policy, teams are “encouraged” to extend the netting behind home plate a mere 70 feet or so down the foul lines, to the “near ends of both dugouts” — that is, the end of the dugout closest to home plate. Note that this is not a mandate but merely a recommendation. It also calls on teams to “explore ways to educate their fans” on the inherent dangers of sitting close to the action and the importance of paying attention. And it wants teams and ticket vendors to make clear to the fans which seats are protected when they are buying tickets.

Thus the new "policy" does not require the teams to do anything and most of it is to encourage them to do what they can so they can later claim "assumption of the risk" by arguing that the fans were warned about the risk.

Some teams have announced they will provide more protection to fans, but some will not, and accidents will continue to happen.  Then, as it happened in the NHL in 2002, someone - perhaps a child - will get killed and the league will change its policy.  In 2002, the N.H.L. mandated safety netting at its arenas after a girl was struck in the head by a puck and died from her injuries.  

It does not make any sense for MLB to wait until something like this happens.  And if you don't think it will, take another look at the photos of that recent game.  What do you think would have happened had the adult not extended the arm in front of the child's face?  (Read about them here.)

For more commentary on this issue and a discussion of ongoing litigation against the New York Yankees take a look at this article.

Jury finds for the defendant Kansas City Royals in the case for injury caused by mascot

Long time readers of this blog might remember the case filed against the Kansas City Royals seeking compensation for an injury caused by a hot dog thrown by the team's mascot into the crowd.  My first reports on the case are here and here (including links to comments on the claim and to the original complaint).  My most recent posts on it are here (with a video) and here.

Eventually, the case went to trial and the jury found for the defendant. However, the Missouri Court of Appeals reversed the judgment and reinstated the case against the Kansas City Royals. Then, back in June 2014, the Missouri Supreme Court ruled that being hit in the eye with a flying hot dog is not an inherent risks of watching a baseball game and that, therefore, the  trial judge wrongly asked the jury to consider the defense of assumption of the risk.

The case went back to trial and just recently the jury found for the defendant.  The Kansas City Star has the story here.

More comments on the Missouri Supreme Court decision on assumption of the risk while watching a baseball game

Yesterday I reported on the Missouri Supreme Court's decision in the case against the Kansas City Royals for an injury caused by its mascot during a game.  The most important issue in the case was whether the plaintiff assumed the risk of injury by attending the game.  The court found that getting hit with a hot dog - as opposed to a baseball or a bat - thrown into the stands is not an inherent risk of watching baseball games.

Today, Prof. Jonathan Turley has a comment on the case in his website here.  The TortsProf blog also has a note here.

Missouri Supreme Court decides flying hot dog case; holds that being hit by a flying hot dog isn’t an inherent risk of watching baseball

Two years ago I started following a case filed against the Kansas City Royals seeking compensation for an injury caused by a hot dog shot out of a cannon by the team's mascot into the crowd.  The hot dog hit a spectator in the face causing an injury to his eye.  My first reports on the case are here and here (including links to comments on the claim and to the original complaint).

Eventually, the case went to trial and the jury found for the defendant. However, the Missouri Court of Appeals reversed the judgment and reinstated the case against the Kansas City Royals. The court reasoned that a plaintiff’s voluntary participation in an activity serves as consent to the known, inherent, risks of the activity itself and relieves the defendant of the duty to protect the plaintiff from those harms.

Then, back in December 2013, the Missouri Supreme Court took the case and it finally issued its decision today ruling that being hit in the eye with a flying hot dog is not an inherent risks of watching a baseball game and that, therefore, the  trial judge wrongly asked the jury to consider the defense of assumption of the risk.  For the reasons explained in my previous posts on the case, I think this is the correct decision.  You can read the opinion here.  Here are some links to more information about the case.

In one of my earlier posts on the case I copied this video of the team mascot launching hot dogs. The woman taking the video yells at the mascot for a hot dog when the mascot is throwing them by hand, but listen carefully how, after watching the laucher send a hot dog off in the air, she sounds a little nervous about the possibility of the mascot sending one her way. She says "no, no, no. "We just want you to "toss" us a hot dog," and then seems to be telling her friend that "we are too close"...


 

Case against Kansas City Royals for injury caused by mascot is now before the Missouri Supreme Court

Long time readers of this blog might remember my posts on a case filed back in 2010 by a spectator at a Kansas City Royals baseball game who was struck in the eye by a hot dog thrown by the team's mascot.  As I said in my original post on the case, it is often stated that spectators at a baseball game assume the risk of getting hit by foul balls.  Technically speaking, this is not necessarily correct since the issue in those cases is not really a question of assumption of the risk, but rather one of whether the defendant owes a duty to the plaintiff... but that is another story.  The case generated much commentary (see here for links).

Eventually, the case went to trial and the jury found for the defendant.  I commented on the verdict here, where I also posted a video of the mascot throwing hot dogs.  You can judge the conduct for yourself.

The jury's verdict, however, was recently reversed and, as I said in my post on the opinion, that was the correct decision.  (In that post, I have a link to the opinion itself, if you want to take a look at it.)  As opposed to many of the other cases on the subject of sports injuries, the court in this case does a better job of explaining the issue.

What is interesting is that the question in the hot dog tossing case is whether there should be a duty to protect spectators from risks involved in watching baseball games other than the risks inherent to the game of baseball.  As the court suggests, the answer at this point is "maybe" if the risk is inherent to the game but probably no, if the risk is not inherent and, more so, if it is created by the negligence of the defendant himself.

Do the risks created by a mascot throwing promotional items arise from the inherent nature of a baseball game?  The question is now before the Missouri Supreme Court, which heard oral arguments last month.  Here is a comment on the argument.

Baseball torts

Today is opening day for Major League Baseball. Picking up on that theme, and being the torts geek that I am, I decided to participate in the TortsProf blog with a post on baseball torts. You can read it here.

 

Idaho Supreme Court refuses to adopt "baseball rule"

The Idaho Supreme Court recently declined to adopt the so-called "baseball rule” which is commonly used to release baseball park operators from liability based on the notion that spectators assume the risk of being hit by foul balls. The court reached the correct result, but it could have done more to clarify what has become a confusing area of the law.
It is often said that spectators assume the risk of getting hit by foul balls at baseball games and that, thus, those in charge of the park do not have a duty to protect them.  Neither of the two parts of this statement is entirely correct. The problem is that the statement confuses the concept of duty – which is an element of the cause of action’s prima facie case – and assumption of the risk – which is an affirmative defense. The so–called “primary assumption of the risk” is simply another way of asking whether the defendant owes a duty to the plaintiff. 

When applied to baseball, the policy question should be answered the way the court in Idaho answered it.   An operator of a baseball stadium has a duty to protect the spectators sitting in the most dangerous part of the stadium and to exercise ordinary care to prevent unreasonable, foreseeable risks of harm to others.  This means that a defendant can’t claim a plaintiff assumed a risk created by the defendant’s own negligence.

This approach will yield good results not only in spectator injury cases but also in other sports cases. 

Missouri Court of Appeals interprets notion of primary assumption of the risk correctly and reinstates case against KC Royals (and their mascot)

Almost two years ago, I began to follow an interesting case filed against the Kansas City Royals seeking compensation for injuries suffered when a spectator at a KC Royals baseball game was hit by a flying hot dog tossed by the team's mascot.  For my original posts on the case go here and here.  You can see a video of the mascot shooting hot dogs here, although, the claim in the case referred to a hand tossed hot dog.

In March of last year the jury reached a verdict on the case. After deliberating for about an hour, the jury found in favor of the team.  See here.

But that is not the end of the story.  This week, the  Missouri Court of Appeals reversed the judgment and reinstated the case against the Kansas City Royals. The case is Coomer v. Kansas City Royals, and you can read the opinion here.  Go here, here and here for comments on the decision.

The case revolves around the notion of "primary assumption of the risk" which I have criticized many times before (see, here and here for example).

However, as opposed to many of the other cases I have criticized on the subject, the court in this case does a better job of explaining the issue.

Primary implied assumption of risk operates to negate the negligence element of duty. . . . The plaintiff’s voluntary participation in the activity serves as consent to the known, inherent, risks of the activity and relieves the defendant of the duty to protect the plaintiff from those harms. . . . Because the defendant has no duty to protect against those inherent risks, he cannot be found negligent for causing the plaintiff injury. . . . The risks assumed, however, “are not those created by a defendant’s negligence but rather by the nature of the activity itself.” . . .

The bottom line is that primary assumption of the risk has nothing to do with assumption of the risk.  It has nothing to do with an evaluation of the plaintiff's conduct in order to determine if he/she voluntarily decided to undertake a known risk.  Primary assumption of the risk is a policy question that asks the court to decide whether to impose a duty on the defendant to act to protect others from certain risks.  

It is often said that spectators assume the risk of getting hit by foul balls at baseball games and that, thus, those in charge of the game do not have a duty to protect them.  Neither of the two parts of this statement is entirely correct though, since the spectators who sit behind home plate (and half way to first and third bases) do not assume that risk and the defendants do have a duty to protect them.

So, in the hot dog tossing case, the question becomes whether there should be a duty to protect spectators from other risks involved in watching baseball games.  As the court suggests, the answer at this point is "maybe" if the risk is inherent to the game but probably no if the risk is not inherent and, more so, if it is created by the negligence of the defendant himself.  As the court explains,

The issue is thus whether the risk Mr. Coomer encountered was one which inhered in the game, or one which would be created by the defendant’s negligence. . . .  Mr. Coomer argues that the trial court erred in submitting the defense to the jury because “the risks created by a mascot throwing promotional items do not arise from the inherent nature of a baseball game.” On these facts, we agree.

 I do too.

New case on the possible liability of an aluminum bat manufacturer

My blog friends over at Abnormal Use are reporting on yet another little league baseball bat case today.  For a change, though, this one was decided in favor of the manufacturer.  I posted a comment on their website so you can go there and read their post and my comment.  Let me just add one point here.  According to the story, the judge who decided the case wrote that "the experts who testify about the supposedly dangerous characteristics of aluminum bats are talking about a relative scale. Fewer players would be injured if Little Leaguers used foam-rubber bats, but it doesn’t reasonably follow that manufacturers of wooden bats would then be liable for imparting “increased exit speed” to the ball."

It seems to me this view misses the point.  One basic underlying theory of tort law is that we can't make our society entirely safe.  Risk, danger and injuries are a part of life.  Tort law is one of many mechanisms we can use to regulate the level of risk we are willing to accept in our lives, not to eliminate it.  We can't eliminate all risk, and even if we could, we would not want to because that would mean abandoning many of the convenient things we use and enjoy - like cars, for example.  And baseball.  Yes, it is true that fewer players would get injured if we played baseball with rubber bats and whiffle balls, but then that would not be baseball.  The point is that we have accepted the risks of baseball when played with hardballs and solid wood bats.  But as we start our kids playing the game earlier and earlier we want them to be as safe as possible while still playing the game.  That is why we now require better helmets and protection and other things.  That is why Little League baseball (the official organization) has banned the use of dangerous aluminum bats and regulates those that are permitted for competition. 

The fact that we have used the solid wood bat as a benchmark for one of the risks involved in baseball makes it easier - not more difficult, as the judge suggests - to explain the level of risk involved and to justify recognizing a cause of action the result of which - at least in theory - may work to help regulate that risk in the future.

For my most recent posts on baseball bat safety go here and here.

Little league baseball bats

A few days ago I posted a note about a recent case for injuries caused by a ball hit with an aluminum bat during a little league baseball game which settled for $14.5 million.  (See here.)  Today, as I watched the Little League World Series with my 8 year old son on TV, I noticed the bats did not make that metallic high pitched sound that aluminum bats typically make.  So, I went on line and did a quick search - thinking maybe they are not using metal bats anymore...  And I did find that the bats are, in fact, different now.  They are still not using wood bats, but there are more regulations in place.  Here is a link to the Little League page on bat rules.  Not only have the rules changed, I was surprised to see this statement:  "For the 2011 season, a moratorium on the use of baseball bats with composite materials in the barrel was enacted by Little League. The moratorium was enacted because it was discovered, through laboratory testing, that a significant number of these bats could exceed the standard that is printed on the bat – after the bat was broken in."

Case for injury caused by aluminum bat in little league game settles for $14.5 million

Sports Illustrated is reporting today that a new case for injuries caused by a ball hit with an aluminum bat during a little league baseball game has settled for $14.5 million.  At the time of the accident (in 2006), the plaintiff was 12 years old.  He was hit in the chest by a line drive while standing on the pitcher's mound. Seconds later he went into cardiac arrest and he now has serious brain injuries.  He can't perform daily life functions and the money will be used to care for him for the rest of his life.  For more on this story (and more links) go to Sports Illustrated and Injured.

This is not the first time I have commented on cases like this one.  (See here and here, for example)  Back in 2009, I posted the following comment when news of a similar case were reported and my views have not changed since:

I remember having read and heard debates about the safety of aluminum bats used in baseball at the high school and college levels (they are not allowed in the professional leagues). I remember reports saying that the bats provide a tremendous level of force to the ball which then travels at a much higher rate of speed toward the fielders. Under such circumstances, players in the infield, particularly pitchers and third basemen are very vulnerable because of the very limited time they would have to react to a sharply hit line drive.

Yesterday, I saw in several sources around the internet a story that a jury in Montana imposed liability on Louisville Slugger, the baseball bat manufacturer, for failing to provide adequate warnings about the dangers posed by aluminum bats and awarded $850,000 to the family of an 18 year old who died when hit with a baseball while pitching in a game in 2003. Go here for the full story and some interesting comments criticizing the decision. This site has the story and links to other related stories. More versions of the story are linked here.

The arguments against this type of verdict are not new: that kid assumed the risk, that a warning would not have made a difference, that plaintiffs lawyers are just using the system to bring frivolous lawsuits, that cases like these result in ridiculous warnings on all products, etc etc.

I think these arguments miss the point. First of all, no one has ever argued that a warning makes a product safer. A warning just provides information that the consumer can then use to make decisions on how to protect him/herself given the risks involved in using the product.

Second, it is true that there are some products (and some activities) that are inherently dangerous, but this does not mean that everyone understands the level of risk they pose.

 Finally, and I think most importantly in this case, sometimes we need to ask whether a product is so dangerous that it should not be used at all, period. I understand you can't play baseball unless the hitters use a bat...duh! But it does not have to be an aluminum bat! Why expose the players to more danger if there is a safer alternative? The alternative is not perfect and it won't eliminate all the risk, but it is safer.

Now, some argue the result would have been the same even if the bat had been made of wood. I have no expertise on that question, but I can concede that may be true in some cases. I am sure it is not true in all cases, though, and it is those cases that matter.

Also, if it is true that the death in this case would have happened even if the bat used had been a wooden bat, I wonder how come the defendant did not get the case dismissed early on arguing that the plaintiff could not establish cause in fact. Did they not have an expert ready to testify? Aluminum bats are probably ok for very little kids who do not generate the bat swing speed necessary to make much of a difference (and for many of whom a wood bat would be too heavy), but as the kids get bigger and stronger the leagues should move to wooden bats.

Today in baseball - and music - history

This post has nothing to do with torts or professional responsibility, but it's my blog, so there!

Did you know today is the anniversary of the very first time a singer sang a personalized version of the national anthem before a sporting event?

On October 7, 1968 Puerto Rican singer/guitarist Jose Feliciano stunned the crowd at Tiger Stadium in Detroit when he sang a non traditional rendition of the national anthem before Game 5 of the World Series between Detroit and St. Louis.  The reaction was not good.  He was booed, criticized, and many radio stations stopped playing his music.  Interestingly, the Tigers won the game and the final two to win the series in seven games.

I am not a big fan of the way many - indeed, most - singers try to change the national anthem these days, but there are a few renditions that I like.  Feliciano's is one of them.  Another one is Marvin Gaye's version before the NBA All-Star game in 1983.

Ironically, Marvin Gaye sang the national anthem in Detroit the day before Feliciano did.  Supposedly, Ernie Harwell specifically asked him to do a traditional rendition of the anthem.  I guess he expected Gaye to try something different.  I don't know if he told Feliciano the same thing...

Also ironically, after Harwell passed away last year, the Tigers had Feliciano sing the exact same version of the anthem before a game to honor his memory.

You can listen to Jose Feliciano's 1968 national anthem here.

You can listen to Marvin Gaye's version in 1968 here and his 1983 version here.

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?

Team mascot (and team) are not liable for hitting fan with hot dog

Just about a year ago I reported on a lawsuit that argued that a hot dog thrown by the Kansas City Royal's mascot struck the plaintiff and detached his retina. The defendants argued the defense of assumption of the risk. (Go here for my original post and here and here for comments on the claim). As you probably know, it is often stated that spectators at a baseball game assume the risk of getting hit by foul balls. (Technically speaking, this is not necessarily correct since the issue is those cases is not really a question of assumption of the risk, but that is another story).

If we assume this is the starting point of the discusion, though, the issue in the case, at least in part, was whether the fans also assume the risk of getting hit by other flying objects not related (or necessary) to the game itself, like between innings entertainment.

 Now comes news that a jury reached a verdict on the case. After deliberating for about an hour, the jury found in favor of the team. For more on the case go here and here.

 Check out this video of the team mascot launching hot dogs (courtesy of Prof. Jonathan Turley). The woman taking the video yells at the mascot for a hot dog when the mascot is throwing them by hand, but listen carefully how, after watching the laucher send a hot dog off in the air, she sounds a little nervous about the possibility of the mascot sending one her way. She says "no, no, no. "We just want you to "toss" us a hot dog," and then seems to be telling her friend that "we are too close"...


 

Boy left deaf in one ear by line drive sues bat manufacturer

The Chicago Sun Times recently published a story on a lawsuit filed against a baseball bat manufacturer by a boy who was left deaf in one ear after getting hit by a line drive. Go here for the story. The issue in a case like this is not new. Back in October of 2009 I published a comment on a similar case.  Here is my comment from back then.

Comment on the claim for damages caused by flying hotdog at the ballpark

Last month I posted a note about a recently filed claim against the Kansas City Royals for damages caused when its "mascot" (an unnamed performer in a lion suit) threw hotdogs at the crowd. See here. I don't think the case is frivolous and I also don't think that the defense of assumption of the risk should apply. Today Prof. Michael McCann (Vermont Law School) posted a short comment on the case at TortsProf Blog (available here and it includes a link to the original complaint). In his comment, Prof. McCann essentially argues that the notion that spectators assume the risk of injury by foul balls during baseball games should not apply to the case because it is premised on dangers from actual baseball play, as opposed to between innings entertainment. He also argues that using the defense of assumption of the risk is questionable because fans should not necessarily be obligated to pay attention when the game isn’t being played.

Assumption of the risk at the ballpark?

It is often stated that spectators at a baseball game assume the risk of getting hit by foul balls. (Technically speaking, this is not necessarily correct since the issue is those cases is not really a question of assumption of the risk, but that is another story). In any case, a case filed recently now asks whether a spectator also assumes the risk of getting hit by hot dogs thrown into the crowd. The lawsuit claims that a hot dog thrown by the Kansas City Royal's mascot struck the plaintiff and detached his retina. Go here for the full story in the Wall Street Journal Blog, here for the story in the Kansas City Star and here for a comment in the blog Lowering the Bar.