Taken out at the Ball Game: Spectator Safety and the Assumption of Risk Doctrine

October 13, 2015

accident, Negligence, Tort

By Ian Walker – Thompson Rivers University 3L JD Student

A long-time Oakland Athletics fan is suiting Major League Baseball in a proposed class-action lawsuit. The suit claims the league does too little to protect fans from fast-moving balls and splintered bats, particularly along the first- and third-base lines.

The lead plaintiff and season ticket holder, Gail Payne, feels vulnerable because her seats are not protected by netting and a fan beside her was injured by a foul ball. The lawsuit cited a 2014 study by Bloomberg News that says that 1,750 spectators are injured annually at MLB games.

The suit claims a number of factors have increased the risk to spectators, including pitchers who throw harder, bats that splinter more easily, the league-wide initiative to increase the speed of the game, and modern distractions like video monitors, in-arena Wi-Fi, and interactive apps on smartphones.

The suit also claims that MLB’s failure to extend protective netting is “particularly egregious” since it installed netting in front of dugouts and required first- and third-base coaches to wear helmets, while spectators just as close to the action are left with no protection.

The case brings to light an important doctrine of sports-related negligence cases: the assumption of risk doctrine. According to legal historian J. Gordon Hylton, the doctrine’s application to baseball can be traced to the 1913 Missouri Court of Appeals decision in Crane v. Kansas City Baseball & Exhibition Co. The case decided that because Crane had chosen to sit in an unprotected seat, he had assumed the risk of his injury from a foul ball. The court held, however, that the operator of the ballpark was not completely free from a duty of care to its patrons. The court applied the business visitor rule, holding that the defendants “were not insurers of the safety of spectators; but, being engaged in the business of providing a public entertainment for profit, they were bound to exercise reasonable care, i.e., care commensurate to the circumstances of the situation, to protect their patrons against injury.” This care did not extend to providing entirely protected seating, but only required providing some protected seating for those who desired it.

Hylton explains that the decision in Crane, despite its origins in a fairly obscure court, has been followed in almost all subsequent foul ball injury cases and its principles continue to govern today. The decision seeks to obtain a balance between fan safety and fan entertainment. Because owners do not have a duty to protect all seating with protective netting or to warn spectators of the risks of foul balls, fans choosing to sit in unprotected areas in order to get closer to the action are held to have taken on the risk of any injury related to sitting in such seats. To most fans, the entertainment value has typically outweighed the (relatively small) risk of injury. This recent class action suit, however, seeks to modernize the issues and shift the entertainment-safety balance by expanding the park operator’s duty of care.

Many such cases have come forth and have been dismissed on the basis of the assumption of risk doctrine, and perhaps it is likely this latest one will suffer the same fate. However, the case raises the issue of whether an obscure decision from 1913 should continue to govern spectator injury cases in our modern world. The class action suit’s mention of modern realities – stronger players, faster gameplay, technological distractions – highlights legitimate and important differences between the fan experience now and what it would have been during Crane’s time. With such differences in mind, it may be an appropriate time to reconsider the doctrine of assumption of risk and its application to the modern spectator experience.

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