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David-ortiz-batters-boxAs a lifelong avid baseball fan, during my youth, I always brought my glove to the ball park in hopes of making a great catch of a foul ball and having the fans in the stadium cheer as I displayed the ball! Alas, as of yet, I have not had that opportunity. Unfortunately, however, too many baseball fans’ dream of catching a foul ball has become a nightmare due to injuries sustained by being hit by foul balls or even errant broken bats.

The rule for fans attending baseball games has always been that each fan recognizes and understands the risk involved in attending a baseball game, and they therefore assume all such risks incidental to the playing of the game, warmups, etc. Every ticket recites the terms and conditions of attendance and assumption of risk in very fine print, which many of us have never read in our excitement to attend the game.

Recently, however, the validity and scope of the “assumption of risk policy” is being challenged. A recent New York Times’ article entitled “Danger at the Ball Park”, by Joe Nocera, appearing in the Saturday, November 21, 2015, edition of Sports Saturday, provides details on two pending court cases.

The first case involves a New York Yankee fan who attended a game on a rainy day in 2011.
While many teams have policies prohibiting fans from opening umbrellas during the game, the Yankee’s policy did not forbid the use of umbrellas, but merely stated that umbrellas were permitted so long as they did not interfere with other guests enjoyment of the game.

The fan was struck by a foul ball, sustaining significant injuries to his face and eye socket.

Initially, Yankee management agreed to pay all medical fees not covered by the fan’s medical insurance. However, that offer was rescinded after discussing the issue with their legal representatives.

The fan, therefore, initiated a lawsuit alleging that despite the accepted assumption of risk doctrine, that in this instance, in allowing open umbrellas during the game, the Yankee’s negligently increased the danger proposed by the game of baseball.

The Yankees have filed a motion for summary judgment citing the assumption of risk policy, and that motion is currently pending before the court.

Additionally, a class action suit has been filed on behalf of all season ticket holders against Major League Baseball and its Commissioner, Rob Mannfred. This lawsuit alleges that MLB and Mannfred have failed to uphold their duties to enact safety measures against the dangers of foul balls and broken bats.

According to Mr. Nocera’s article, the plaintiffs claim that the increased size and strength of modern day players and the increased distractions in the stadium initiated by the ball clubs (i.e. Jumbotron scoreboards, promotions, videos, trivia, etc.), have made the game more dangerous.

Anyone attending a baseball game today can attest to these distractions, as so many people are watching kiss-cam, taking selfies or photos and texting them to their friends and family to let them know they are at the ball game, and watching instant replays on their phone via one of the live stream services, etc.

There has been increased pressure on major league baseball parks to install screening similar to that behind home plate along the first and third baselines to further protect fans. This has been met with resistance by MLB, citing the decreased enjoyment of the fans’ ability to watch the game. However, recently, possibly in response to these lawsuits, it appears that this issue is being reconsidered, and indeed, for the 2016 season, there may be some additional safety measures proposed.

Hopefully, MLB can install some legitimate measures that will allow all of us to continue to enjoy watching this marvelous sport while providing greater protection to the real and legitimate dangers faced by those who attend the game.


John C. Cappello, Jacobowitz and Gubits, LLPJohn C. Cappello is a partner practicing Land Use/Environmental and Municipal Law. He can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.

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