by Bernard D. Nomberg, Partner, The Nomberg Law Firm
Fans go to major league baseball games to drink beer, eat hot dogs, and enjoy baseball with their friends. You don’t go to a baseball game thinking you will get injured. However, according to a report administered by Bloomberg News in 2014, 1,750 fans a year are hurt by foul balls. So when fans are injured at a baseball game, can they bring action against the MLB team? The league? According to the long standing tradition, commonly known as the “The Baseball Rule,” the league, as well as individual teams, are protected from being sued by fans, who are injured while attending the game. For 105 years, this rule has protected the MLB from defending countless lawsuits.
When fans choose to attend a baseball game, they are said to understand the risk that foul balls often fly into the stands, causing injuries. Under the assumption of the risk theory, a person who willingly participates in an inherently dangers activity assumes the risk of getting injured. This is the defense used by an owner of a baseball field. When a fan gets hit and chooses to bring suit, the league argues the fan was aware of the risk of injury and chose to attend the game anyways. Additionally, what most fans fail to recognize is that the back of their ticket includes a disclaimer and assumption of the risk statement. Ultimately, the disclaimer states that if you get hurt at the game, it is no one’s fault but your own. Unfortunately, this long standing rule will prevent a fan from being successful in a suit due to injuries suffered from a flying bat or ball.
Recently, the MLB created a new regulation on the netting behind home plate. The league recommended for the netting to extend to both ends of the dugouts. The purpose of this is to ensure fan safety in an area of heightened danger at the park. This regulation was first introduced after a fan accident in 2015. Surprisingly, most teams did not comply with this until the current 2018 season. It is important to note that this is simply recommended to the teams. Hardly any teams decided to take part in this when first suggested by the league. After a child got hit by a foul ball, in late 2017, more teams stated they would expand their netting. All major league teams announced they would have extended netting for the 2018 season. However, the teams are concerned about obstructing the view in some of their more expensive seats.
The new netting regulation has intrigued fans. They argue it impairs their viewing experience. The extended netting is intended to protect the fans who have little to no time to react when foul balls are hit. This netting is intended to be so protective it will prevent not only baseballs, but bats as well. However, the netting is designed to be thin and translucent so spectators don’t feel like the netting is destroying their view of the game. What many fans have not considered is that this will also benefit the players. They will not have to worry about what happens if they drill a ball over the dugout.
Does this netting fully protect the fans? Absolutely not. There is still room where fans are hazardously exposed to foul balls. Could the individual teams go beyond this regulation and implement more rules they think will provide further protection? Yes, but then the question becomes how much safety should the individual teams implement. Fan safety has improved, but legally, no one is protected better than the owners of the home team.
So how do you stay safe watching baseball? First and foremost, stay alert. Seems simple, but there are a countless number of people who continually have their head buried in their smart phone during a game. While trying to stay alert, it is always a good idea to bring sunglasses to the game. You never know when the sun will be right in your eyes and this could help you see the ball if it is coming your way. Additionally, several baseball fans have suffered tragic injuries from leaning over the railing to catch foul balls. Fans should use common sense when deciding whether they are physically able to safely catch a foul ball.
Ultimately, fans are aggrieved at the immunity “The Baseball Rule” provides. This rule was devised when baseball was played at a much slower pace. Does this long standing tradition deserve a change? Should fans be allowed to bring legal action for assuming the risk of attending a baseball game? Only time will tell. For now, we will sit back and see if the new netting regulation helps prevent spectator injuries.
Oh, almost forgot………GO BRAVES!
Bernard D. Nomberg is a life-long baseball fan. The Atlanta Braves of the 1980s kept him in a state of sadness but nevertheless, he remains a fan to this day. He has earned an AV rating from Martindale-Hubbell’s peer-review rating. He has been selected a Super Lawyer by Super Lawyers Magazine as well as a Top Lawyer by B-Metro Magazine. Bernard is the Chair of the Alabama State Bar’s Workers’ Compensation Section.