James Bond is not the only one with a License to Kill. Professional sports teams sell season ticket packages, often in the form of a seat license to a specific seat in the franchise stadium for every regular season game played in the stadium. The license/ticket typically gives the purchaser a restricted interest in a single stadium seat. The ticket contains certain conditions and with specific disclaimers in fine print on the back of the ticket, including an acknowledgment that the ticket owner assumes all risk and danger incidental to the sport they are watching. Baseball fans injured by line drive foul balls, overthrown balls, and flying bats are finding that this fine print is giving the teams and Major League Baseball (“MLB”) immunity from injuries that could be avoided.
Nearly 150 million people attend professional sports annually in America, and MLB’s total attendance (74.9 million) is actually greater than the other four major sports leagues combined (65.9 million). A recent study found that during 127 National Hockey League (“NHL”) games, pucks injured 122 people, 90 of which required stitches, and 57 required transport to a hospital emergency room. D. Milzman, The Puck Stops Here: Spectator Injuries, A Real Risk Watching Hockey Games, ANNALS OF EMERGENCY MEDICINE, Oct. 2000. A study in 2003 found that injuries to spectators at MLB games from foul balls alone occur at a rate of 35.1 injuries per million spectator visits. A.M. Milstein, et al., Variables Influencing Medical Usage Rates, Injury Patterns, and Levels of Care for Mass Gatherings, PREHOSPITAL DISASTER MED., 2003. It’s been nearly 15 years since the NHL mandated safety netting in every hockey arena in order to protect fans from vulcanized rubber pucks flying into the stands in excess of 100 miles per hour. But, it took the death of a 13-year-old fan for them to do so. Brittanie Cecil was struck in the head by a hockey puck on March 16, 2002, while attending a Columbus Blue Jackets NHL hockey game at Nationwide Arena in Columbus, Ohio. She later died at Children’s Hospital in Columbus, two days before her 14th birthday. With a growing number of serious injuries resulting from dangers associated with watching baseball, MLB is facing a similar decision.
MLB only recently acknowledged the very real danger to fans posed by line drive foul balls during games. For years, it had resisted taking rather inexpensive steps to install more protective netting to ensure the safety of fans because of the perceived loss of enjoyment of a baseball game resulting from watching a game through a net. Andy Zlotnick was at Yankee Stadium on August 25, 2011 with his son, when the unthinkable happened. In the top of the third inning, Oakland A’s Hideki Matsui hit a line drive foul ball which struck Zlotnick in the face destroying his left eye socket, fracturing his sinus and upper jaw, and doing permanent damage to the left side of his face. Multiple surgeries were needed to save his eyesight and rebuild his face. Only his titanium glasses saved his life.
Four and a half years later Zlotnick suffers from loss of vision, headaches, and numbness in his jaw. He asked Randy Levine, the Yankees’ president, if the team would cover the $25,000 of his $100,000 in medical bills which he had to pay out-of-pocket. The Yankees refused. Zlotnick filed suit against the Yankees and MLB. Zlotnick soon learned what every victim of a line drive foul ball learns – despite knowing of the serious risks to fans and in spite of a simple and inexpensive “fix” to the problem being available, MLB is immune from liability. A summary judgment was quickly filed, but the parties have been waiting for a decision for nearly three years.
The reason fans rarely win such lawsuits is the microscopic fine print on the back of every MLB ticket. For example, on the back of the New York Yankees’ tickets it reads:
WARNING: DURING ALL BATTING PRACTICES, FIELDING PRACTICES, WARM-UPS AND THE COURSE OF THE GAME EXPERIENCE, HARD HIT BASEBALLS AND BATS AND FRAGMENTS THEREOF MAY BE THROWN OR HIT INTO THE STANDS. FOR EVERYONE’S SAFETY, PLEASE STAY ALERT AND BE AWARE OF YOUR SURROUNDINGS. ANY GUEST WHO IS CONCERNED WITH HIS OR HER SEAT LOCATION SHOULD CONTACT ANY CUSTOMER SERVICE REPRESENTATIVE FOR AN ALTERNATE SEAT LOCATION. The bearer of the Ticket assumes all risk and danger incidental to the sport of baseball and all warm-ups, practices and competitions associated with baseball, including specifically (but not exclusively) the danger of being injured by thrown bats, fragments thereof, and thrown or batted balls and agrees that neither the Office of the Commissioner of Baseball, MLB Enterprises, Inc., MLB Properties, Inc., Baseball Television, Inc., MLB Advanced Media, L.P., the American and National Leagues of Professional Baseball Clubs, the Major League Clubs, nor any of their respective agents, players, officers, employees and owners shall be liable for injuries or loss of personal property resulting from such causes.
This language requires the bearer of the ticket to assume all risk and danger incidental to the sport of baseball. The legal boilerplate disclaims all liability if a fan is injured at Yankee Stadium. Courts usually side with baseball due to the “assumption of risk” doctrine, also known as the “baseball rule.”
Zlotnick is not alone. Every year, dozens of fans are injured by flying bats and balls. A six-year-old girl underwent surgery in 2010 after a ball shattered her skull during an Atlanta Braves game and a seven-year-old in Chicago sustained severe brain swelling from a foul ball in 2008. At a Red Sox game last June, Tonya Carpenter had her skull bashed in by the shattered remains of a broken bat during a game at Fenway Park. The injuries were life-threatening and received national attention. The very next month, Laura Turek, a mother of two, was enjoying the game at Miller Park between the Brewers and the Braves when she was struck in the face with a 120 mph line drive, resulting in serious and permanent injuries. She sustained multiple fractures to her forehead, left eye, and sinus cavity. Her left eye was extensively damaged. Her most recent surgery on her eye was on April 11, 2016. Left with blurred vision and an eye that can only partially open, her medical bills are in excess of $200,000 and growing.
It is so difficult to overcome the “baseball rule” that most lawyers won’t even take these cases. Yet, not every case is lost. In the 1992 case of Yates v. Chicago National League Ball Club, 230 Ill. App.3d 472, 595 N.E.2d 570 (1992), a fan injured by a foul ball actually won. Yates, his four sisters, mother, and father attended a ballgame at Wrigley Field on August 20, 1983. The plaintiff’s father believed the screen behind home plate protected his own seat. A foul ball struck Delbert Yates, Jr. in the face, causing serious injuries. His father sued, claiming that the Cubs were negligent for failing to provide adequate screening and failing to warn him so as to allow him to avoid harm to his children. At trial, the jury awarded $67,500, and the Cubs appealed, pointing to the fine print on the back of the ticket. The Court declared that a ballpark owner does not absolutely insure the safety of baseball fans, but it does owe a duty of reasonable care, notwithstanding the assumption of risk language on the ticket. This duty is satisfied if the owner provides protective screening for the most dangerous part of the grandstand and for those who may be reasonably anticipated to desire protected seats. Brisson v. Minneapolis Baseball & Athletic Association, 240 N.W. 903 (Minn. 1932). This standard appears to be the majority rule, despite the popular notion that fans can never win such suits. Akins v. Glens Falls City School District, 53 N.Y.2d 325, 320, 441 N.Y.S.2d 644, 646, 424 N.E.2d 531, 533 (1981); Coronel v. Chicago White Sox, Ltd., 230 Ill. App.3d 734, 737, 171 Ill. Dec. 917, 919, 595 N.E.2d 45, 47 (1992)(referring only to the “most dangerous part of the grandstand”). In response to the Yates decision, the Illinois legislature passed special legislation limiting the liability of major league and minor league baseball organizations. Dubbed the “Baseball Facility Liability Act”, the law vastly restricts any possible recovery by fans struck by line drives or flying bats. 75 Ill. Comp. Stat. § 38/10 (1998).
Baseball’s resistance to extending protective netting has been the perception that it would rob fans of the “unparalleled proximity and access to our players.” Commissioner Rob Manfred. Nocera, J. (2015, Dec. 18), Baseball Has a New Policy on Netting, But There’s a Catch, New York Times. MLB has long denied that there is a problem that needs to be dealt with. John McHale, a top MLB executive, has said that there is no epidemic of foul ball damage that would warrant some sort of edict or action by the commissioner’s office.
MLB changed its tune, however, after two prominent plaintiffs’ firms filed a class-action lawsuit on behalf of all season ticket holders against MLB and Commissioner Rob Manfred.
Payne v. Office of the Commissioner of Baseball, filed on July 13, 2015 in the Northern District of California, alleges that the baseball commissioner has “failed to uphold his duties to enact safety measures against the danger of foul balls and broken bats through a pattern of negligence, misrepresentation.” The suit 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. The plaintiffs allege that fans can’t assume a risk that they can’t protect themselves against. The suit seeks to change current MLB rules and practices, including requiring the MLBto retrofit all existing major league and minor league indoor and outdoor ballparks to extend protective netting from foul pole to foul pole. The plaintiffs allege that the combination of right-handed power pitchers and left-handed hitters that are likely to swing late at fastballs tends to make the area behind and near the third base dugouts particularly dangerous. The first and third base lines are also dangerous because of their proximity to the bases, where players often throw toward the bases in attempts to tag out runners.
Injuries from flying bats and balls are nothing new. Fans have been exposed to injuries from foul balls and flying bats since the turn of the last century. Many fans feel strongly that if the class action suit succeeds, they will be separated from the intimacy of the game by netting extending from foul pole to foul pole, and young fans will have little use for the baseball gloves they bring to the games. Part of the game will die. But, there has to be a balance. They feel strongly that you can’t eliminate all risk from every day life.
Health insurance companies and workers’ compensation carriers loosely look at such injuries to fans while on employer-sponsored events for subrogation potential – with limited success. However, times are changing and such claims should be looked at closely for subrogation and liability, especially now that major league sports are on notice of the danger and the need for change. Players today are bigger and stronger and seats in newer ballparks are closer to the foul lines. Ball parks are configured much differently, and much more intimately, than those of yesteryear. Fans are increasingly distracted by cell phones, stunts, and gimmicks devised by the teams to keep fans engaged. Even fans that are paying attention are lucky if they can get out of the way of a hard-hit foul ball.
It might just be coincidence, but shortly after the class action suit was filed, Commissioner Manfred announced that there would be changes, including new recommendations on the location of protective netting, more prominent warnings, and broader fan education about the risks. On December 9, 2015, MLB recommended that all teams should lengthen protective netting and identify and educate fans about which seats are protected and which ones aren’t. 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” — in other words, the end of the dugout closest to home plate. In late December, the Minnesota Twins went even further and announced they would extend their netting to the far end of each dugout. Other teams are sure to follow suit.
The success of litigation involving injuries during sporting events will often depend on the specific conditions and hazards of the particular ball park involved, and the specific facts of that case. If a baseball team has a left-handed power hitter who routinely drives inside pitches 120 mph over the first-base dugout or has a tendency to let a bat fly into the stands, there may be a duty on the part of that ball club to take action.
If you should have any questions regarding this article or subrogation in general, please contact Gary Wickert at [email protected].