A sweeping decision by a unanimous Idaho Supreme Court has called into question the future of the well-known "baseball rule," which for generations has insulated stadium owners and operators from liability for claims by spectators injured by errant bats and balls. In its ruling for plaintiff Bud Rountree, the court also held that primary or secondary assumption of the risk is not a defense except in a situation involving express written or oral consent, signaling that the baseball rule may be giving way to a duty of care based on traditional negligence principles.

On Aug. 13, 2008, Rountree and his family watched a Boise Hawks baseball game from behind a protected area at Memorial Stadium. (Most areas of Memorial Stadium are, in fact, protected by 30-foot-high mesh netting.) However, he later went to the "Executive Club" - one of the stadium's few unprotected areas, where there are no signs warning of the dangers of being struck by a foul ball. Rountree admitted that while he was in the Executive Club, he stopped paying attention to the game until he heard a roar from the crowd; when he turned around to see what was happening, he was struck in the face by a foul ball. He subsequently lost his eye.

Rountree subsequently commenced a negligence action against 17 defendants (collectively, "Boise Baseball"). Boise Baseball moved for summary judgment and urged the lower court to adopt the "baseball rule," which limits the duty of care owed by a baseball stadium owner or operator to screening the area behind home plate. Since there was no dispute that Boise Baseball met that standard of care, Boise Baseball contended that the case should be dismissed once the baseball rule was applied. In the alternative, Boise Baseball argued that Rountree consented to the risk of injury by watching the baseball game from an unprotected area. In response, Rountree contended that the baseball rule was "outmoded and in decline" and contrary to public policy, and asked the court not to adopt it. The lower court denied the motion for summary judgment and Boise Baseball appealed.

Taking up Rountree v. Boise Baseball LLC [(Idaho Supreme Court 2013)], the Idaho Supreme Court - even while conceding that a majority of jurisdictions have adopted some version of the baseball rule - held that the issue of the duty of care owed by stadium owners and operators to spectators injured by foul balls was a matter of first impression in Idaho, meaning that there is no binding authority on the matter presented. The court found no compelling public policy reason to limit the duty of care owed to a spectator at a baseball game and expressly rejected the "nose count" of other jurisdictions that have chosen to adopt the baseball rule. The court observed that, if it so decided, Idaho's legislature could enact legislation limiting the duty of care owed by a baseball stadium owner or operator. The legislatures of Arizona, Colorado, New Jersey and Illinois have enacted such legislation rather than adopt the baseball rule.

Boise Baseball also lost on the second prong of its appeal: the Boise Supreme Court held that primary implied assumption of risk is not a valid defense under Idaho law unless there is express written or oral consent to the risk of injury. Apparently, the exculpatory language on the back of Rountree's ticket did not suffice as written consent, and Rountree even alleged that, although he was a season ticket-holder for more than 20 years, he never read the exculpatory language. This stated:

"THE HOLDER ASSUMES ALL RISK AND DANGERS INCIDENTAL TO THE GAME OF BASEBALL INCLUDING SPECIFICALLY (BUT NOT EXCLUSIVELY) THE DANGER OF BEING INJURED BY THROWN OR BATTED BALLS."

Allowing assumption of the risk as an absolute bar was deemed inconsistent with Idaho's comparative negligence system - whether the risks are inherent in an activity or not. The court further held that cases involving primary assumption of the risk are readily handled by Idaho's comparative negligence principles: fault will be assessed and liability will be apportioned. In the Rountree case, the court held, a jury will ultimately apportion the degree of fault between Rountree and Boise Baseball.