This article appeared in the April issue of Athletic Business. Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.
Sports venue operators are undoubtedly familiar with the "baseball rule" — the primary assumption-of-risk defense that limits liability in negligence claims filed by injured baseball spectators. For decades, this defense has shielded defendants from liability, as courts have repeatedly determined that there are many inherent risks present when spectating at a baseball game. In the past few years, however, some state courts have limited the scope of the baseball rule. While grants of summary judgment to the teams and/or stadium operators — or outright case dismissals — used to be seemingly automatic in baseball cases, there is a developing trend away from the strict application of this legal precedent.
In July 2012, Keith Rawlins and his daughter attended a Cleveland Indians game at Progressive Field in Cleveland. Rawlins was aware that the game would be followed by a fireworks show when purchasing tickets, and specifically attended the game to see the postgame fireworks show.
As a safety precaution, facility operators planned to close certain sections of the ballpark — specifically, sections 170 to 179 — after the game to accommodate the fireworks. The tickets Rawlins purchased were for seats in section 171 and, therefore, were subject to the closure. Spectators were notified of the section closures with signage that read: "FIREWORKS TONIGHT. SECTIONS 170-179 WILL BE CLEARED AT THE CONCLUSION OF THE GAME." Further, the same message was announced over the public address system, as well as displayed on the stadium scoreboard throughout the game.
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RISK INHERENT TO BASEBALL?
Between the seventh and ninth innings, Rawlins noticed that the section he was sitting in was starting to close. Specifically, in the seventh inning, he overheard a woman on her cell phone in the row behind him say, "They're closing down the section for the fireworks. We're going to have to move." At the top of the ninth inning, Rawlins alleged that an usher ordered fans to immediately vacate their seats. Rawlins noted that shortly after the ninth inning started, an usher came to the end of the row where he and his daughter were seated and "just stood there with her arms folded" or "hands on her hips" and stared at him. Rawlins indicated that these nonverbal gestures compelled him to move, but admitted that no usher verbally told him they had to move.
Based on the usher's actions, Rawlins and his daughter left their seats and were walking up the stairs when Rawlins was struck by a foul ball. Rawlins maintains that the accident occurred because he and his daughter were ordered out of their seats to accommodate the postgame fireworks show.
Subsequent to the injury, Rawlins filed a complaint against the Cleveland Indians, Lawrence Dolan, the Cleveland Indians Club, and Major League Baseball Enterprises Inc. (He later dismissed the latter three entities.) In the remaining complaint against the Cleveland Indians, Rawlins sought relief based on claims of negligence and breach of contract.
In November 2014, the Cleveland Indians filed a motion for summary judgment, asserting that the negligence claim was barred by primary assumption of risk. Rawlins then filed his own motion for partial summary judgment, seeking to have the Cleveland Indians' defense of primary assumption of risk dismissed.
In January 2015, the trial court denied Rawlins's motion for partial summary judgment and granted the Cleveland Indians' motion for summary judgment. However, in November 2015, the Ohio Appellate court reversed that ruling and remanded the case back to the trial court. The appeals court found a genuine material question of fact was present regarding whether the risk that caused Rawlins's injury was inherent in a baseball game.
In considering the "baseball rule" assumption-of-risk defense, the appellate court reviewed arguments by both parties. Rawlins asserted that the injury occurred while he and his daughter were being ordered to vacate their seats for the fireworks show, which he considered a mitigating circumstance. As such, Rawlins contended that the risk was not inherent to the game of baseball and, therefore, primary assumption of the risk was not applicable as a defense.
In contrast, the Cleveland Indians argued that primary assumption of the risk should bar Rawlins's recovery because Rawlins's injuries were the "direct result of a foul ball entering into the stands during a baseball game," and "such a risk is directly associated with the baseball game." Further, the Indians argued that Rawlins and his daughter were not ordered or evacuated from their seats, and supported this assertion with affidavits from other spectators. Lastly, the Indians contended that even if Rawlins and his daughter had been ordered to move from their seats prior to the conclusion of the game, primary assumption of the risk would still bar recovery.
The Indians supported this final assertion with case law that applied the baseball rule to a situation in which a spectator was distracted by a mitigating circumstance (non-baseball events).
Specifically, the Indians relied on an Ohio case — Harting v. Dayton Dragons Professional Baseball Club, INC (2007) — in which a female spectator was struck by a foul ball during a game. She contended that the team mascot distracted her from being able to focus on the inherent dangers of the game, and such distraction was a mitigating factor beyond the scope of the baseball rule. The court disagreed, however, noting that the mascot interaction did not "absolve Harting from the duty to protect herself from the ordinary risks inherent in the sport."
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In the present case, the Ohio Appellate court specifically reviewed Harting and other "baseball rule" cases in Ohio. The court noted that "baseball is an inherently dangerous activity and that the spectator is in the best position to protect him or herself from injury at a baseball game."
However, the court did recognize that there are certain situations in which a spectator may be impacted by a mitigating circumstance that limits the scope of primary assumption of risk. As such, the court considered: (1) whether Rawlins and his daughter were forced to leave their seats; and (2) whether that created a mitigating circumstance.
In regard to the first question, the court found a material question of fact; both parties supplied contradictory witness affidavits. With regard to whether leaving the seats was a mitigating circumstance, the court also found a material question of fact. Importantly, the court stated that "spectators at sporting events routinely leave their seats — to go to the restroom or purchase concessions, for example — and are still subject to the doctrine of primary assumption of risk. But a different circumstance may be created when spectators are forced to leave their seats for a non-emergency or unjustified reason." Further, the court noted that under the assumption-of-risk doctrine, the sponsor of a sporting event has a duty "not to increase the risk of harm over and above the inherent risk of the sport."
As this and other recent cases demonstrate, the use of the assumption-of-risk defense can no longer be considered an absolute bar to plaintiffs' recovery in such cases. Those who sponsor sporting events and operate sports venues must be aware of potentially mitigating circumstances that would not be considered inherent risks for a spectator.
Further, specificity and clarity regarding policy and procedures for stadium staff are essential. While the Indians made certain to communicate the section closures to fans via signage and announcements, the timing of those closures was not sufficiently stated. Stadium employees may have indicated, verbally or non-verbally, that fans needed to evacuate those sections anywhere between the seventh and ninth innings of the game. This lack of policy, or poor execution of policy, resulted in a key question of fact in this case.
While certain mitigating factors such as in-game promotions, mascot appearances and — in this case — section evacuation cannot always be avoided, such occurrences in a baseball stadium (or other sports venue) must be evaluated to ensure that the risk of harm to spectators is not being increased beyond what is inherent in spectating the game.
Kristi Schoepfer-Bochicchio is an associate professor of Sports Management and Sport Law at Winthrop University in Rock Hill, S.C.
This article originally appeared in the April 2016 issue of Athletic Business with the title "Assumption-of-risk defense suffers another blow in foul ball case"