Risks of the Game

Race cars crash sending debris into the stands. Stronger and bigger ballplayers hit foul balls and send broken bats into the far reaches of a ballpark. Pucks go flying at hockey games. As a result, lawsuits abound.

An Oakland A’s season-ticket holder recently filed a class-action lawsuit on behalf of all fans buying season tickets in unprotected areas of major league parks requesting in the court order increased safety netting.

Spectator claims and the rules governing liability are important to all levels of the insurance industry. They shape risk assessments, preventive recommendations, underwriting and claims of any sporting activity. But assaults on the rules increase risk.

The general rule in many states arises out of our national pastime due to the preponderance of foul balls entering the stands. The “baseball rule” limits liability when facility operators take reasonable precautions to protect spectators in dangerous areas, but in other areas spectators assume the risks of injury from acts which are considered “open and obvious” risks inherent in the game.

The rule is not limited to professional baseball. Thus, in any sport setting, a careful analysis should be undertaken of the risks posed to spectators by the play itself.

Missouri first recognized the rule a century ago in Edling v. Kansas City Baseball & Exhibition Co. There, the court ruled that the stadium owner had met its duty by protecting the area of the grandstand “most exposed to the battery of foul balls,” which would give spectators the assurance that those seats were reasonably protected. However, the court stated no duty existed to protect spectators.

More recently, a 2008 Nevada case, Turner v. Mandalay Sports Entertainment LLC, sets forth the modern doctrine. In Turner, the plaintiff went to see the Las Vegas 51’s play. She left her seat to buy a drink in the beer garden, where a foul ball knocked her unconscious and broke her nose. The court rejected her suit holding that as long as the owner took two precautionary steps it would fulfill its limited duty to the patrons.

First, the owner had to provide a “sufficient amount of protected seating for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion.” Second, the owner had to provide “protection for all spectators located in the most dangerous parts of the stadium.” The court found that the beer garden was not a dangerous area, so the owner could not be subject to liability, and that foul balls are a known risk when entering a baseball game.

In 2013, however, the Idaho Supreme Court refused to apply the rule in Rountree v. Boise Baseball LLC, in which a plaintiff lost an eye after being struck by a foul ball while eating in the unprotected executive club during a Boise Hawks’ game. The court allowed the suit to proceed against the stadium owner and rejected applying the baseball rule to bar liability stating that no compelling public policy reason existed requiring them to adopt the limited duty rule because injuries to fans at baseball games was not a common problem in Idaho.

Ideally, the Idaho decision is an aberration, and in the recent Oakland A’s lawsuit, the court will reinforce the baseball rule to deny the class action claim by holding that the A’s have no duty to protect spectators from the inherent risks of the game which they assume. However, the A’s litigation and the continued testing of the baseball rule should be a reminder that proactive measures to avoid liability must be considered when insuring sports.