Foul-ball injuries persist at baseball games

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The American Museum of Tort Law (AMTL) hosted a Zoom panel Thursday on the problem of foul balls injuring baseball fans.

(UPDATE: Video posted, Feb. 27.)

American tort law students usually are acquainted with the so-called "baseball rule." The "rule" represents the legal supposition that fans who attend baseball games understand and accept the risk that a foul ball might fly into the stands and cause injury. More accurately stated in contemporary terms in American tort law, the "rule" is that a professional baseball enterprise does not have a duty to avert injuries that are part of the game of baseball.

You can tell from my quote marks that I don't like the characterization of "the baseball rule" as a rule, because it's not. The "rule" is oft stated as such in popular culture and too often in law. But it does not represent a consistent "rule" of decision in tort cases. Plaintiff lawyers have circumnavigated it many times, justifiably so. And if the "rule" were a rule, it would be a bad one. Horrific injuries happen too often, such as shattered eye sockets and blinding. Two children were critically injured in the minor leagues in the past season.

You can see the problems even on the face of the "rule." Not everyone who goes to a baseball game knows that there is a danger of being hit by a foul ball, especially the risk of substantial bodily harm in a line drive with a 100-mph exit velocity. Baseball clubs put up some nets specifically to protect fans from these injuries in some places, such as behind home plate, but the nets fall far short of full coverage. Fans sitting in unprotected seats might not see the difference. Certainly fans might not know the scope of potential injury. Finally, the assumption-of-risk doctrine that animates the "baseball rule" was crafted to preclude lawsuits by sport participants. The doctrine has been extended tentatively and sometimes dubiously to fans.

As in many tort cases, the functioning of the tort system in foul-ball cases is being disrupted by arbitration clauses in baseball ticket terms and conditions, and by non-disclosure agreements in settlements. Secrecy impedes tort's norm-setting and deterrence functions. If fans don't understand the danger and frequency of foul ball injuries, they're unlikely to find out from reported cases.

Hosted by Melissa Bird for the AMTL, the panel comprised Ken Reed, Jordan Skopp, and Greg Wilkowski. Reed is Sports Policy Director for League of Fans, a Ralph Nader project that covers the foul-ball problem. Skopp, a New York realtor, is the activist-founder of the grassroots Foul Ball Safety Now!, which hosts a trove of information. Wilkowski is a Chicago lawyer presently representing plaintiffs in a class action against the Peoria Chiefs (e.g., Journal Star).