It is a magnificent April day and the ballpark has that palpable air of excitement that only opening day can bring. For on this one day, everyone is still batting a thousand and your team is undefeated despite the fact that the owner refuses to pay for good pitching. The stands are filled with the smells of popcorn, hotdogs and the fan next to you that has had too much to drink. Ahhhhhh….baseball season is back! As you rest comfortably in your front row seat along the third base line, you contemplate the great American past time and whether your boss believes that you are really home sick.
Just then, you hear the crack of the bat and suddenly a line drive foul ball comes screaming into the stands like it was shot out of a cannon. The ball smacks harmlessly against an empty seat, narrowly missing two young girls who are texting each other on their iPhones. The crowd breathes a collective sigh of relief. The drunken fan next to you leans over and tells you, with conviction, that if one of those girls was hit, “she would own the team.” Is he right?
No. Since the beginning of baseball, courts have grappled with the duty that stadiums have to spectators. Given the great deference that our society has traditionally placed on the game of baseball, courts have ruled in favor of stadiums, finding that spectators assume the risk of injury, as the danger of a foul ball is common knowledge. Over the years, as baseball’s popularity has waned, a shift has taken place in favor of spectator safety. Although rules differ from state to state, in Texas, a stadium owner has only a limited duty to provide adequately screened seats for all those who wish to sit behind a screen. The owner does not have the additional duty of informing spectators of the availability of the screened seats as the screen is obvious to all those who attend the game.
To the chagrin of stadium and team owners, it appears as though the courts and legislatures may continue to erode some of the favorable presumptions that baseball once enjoyed. In a New Jersey case, a fan left his seat to purchase beer at a concession stand inside the stadium’s mezzanine. While standing in line, the fan was hit with a foul ball in the face, causing serious injury. He sued. Although the trial court found in favor of the stadium under traditional assumption of the risk principles benefiting baseball, the New Jersey Supreme Court disagreed, maintaining that a different standard of care was appropriate for those fans outside the stands. “While watching the game, either seated or standing in an unprotected viewing area, spectators may reasonably be expected to pay attention and to look out for their own safety; but the activities and ambiance of the concession area predictably draw the attention of even the most experienced and the most wary fan from the action on the field of play…[therefore, the team and the vendor] have a concomitant duty to exercise reasonable care to protect them during such times of heightened vulnerability.” Given the slow, but discernable, shift toward spectator safety, it is likely that this New Jersey decision will have an impact on stadiums across the country.
Dent v. The Texas Rangers, Ltd., 764 S.W.2d 345 (Tex.App. Fort Worth 1989, writ denied) and Maisonave v. The Newark Bears Professional Baseball Club, 881 A.2d 700 (2005).