Whether fans in the stands know it or not, they cheer on their baseball teams at their own risk.
A roughly century-old so-called Baseball Rule states that stadium owners and operators are not responsible for injuries sustained by foul balls or pieces of shattered bats, so long as netted or screened seats are in place for a reasonable number of spectators. The onus is on the fans to be alert during the game.
“That is a longstanding legal principle that fans who chose to sit where balls or shards of bat could hit them have a duty to pay attention for their own safety,” said Steven A. Adelman, a sports attorney focusing on venue safety.
Or, put another way, the gamble is simply the price of fandom.
The risks of injuries in the stands from errant bats or balls “are an unavoidable — even desirable — part of the joy that comes with being close enough to the Great American Pastime to smell the new-mown grass, to hear the crack of 42 inches of solid ash meeting a 95-mile-per-hour fastball, or to watch a diving third baseman turn a heart-rending triple into a soul-soaring double-play,” Missouri Judge Paul C. Wilson wrote in a 2009 case, describing his court’s general philosophy on the matter.
Debate about the controversial rule renewed after Tonya Carpenter, 44, of Paxton was struck and seriously injured by a shattered baseball bat at Friday night’s Red Sox game at Fenway Park.
The age-old rule makes any attempt to bring a lawsuit an uphill battle in which the odds are stacked against injured fans and their families.
“It’s harsh and old-fashioned,” said Adelman, noting the rule appears to apply in Carpenter’s case. “She’s presumed to be watching what’s happening on the field. It’s reasonably feasible that a thrown or batted ball can leave the field and enter the stands.”
Carpenter was at the game with her 8-year-old son, Aidan, and her former boss at Liberty Construction when she was struck in the face by a piece from a broken bat swung by Oakland Athletics batter Brett Lawrie.
Carpenter was seated close to the action near the visitors’ dugout on the third base side when the bat piece flew into the stands during the second inning of the game. She was carried off the field and taken to Beth Israel Deaconess Medical Center, where she remained in serious condition Sunday, hospital spokeswoman Kelly Lawman said in a statement.
Signs throughout the stadium alert fans to the dangers of the game. Ticket stubs also warn fans to beware: “The holder of this ticket voluntarily assumes all risks and danger of property loss and personal injury incidental to the game of baseball and related activities at Fenway Park, including specifically [but not exclusively] those relating to the structure and conditions of Fenway Park, and the danger of being injured by thrown or flying objects including bats and balls.”
The Baseball Rule was devised in the early part of the 20th century when baseball was played at a much slower pace, said Martin W. Healy, chief legal counsel for the Massachusetts Bar Association.
The game has changed.
Fans can now sit closer to the field – and in most areas of a stadium – without the obstruction of a net or screen, and feel as if they are a part of the game. Thrown or batted balls rip through the air at quicker speeds and baseball bats once made of ash are now often made of maple, which players prefer, but which have led to serious injuries not only to fans, but to pitchers and infielders as well.
“The Baseball Rule is ripe for change,” said Healy. “The immunity the baseball rule has provided to baseball has to be tossed out.”
That rule was in part the reason Monte Hoskey decided against taking the Kansas City Royals and Kauffman Stadium to court when his then-4-year-old daughter, Alexis, sustained a skull fracture there after a line drive foul ball hit her in the left eye during a game in 2011.
“It came up so fast,” Hoskey said in a phone interview Sunday. “I watched it come in and hit her.”
Hoskey, 40, said he hired an attorney to assist with obtaining compensation from the Royals for Alexis’ medical expenses, but their request was denied three times. The attorney advised the family against filing a lawsuit noting the history of previous cases, a disclaimer on the back of sports tickets, and the costs associated with a long legal battle.
“I’m sure at some point I read the back of the tickets, but it’s family entertainment,” Hoskey said, adding he was seated on third base side, 30 to 40 rows past the dugout seats. At least two other people were injured at the stadium that year.
“Even if you pay attention, you really don’t have enough time to react. The ball will be in the stands within a matter of seconds,” said Robert M. Gorman, co-author of “Death at the Ballpark,” which examines about 850 game-related fatalities between 1862 and 2007. “Most people are not paying attention. It’s a social event, and the game is secondary.”
In 2004, a Massachusetts appellate court ruled in favor of the Sox against Jane Costa, who lived in Stoughton and was injured by a baseball in 1998.
The three-member panel did not cite the Baseball Rule in its order. Costa had argued that the Sox had failed to warn fans – beyond the fine print on the back of a ticket – of the dangers associated with watching the game.
But the panel said, the Sox “had no duty to warn the plaintiff of the obvious danger of a foul ball being hit into the stands.” (The principal owner of the Red Sox is John Henry, who also owns the Globe. )
Gorman, who plans on releasing an updated version of his book, which will include about 2,000 fatalities between 1862 and 2014, said that figure includes 54 people in Massachusetts, 15 of whom were spectators.
In recent years, injured fans have managed to gain some victories in the fight against the controversial Baseball Rule, including in Missouri, where a Supreme Court ruled last year that flying hot dogs were not a part of the risk fans must assume when watching the game.
The ruling followed an incident in September 2009 when Kansas City Royals mascot Slugerrr threw a hot dog into the crowd and struck John Coomer in the eye.
“In the past, this Court has held that spectators cannot sue a baseball team for injuries caused when a ball or bat enters the stands,” Judge Wilson said in his decision. But, he added, “The risk of being injured by Sluggerrr’s hot dog toss, on the other hand, is not an unavoidable part of watching the Royals play baseball.”
The case was remanded to a jury trial.
In 2013, the Idaho Supreme Court also decided not to enforce the Baseball Rule, after spectator Bud Rountree lost an eye after being hit by a foul ball while watching the Chicago Cubs farm team the Boise Hawks. A jury will make a decision in the case.
Rountree was in a section of the stadium protected by a mesh net when he walked over to speak to someone in an unprotected area moments before the ball struck.
The success of those cases is largely attributed to time and location of the incidents, said Adelman, who said the rule should no longer apply to ballparks.
The “Baseball Rule” is a national concept upheld by most states. However, in Georgia the Court of Appeals declined to adopt the rule last year when the father of a 6-year-old girl, whose skull was fractured by a foul ball, filed a lawsuit against the Atlanta Braves.
But Sox fans attending a game Sunday said they were aware of the rule — and for the most part were fine with it.
“People come here and they accept the fact that they could get hit with a bat or a ball,” said G.B Kelley, 61, of Boston. “It’s an implied danger when you go to a game.”
But Nicole Schall of Phoenix, Ariz., disagreed.
“You come to a baseball game to have fun, not to get injured,” said Schall, 40. “You don’t come thinking it’s a dangerous thing.”
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