After Red Sox fan Tonya Carpenter was seriously hurt by a piece from a broken bat at Fenway Park, there were immediate expressions of concern by team management, players, Major League Baseball, and other fans.
Members of Red Sox Nation might assume the club will also pay Carpenter’s medical expenses. But under the law, it is unlikely the organization will have to do anything. The Sox won a lawsuit after a similar incident in 1998 in which Jane Costa, who was sitting behind the home dugout, was hit by a foul ball traveling at nearly 90 miles an hour. Costa’s face was crushed by the impact and her medical bills totaled nearly a half million dollars. She sued the Sox, but a court eventually ruled the organization had no obligation to warn or protect her, saying the risks of injury were “obvious.”
That “watch at your own peril” policy has long been standard at Fenway and other parks. The fine print on a Red Sox ticket says the holder “voluntarily assumes all risks and danger.” In the stands, signs warn fans to “Be Alert. Foul Balls and Bats Hurt.” People make a choice when they go to Fenway, and it insulates the Red Sox from legal if not moral responsibility.
This strategy — limiting liability by warning people in advance that what they might do or consume could be harmful — also has been popular with corporations such as cigarette companies. Of course, the Red Sox are not Philip Morris, and baseball, unlike smoking, has many social benefits. But like smokers of another era, today’s baseball fans don’t really understand the risks they face.
Getting hit by a ball or bat is not as rare as you might think. In fact, according to a study by Bloomberg News, about 1,750 fans a season are injured by batted balls at major league baseball games. That’s twice every three games or so, and more frequent than batters getting hit by pitches. And maple bats, which batters increasingly prefer, are particularly dangerous because they can fracture into large, jagged missiles.
Also, it’s difficult to stay on alert for the entire duration of a game. Even the most vigilant fan will occasionally succumb to the myriad distractions — “Beer here!” — that are part of the baseball experience. And this is to say nothing of kids, who rarely find a Clay Buchholz curveball more captivating than other visual catnip surrounding them. Risks are especially high at Fenway, according to a 2003 Globe study, since spectators are closer to the action and protected by less netting than at other parks.
The people who know the risks the best, the players, reportedly asked for more protections for fans in the last two contract negotiations. But the owners said no.
The legal rule protecting the Sox has two principal effects. First, it shifts the costs of injuries to the fans themselves, who are not typically at fault. These are not situations in which consumers are misusing a product. The fans are doing what the Sox invite them to do. But by purchasing a ticket, a spectator effectively enters into a negative lottery — if unlucky, they can be devastated. Worse, you don’t know the real odds until it is too late.
Second, because baseball teams are freed of any financial risk, they need not make hard judgments that balance the fans’ experience with their safety. They can generate money by making the game seem more intimate. That includes building seats closer to the action and minimizing protective netting that obscures views — without suffering a downside.
Tradeoffs between spectators’ safety and enjoyment are tricky. The solution is not to legislate more netting or to ban maple bats. The best resolution is a simple one: Make the Sox, or any team, pay for injuries caused by the products they produce and promote. That will prompt them to work out the proper level of safety on their own.
Attendance at a baseball game should not be taken as giving legal consent to whatever befalls you. Just ask Tonya Carpenter.
Kent Greenfield is professor of law and dean’s research scholar at Boston College, and the author of “The Myth of Choice: Personal Responsibility in a World of Limits.”