BACKGROUND

Eli attends a baseball game one summer afternoon. He is a big fan and has spent most of his summers going to baseball games at this stadium. Eli initially sits in the nosebleed seats but notices that there aren't too many people that day and decides to move closer to the action. Eventually he settles in a few rows up from the field in an area that is not covered by netting. In this ballpark, as in many others, the netting blocks a portion, but not all, of the seats from objects that can be thrown from the field. Eli chose to sit beyond the netting because it obscures his view of the game.

Shortly after he changes seats, the mascot "Scottie" comes out to begin his "Pretzel Launch," a traditional part of every game. Scottie has a theme song which blares out over the loudspeakers to let everyone know that the launch is about to begin. Usually, Scottie looks directly at the audience while using an underhanded throw, but sometimes he will turn around and throw his pretzels overhand behind his back. As Eli is talking to the person sitting next to him, Scottie completes a backward throw, and the pretzel hits Eli squarely in the eye. Eli feels a sharp pain, goes to the doctor after the game ends, and is diagnosed with a detached retina that requires surgery to repair.

Eli wants to sue the owner of the team (the "Owner") for negligence. This jurisdiction has established a mixed comparative negligence or fault regime.

QUESTION Breakdown:

You may choose whether you would like to serve as legal counsel for Eli or the Owner. Incorporate into your responses how this scenario is similar to the case(s) under "Universe" that provide the most support for your argument, and how it is different from the case(s) in which the judges decided the opposite of the result you hope to achieve now. You may also draw upon dissents, where appropriate.

Your brief should address the following questions: 1. What is negligence? 2. Has the Owner been negligent? In answering this question, make sure that you focus appropriately on the elements of negligence that are most in question in this case.

3. What are some defenses the Owner might raise and how strong are they?

4. What are the public policy implications of a decision in your favor?

UNIVERSE

In this universe, this is a case of first impression. The following guidelines and cases are the only ones that apply. Treat the cases as persuasive authority, not binding precedent.

Loughran v. The Phillies,888 A.2d 872 (2005) Cohen v. Sterling Mets, L.P., 17 Misc. 3d 218 (N.Y. Sup. Ct. 2007) Lowe v. California League of Prof. Baseball,56 Cal. App. 4th 112 (1997)

INSTRUCTIONS

help draft a memo supporting your side, demonstrating an understanding of legal reasoning and using all of the cases provided under "Universe." No outside research or reading except for these materials is encouraged.

• Short Introduction.The introduction sets the stage by briefly stating what the goal of memo/paper (e.g., "This memo will clarify..." or "This memo will establish..." or similar.)
• Legal Reasoning.In answering each of the questions presented in the writing assignment, the most important part is the analysis and discussion of the issues presented in the case. Please try to explain the cases in layman terms and give interpretations whenever possible; refrain from relying heavily on direct quotes unless they are necessary. Use facts from the case to support your reasoning or refute the opposing side's arguments.Make sure that you are answering the questions fully.

NOTES I want to consider:

Useful to discuss

No-Duty Rule:the no-duty rule is not the same as assumption of risk, even though some courts treat them very similarly. The easiest way to think about the difference between the two is that the no-duty rulenegates the owner's duty to Eli (owner owes no duty to Eli, period), whereas the assumption of risk defense bars liability even if the owner owes a duty of care to Eli. For your purposes, here is what you can do to keep them separate:

• Discuss the no-duty rule in the second question when you are analyzing whether the owner owes a duty of reasonable care to Eli. Focus on whether the risk of harm is "common, frequent, and expected."
• Discuss assumption of risk in the third question. This is a defense the owner might raiseeven if Eli can prove all the elements of negligence.Focus on whether Eli voluntarily assumed a risk that was "open and obvious."
• Mixed comparative fault regime:be careful!! The assignment states that you are operating in a jurisdiction that "has established a mixed comparative negligence or fault regime." Mixed comparative fault is a combination of contributory negligence and comparative fault. Here is a general definition:
  • Mixed comparative fault: under a mixed comparative fault regime, the central question iswho is more at fault fo the harm.
    • If the plaintiff is more than 50% responsible for the harm, then you analyze it as you would under contributory negligence i.e., the plaintiff loses.
    • However, if the plaintiff is less than 50% responsible for the damages, it becomes just pure comparative fault, meaning that the plaintiff will be able to recover the remaining share of damages that were due to the defendant's negligence. For example, if the plaintiff is 20% responsible and the defendant is 80% responsible, the plaintiff will be able to recover 80% of damages from the defendant.