SPAD 489 HAT Assignment - Premise Liability Analysis - S24

Due Date: Sunday, April 14 at 11:59 p.m. EST / 60 points

Instructions: This activity may be completed individually, with a partner or in a group of three. First, review the scenario and formulate questions, analysis, and finally, proposed solutions. Once you have determined how you would respond to the questions provided, you should outline and write up your answers and analysis.

Scenario

Sam Smith, 76, purchased a lower-level reserved seat and was attending a San Francisco Giants game. After a Giants player hit a home run, San Francisco's mascot, Lou Seal, entered the field of play and began firing T-shirts into the stands with an air cannon.

While Lou Seal was firing T-shirts into the stands, one of the rolled shirts, wrapped with multiple strips of masking tape so it would fly farther, struck Sam Smith in the left eye. Smith stated he was not paying attention to Lou Seal at the moment he was struck by the projectile because he was watching fireworks that go off in centerfield after the Giants' home run. Smith sued the San Francisco Giants for $275,000 in damages as he sustained permanent eye damage when he was struck. Smith's lawyer noted that being struck by a foul ball may be an inherent risk of baseball, but getting struck by a flying T-shirt is not.

Lou Seal is usually performed by Alfred Collins, a paid, hourly employee for the Giants with years of experience as a mascot for multiple teams. On this night, Alfred called in sick just hours before the start of the game. Jeff Long, one of the Giants game-night marketing interns, volunteered to help and fill in for Alfred for this game. Jeff had never performed as Lou Seal or any other mascot, but he had "toyed around with the air cannon" several times with the interns and operations staff.

Questions

1. From a premise liability perspective, what type of "guest" is Mr. Smith? Based on the "status" or type of guest that Mr. Smith is, what duty is owed to him by the Giants? (5 points)

1. Does Mr. Smith's claim meet the four elements of negligence outlined in your text (pp. 434-439) that are required for a claim? Explain each of the four areas as they apply to this case. (5 points)

1. The Giants are asserting an Assumption of Risk defense, claiming that objects flying into the stands are an inherent risk of attending a baseball game. Based on these factors, how successful do you think each defense would be? Please explain your answer. Your answer should incorporate relevant cases from the text and from your own research.(10 points)

1. Based on what you learned through your research on the previous questions, should the Giants be held liable for injuries to Mr. Smith due to Lou Seal's actions or any of the factors involved type with the promotional activities (launching T-shirts into the stands, use of air cannon, taped T-shirts, etc.)? (10 points)

1. Based upon your analysis of the situation above, what two operational adjustments would you recommend to reduce potential liability in regards to the following:

1. the management of your mascot - explain two operational adjustments to minimize risk (10 points)

(b) future promotional events at the stadium - explain two operational adjustments to minimize risk (10 points)

Be specific and provide two recommendations for each. Explain why your recommendations would be responsive to your analysis and concerns.

Overall spelling, grammar and writing style: 5 points

Correct use of APA 7 for in-text citations and reference page: 5 points

Casey at the Bat, first published in the

San Francisco Examiner on June 3, 1888,

and popularized by thousands of performances in the late 19th and early 20th centuries by vaudevillian

DeWolf Hopper, along with hundreds of recitations in the 21st century by National Baseball Hall of Fame

staffer Tim Wiles, was published today, the famous composition would likely end differently because of

a modern sports law issue.

The original version, featuring the Mudville Nine down by two runs in the bottom of the final inning, with

runners on second and third, and star player Casey in the batter's box facing an 0-2 count, concluded its

13 stanzas with the following two:

The sneer is gone from Casey's lip, his teeth are clenched in hate; he pounds with cruel violence his

bat upon the plate. And now the pitcher holds the ball, and now he lets it go, and now the air is

shattered by the force of Casey's blow.

Oh, somewhere in this favored land the sun is shining bright; the band is playing somewhere, and

somewhere hearts are light, and somewhere men are laughing, and somewhere children shout; but

there is no joy in Mudville - mighty Casey has struck out.

The end of the modern verse, however, because of a frequently recurring event across all levels of

baseball and a common type of lawsuit against professional teams, colleges and high schools, would

likely be worded as follows:

...but there is no joy in Mudville - as mighty Casey hammers the ball, and in a millisecond into the

stands, the tiny orb takes flight, with the fan against whose head it collides, seeing only a flash of

white.

After surgery, pain, and medical expense - a result staggeringly cruel, the club still refused to

protect its fans, playing the part of organizational fool, believing it could always hide behind the

legal doctrine's shield, known to fallen fans of Mudville, simply as the "baseball rule."

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The "Baseball Rule" is a longstanding legal doctrine that the operators of baseball facilities have a limited

The Baseball Rule: Liability to Spectators for Foul Ball Injuries

By Lee Green, J.D. on November 10, 2021

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duty to protect fans from the risk of being hit by a foul ball and that spectators assume that risk because

it is an inherent danger associated with attending a ballgame.

The judicial principle first emerged on a widespread scale from a 1942 Missouri Supreme Court decision,

Hudson v. Kansas City Baseball Club, that relied on previous lower court decisions during the first four

decades of the 20th century which concluded that because of the high frequency of foul balls flying into

the stands and injuring fans, the danger was common knowledge to most attendees at games and

teams had the legal obligation only to provide 1) a reasonable number of protected seats and 2)

reasonable warnings of foul ball risks to spectators, responsibilities that were fulfilled by erecting a

backstop directly behind home plate and communicating oral or written cautions regarding the danger,

a mandate courts considered to be satisfied by ballpark signage and language included on waivers

printed (albeit in microscopic fonts) on the back of tickets.

During the last half of the 20th century, there was widespread adoption by state courts across the

country of the baseball rule and baseball facility operators were consistently shielded from liability for

spectator injuries from foul balls, with a dubious argument underpinning most of those rulings - the

assertion that the fan in question could have avoided injury if only he or she had been better focused on

the game and ducked out of the path of the foul ball as it was flying into the stands.

The landmark high school court case,

Akins v. Glen Falls City School District, a 1981 decision by the

highest court in New York, applied the baseball rule to reverse a $100,000 jury award to a woman who

lost an eye when hit in the face by a hard-hit foul ball while watching from a vantage point along the

third-base line as her son played in a high school game. The court held that the baseball rule applied to

scholastic contests and in its majority opinion implied that the injured fan was responsible for her own

injury because she didn't dive out of the way as the foul ball was flying in her direction.

In recent years, however, the scope of the problem and the near-impossibility of avoiding a projectile

often moving at 100+ miles per hour have resulted in a reconsideration by courts of the assumption of

risk argument upon which the baseball rule is based. In 2012, the ESPN show Sport Science aired a

segment illustrating that fans sitting anywhere from behind the dugout to the elbow (where the wall

angles inward toward the field), even when focused on the game, had an average of .8 of one second to

take evasive action from a line-drive foul ball. A 2014

Bloomberg News report revealed that since the

turn of the millennium, an average of 1,750 spectators per year were injured by foul balls at MLB games

(out of a collective total of 400,000+ foul balls per MLB season). A 2019 investigation by NBC Sports

identified 808 serious foul ball injuries (requiring hospitalization) over the previous eight seasons, an

average of 27 per MLB stadium.

And that data did not include foul ball injuries in 200+ minor league parks, 2000+ college facilities, and

16,000+ high school baseball stadiums (the 2018-19 NFHS participation survey reported 16,170 schools

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with baseball programs, many presumably with multiple baseball fields to accommodate varsity, junior

varsity, sophomore and freshman teams). Extrapolating the MLB numbers for 30 ballparks to the minor

league, college - and high school levels - even with an adjustment for fewer games played and fewer

fans in attendance - would yield a likelihood of thousands of foul ball injuries each year, a supposition

supported by the high volume of litigation by injured spectators against facility operators, including

school districts.

Reconsideration of the need for additional protective screening and warnings, along with challenges to

the legal validity of the baseball rule, have accelerated over the course of the last decade with increasing

media coverage of many of the most severe foul ball injuries.

In 2010, a six-year-old girl suffered a shattered skull when hit with a line drive behind the third base

dugout at Turner Field, the then home of the Atlanta Braves, a case eventually settled with undisclosed

terms when it became clear a state court would not apply the baseball rule.

In 2011, a player for Davenport Assumption High School in Iowa sustained a fractured skull when hit by

a foul ball in his team's dugout, resulting in stroke-like brain injuries and eventually leading to a $1.05

million jury award by a court that disregarded the baseball rule.

In 2015, a woman suffered life-threatening injuries when struck by a hard-hit foul, including permanent

brain damage, while seated beyond the dugout along the third base line during a Red Sox game at

Fenway Park, a case also settled when a court refused to grant summary judgment using the baseball

rule.

In 2017, a toddler being held in her father's arms was struck in the face at Yankee Stadium by a foul

estimated to have been moving at 105 mph and which hit her half-a-second after it left the bat, resulting

in a lawsuit still working its way through the judicial process.

In 2019, a two-year-old girl suffered a fractured skull, resulting in brain damage and recurrent seizures,

when hit by a line-drive foul during an Astros game at Minute Maid Park, a case settled in the summer of

2021 for an undisclosed monetary sum when a court declined to apply the baseball rule to shield the

team from liability.

Numerous cases have also been decided in the last decade - many of which included facts more likely to

apply to high school facilities than MLB ballparks - in which courts have declined to apply the baseball

rule because some form of distraction made it especially difficult for spectators to focus on the game

and avoid foul ball dangers. In

Rountree v. Boise Baseball, a 2013 Idaho Supreme Court decision, a fan

lost an eye when hit by a foul while standing in a club-like concession area adjacent to the field down the

third base line. In a 2010 decision,

Edward C. v. Albuquerque Isotopes, the New Mexico Supreme

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declined to apply the baseball rule when a child was severely injured when hit by a ball in a picnic area

adjacent to the field. In 2007, in

Harting v. Dayton Dragons, an Ohio Court of Appeals decision, the court

declined to apply the baseball rule when a fan was struck by a line drive while distracted by the team's

mascot. Other courts have declined to apply the shield when fans were injured while watching pre-game

contests of "pepper" (multiple balls being batted simultaneously directly in front of seating areas), when

spectators were on concourses or walking paths directly adjacent to fields, and when fans were sitting or

standing in unprotected areas along the baselines (typically at high school or youth games).

Most recently, in a 2020 ruling,

S.J. v. U.S.A. Baseball Federation, the California Court of Appeals declined

to apply the baseball rule to grant U.S.A. Baseball a summary judgment insulating the organization from

liability for a foul ball injury that cost a 12-year-old girl her right eye, with the court stating in its written

opinion, "to be sure, foul balls are part of baseball. But as the entity responsible for operating [the

baseball stadium], USA Baseball had a duty not only to use due care not to increase the risks to

spectators inherent in the game, but also to take reasonable measures that would increase safety and

minimize those risks." A full trial in the case is slated for late fall of 2021.

At the league's Winter Meetings in December 2015, MLB Commissioner Rob Manfred issued a

recommendation that all ballparks should extend protective netting to the far end of the dugouts. After

only a handful of teams complied and serious foul ball injuries continued to occur, Manfred issued an

edict at the 2019 Winter Meetings that all MLB teams were instructed to extend their protective netting

before the 2020 season. According to an investigation by Sports Illustrated published in 2021, that

directive resulted in six teams constructing foul-pole-to-foul-pole screening, five others with netting

beyond the elbows but not all the way to the foul poles, and 19 with protection extending to the elbows.

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The following are suggestions for preventative measures that should be implemented in high school

ballparks:

Increase the reach of protective screening to whatever extent is financially feasible, especially in the

area behind home plate and along the baselines where foul ball and thrown ball dangers are the

greatest.

At ball fields where spectators bring their own seating (lawn chairs or blankets for ground seating),

limit seating to areas behind backstops or screening or to areas out of the "line of fire" of batted or

thrown balls.

Provide signage warning spectators to exercise vigilance against being hit by batted or thrown balls by

focusing on the field of play both during pre-game warm-ups and the game itself. The warnings should

also instruct parents to safeguard the welfare of young children accompanying them to the game.

Place warning signage at entrance gates into the ballpark.

Place warning signage on or adjacent to bleachers not protected by screening.

Place warning signage on or adjacent to scoreboards or in other locations visible to the entire crowd.

Where public-address systems are in use, make frequent P.A. announcements before and during

games warning spectators about the risks of batted or thrown balls entering the stands.

Where game programs or roster sheets are distributed to fans, include a warning in an easy-to-read

font size in a visible location on the publication.

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Employ additional measures - screening or warning signs - in areas within the foreseeable reach of

batted or thrown balls and where the attention of spectators is likely to be diverted from the field of play

such as concession stands, restrooms, water fountains, picnic areas, and other multi-purpose use areas

where fans might congregate.

Keep in mind that such preventative measures should be taken both in baseball facilities and softball

facilities.

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Coomer v. Kansas City Royals Baseball Corporation 437 S.W.3d 184 (2014) FOCUS CASE FACTS John Coomer claimed he was injured when he was hit in the eye with a hotdog thrown by Sluggerrr, the Kansas City Royals mascot. The game in question was poorly attended, so Coomer left his assigned seats early in the game and moved to empty seats six rows behind the visitor's dugout. Shortly after Coomer changed seats, Sluggerrr mounted the visitor's dugout to begin the "Hotdog Launch," a feature of every Royals home game since 2000. The launch occurs between innings, when Sluggerrr uses an air gun to shoot hotdogs from the roof of the visitor's dugout to fans seated beyond hand-tossing range. When his assistants are reloading the air gun, Sluggerrr tosses hotdogs by hand to the fans seated nearby. Sluggerrr generally tossed the hotdogs underhand while facing the fans but sometimes throws overhand, behind his back, and side-armed. Coomer was seated approximately 15 to 20 feet from Sluggerrr, directly in his view. After employing his hotdog-shaped air gun to send hotdogs to distant fans, Sluggerrr began to toss hotdogs by hand to fans seated near Coomer. Coomer testified that he saw Sluggerrr turn away from the crowd as if to prepare for a behind-the-back throw, but, because Coomer chose that moment to turn and look at the scoreboard, he admits he never saw Sluggerrr throw the hotdog that he claims injured him. Coomer testified only that a "split second later ... something hit me in the face," and he described the blow as "pretty forceful." Two days later, Coomer felt he was "seeing differently" and something "wasn't right" with his left eye. The problem progressed until, approximately eight days after the incident, Coomer saw a doctor and was diagnosed with a detached retina. Coomer underwent surgeries to repair the retina and to remove a "traumatic cataract" in the same eye. Coomer sued the Kansas City Royals Baseball Corporation, claiming the team is responsible for Sluggerrr's negligence and the damages it caused. The Royals argued that under the baseball rule, Coomer was responsible for paying attention to everything going on around him, whether that be foul balls flying into the stands or a hot dog tossed by the mascot. A jury found in favor of the Royals, and Coomer appealed. HOLDING The Supreme Court of Missouri vacated the trial court's judgement and remanded the case, holding that the risk of being injured by a hotdog toss is not one of the inherent risks of watching a baseball game. RATIONALE An overwhelming majority of courts have recognized that spectators at sporting events are exposed to certain risks that are inherent to watching the contest. Thus, under the theory of implied primary assumption of the risk, the spectator has assumed the risks of being injured by a ball or bat flying into the stands. However, the rationale for this rule extends only to those risks that the home team is powerless to alleviate without fundamentally altering the game or the spectator's enjoyment of it. In addition, the home team also owes a duty of reasonable care to not alter or increase the inherent risks. The court determined that "the risk of injury from Sluggerrr's hotdog toss is not one of the risks inherent in watching the Royals play baseball that Coomer assumed merely by attending a game at Kauffman Stadium." This risk can

Moorman, Anita M.. Sport Law: A Managerial Approach (pp. 500-501). Taylor & Francis. Kindle Edition.

HOLDING The Supreme Court of Missouri vacated the trial court's judgement and remanded the case, holding that the risk of being injured by a hotdog toss is not one of the inherent risks of watching a baseball game. RATIONALE An overwhelming majority of courts have recognized that spectators at sporting events are exposed to certain risks that are inherent to watching the contest. Thus, under the theory of implied primary assumption of the risk, the spectator has assumed the risks of being injured by a ball or bat flying into the stands. However, the rationale for this rule extends only to those risks that the home team is powerless to alleviate without fundamentally altering the game or the spectator's enjoyment of it. In addition, the home team also owes a duty of reasonable care to not alter or increase the inherent risks. The court determined that "the risk of injury from Sluggerrr's hotdog toss is not one of the risks inherent in watching the Royals play baseball that Coomer assumed merely by attending a game at Kauffman Stadium." This risk can be increased, decreased or eliminated altogether with no impact on the game or the spectators' enjoyment of it. As a result, Sluggerrr (and, therefore, the Royals) owe the fans a duty to use reasonable care in conducting the Hotdog Launch and can be held liable for damages caused by a breach of that duty. Sluggerrr's tosses may - or may not - be negligent; that is a question of fact for the jury to decide. But the Royals owe the same duty of reasonable care when distributing hotdogs or other promotional materials that it owes to their 1.7 million fans in all other circumstances, excepting only those risks of injury that are an inherent part of watching a baseball game in person. Courts have recognized a number of exceptions to the limited duty rule when fans are injured when the game is not underway or where fans might not be expected to be on the lookout for balls or bats leaving the field (see Exhibit 15.3). In the 2015 retrial of the Coomer case, the jury found that neither party was at fault for Coomer's injury, leaving open the question of whether the limited duty rule only applies to bats and balls, or applies to projectiles that leave the field of play during a between innings promotion. Exhibit 15.3Limited duty rule cases.

Moorman, Anita M.. Sport Law: A Managerial Approach (p. 501). Taylor & Francis. Kindle Edition.

Maisonave v. Newark Bears Prof'l Baseball Club, Inc. (NJ. 2005) Deciding as a matter of law that, "in areas outside of the stands, including concourses and mezzanines such as the one in this appeal, a commercial sports facility is no different than any other commercial establishment, and we do not hesitate to apply general negligence principles Jones v. Three Rivers Mgmt. Corp. (Pa. 1978) Deciding as a matter of law that "one who attends a baseball game as a spectator [cannot] properly be charged with anticipating as inherent to baseball the risk of being struck by a baseball while properly using an interior walkway Turner v. Mandalay Sports Entm't, LLC. (Nev. 2008) Barring claim as a matter of law because spectator was injured while eating in concession area because "primary implied assumption of risk doctrine merely goes to the initial determination of whether the defendant's legal duty encompasses the risk encountered by the plaintiff," which is a question for the court Loughran v. The Phillies (Pa. 2005) Holding as a matter of law that, even though risk of being injured by a ball tossed into the stands during a break in the game was not part of the sport of baseball, such risks were inherent in watching professional baseball games because such "activities [by players] have become inextricably intertwined with a fan's baseball experience Sparks v. Sterling Doubleday Enterprises (N.Y. 2002) Holding as a matter of law that team owed no duty beyond screening seats behind home plate and was not liable to member of high school band hit during batting practice while waiting to participate in pre-game ceremonies on opening day Conclusion This chapter applied numerous legal principles in the context of operating sport and recreational facilities and events. Specifically, we examined the basic principles of premise liability and common defenses available to venue and event operators. We also learned the scope of the duty of care owed by the stadium owner or operator to the spectator and the range of risks occurring during event and venue operations that can cause injuries to our spectators. A solid understanding of the varied legal issues presented in this chapter will enable you to operate your events and facilities more safely and effectively.

Moorman, Anita M.. Sport Law: A Managerial Approach (pp. 501-502). Taylor & Francis. Kindle Edition.