Baseball Rule

In American tort law, the Baseball RuleNathaniel Grow and Zachary Flagel,
The Faulty Law and Economics of the 'Baseball Rule'
, 60 Wm. & Mary L. Rev. 59, 63–64 (2018). holds that a baseball team or, at amateur levels, its sponsoring organization, cannot be held liable for injuries suffered by a spectator struck by a foul ball batted into the stands, under most circumstances, as long as the team has offered some protected seating in the areas where foul balls are most likely to cause injuries. This is considered within the standard of reasonable care that teams owe to spectators, although in recent decades it has more often been characterized as a limited- or no-duty rule, and applied to ice hockey and golf as well. It is largely a matter of case law in state courts, although four states have codified it.

The rule arose from a pair of 1910s decisions by the Missouri Court of Appeals, both considering suits filed by spectators at home games of the minor league Kansas City Blues. In the first, considered to be the case that established the rule, the court upheld a trial verdict against the plaintiff, holding that his decision to sit outside the netting the team had installed behind home plate constituted contributory negligence and assumption of risk on his part. Conversely, in the second, decided a year later, the court upheld a verdict ''for'' a plaintiff who had been struck in the eye by a foul ball that passed through a hole in the netting between him and home plate. Other state courts accepted those cases as precedent and used them to decide similar cases.

By the 1930s it was interpreted as requiring teams to erect protective screening over the stands behind home plate, a practice that had already become common in the late 19th century due to injuries from foul balls, which rose after an 1884 rule change allowed overhand pitching. Courts have seen it as balancing the team's duty of care toward spectators with the spectators' interest in having an unobstructed view of the game available and perhaps being able to take home a recovered foul ball as a souvenir. It has been held to apply in some other situations besides foul balls—when a player deliberately threw the ball into the stands as a souvenir, for instance—but not in others, such as errant pitches from a relief pitcher warming up in the bullpen, situations where multiple balls are in play (such as (formerly) batting practice), where struck spectators are not in the seating areas of the venue or where they may have been distracted by the team's mascot.

In the wake of some serious injuries caused by foul balls in Major League Baseball (MLB) parks in the 2010s, including the first foul-ball spectator death at an MLB game in almost 50 years, there have been calls for the rule to be re-examined or abolished altogether, as more spectators are struck by a foul ball than players in the game are hit by a pitch. While MLB has required all of its teams to extend their protective screens to cover the area to the far end of the dugout on either side of the field, critics note that it is no longer possible for spectators to choose to sit under those screens given that all seats in the venue are reserved for those who buy them, many for the entire season. Further, they say, balls are hit harder and spectators, who on average now sit closer to the field than they did in 1913, have more distractions. Two states' supreme courts have declined to adopt the rule, which has been criticized as a relic of the era before the adoption of comparative negligence; a widely read ''William and Mary Law Review'' article further argues that the Baseball Rule fails the law and economics standards of optimally allocated tort liability.

History

Development of modern game

Professional baseball in the United States began in 1869. In those early years, there was little risk of injury from a ball hit into the stands. While seats were located as close as a few feet (1–2 m) from the foul lines, putting fans at risk of being hit by overthrown balls or lost bats, there was less risk from batted balls. At the time, the rules required pitchers to not only deliver the ball underhand, but with their arms barely bent and from below the waist. In addition, batters could and did request the ball be pitched to a specific position over the plate.J.G. Hylton,
A Foul Ball in the Courtroom: The Baseball Spectator Injury as a Case of First Impression
, 38 Tulsa L. Rev. 485, 487–88 (2013)

As a result, most games were dominated by offense, with fielding providing most defense, and games often ended with very high scores by modern standards. One or sometimes both teams exceeding 100 runs in a game was not unusual. Pitchers, some of whom had learned to throw the ball very fast even underhand, began to influence the game and drive down scores with the help of gradual rule changes that allowed the ball to be delivered from higher up, with the arm more cocked, making the first curveballs possible. Injuries in the stands from foul balls in the late 1870s earned the area behind home plate the nickname of "the slaughter pit"; the National League's Providence Grays became the first team to erect a protective screen over that section of their park in 1879.

In 1884 the evolution to modern pitching was completed when overhand pitching was allowed. Consequently it became much harder for hitters to direct the ball into fair territory when they connected with it. More teams began erecting backstops, as they came to be called, similar to those the Grays had put up, but they were not always popular with fans. The Milwaukee Northwestern League team removed theirs after two weeks of fan complaints that they unduly obstructed their view of play.

19th-century tort law

Fatalities from foul balls occurred in the late 19th and early 20th centuries; many of those struck and killed were children watching or otherwise in proximity to amateur games. In one unusual 1902 incident, a 20-year-old Ohio man watching a game was stabbed through the heart when a friend who was lending him a knife was struck by a foul ball as he did; after telling his friends he was not badly hurt, he began bleeding uncontrollably and died a few minutes later. The ''Washington Star'' reported in 1888 that a man claiming to have been hit by a ball (whether batted or thrown was not clear) at a Washington Statesmen game the year before had filed suit; if he had, it did not result in a published opinion.''Foul Ball'', 486n4

Media reports from the era suggest that there were other lawsuits besides the 1888 Washington lawsuit against baseball teams over foul ball injuries around the turn of the century, but none were reported. They may have been disposed through settlement, trial or withdrawal. It has also been suggested that the law concerning torts brought by public invitees such as spectators at a baseball game was not seen as favorable to such suits.''Foul Ball'', 489-92

Up to the time of baseball's origins in the United States, common law treated those on private property not generally open to the public, like sporting venues, but on the property with the owner's permission, as licensees. The property owner owed them no other duty of care than to protect them from unforeseeable hazards incident to the conditions of the property. That standard would have likely precluded any suit over injuries from a foul ball as they were a foreseeable risk.

However, in 1866 an English court's decision, ''Indermaur v. Dames'', held that a landowner was indeed liable for damages from personally known hazards or hazards the landowner reasonably could have been expected to. Since the plaintiff was there for business reasons, to inspect a faulty gas regulator, when he fell through the defendant's floor and suffered injury, the Court of Common Pleas held he was not a licensee but a visitor or invitee, there to transact business mutually beneficial to both parties, a distinction recent cases had begun to recognize but not formalize. The Massachusetts Supreme Judicial Court accepted ''Indermaur'' as precedent two years later in a similar case of a ship damaged by a submerged rock, and it would eventually be so recognized by the courts of 26 states''Foul Ball'', 490n28 and the U.S. Supreme Court.''Bennett v. Railroad Company'',

In 1883 the Massachusetts Supreme Court held that a patron of a place of public amusement was an invitee, and that the defendant, a dance hall, had a duty to maintain the premises safely. Legal scholar Seymour Thompson wrote in a popular work on tort law that the duties of business owners towards invitees, or business visitors as they were now known, applied with "special force to ... establishments to which the public are invited in large numbers." As the 20th century dawned, courts had applied that principle to a wide variety of such businesses, including sports venues.

However, despite a more favorable legal climate, there were no reported cases over foul ball injuries. Marquette law professor J.G. Hylton, in a history of the origins of the Baseball Rule, notes that the visitor principle had primarily decided cases where the issues with the property had existed prior to the plaintiff's entry on to it and thus a plaintiff could claim both that the defendant knew of the defect and he himself did not, whereas most spectators at a baseball game would have known that foul balls frequently entered the stands at high speed. There had not been many cases where the plaintiffs' knowledge of the possible risks was a factor.

Also, at the time, American courts recognized assumption of risk and contributory negligence, when proven, as absolute bars to any recovery by a plaintiff. "If heyknew of the dangers of foul balls and chose to sit in an unprotected seat," Hylton writes, "then he or she opened himself up to the charge that his or her own negligence ... had contributed to his or her injury." He also speculates that the dominant cultural ethos of rugged individualism during the Gilded Age and early Progressive Era may have led injured spectators to fault themselves, and only themselves, for their injury.

The earliest reported lawsuit over injuries from a batted baseball was filed during the first decade of the 20th century. A man watching a horse race at an Iowa agricultural fair was hit by a foul ball from a baseball game being played on the track's infield. He sued the directors of the fair; in 1907 the state's Supreme Court held that the directors were not liable since their organization's purpose was to promote agriculture and the baseball game was not part of that, thus they could not be expected to have knowledge of the risks it posed and there was no nonfeasance.

The following year, Michigan's Supreme Court took judicial notice, in a case brought by a patron injured by a foul ball from a nearby game while dancing at a resort, of the inherent risks of watching a baseball game and that every spectator assumed them by choosing to watch:

Establishment of the Baseball Rule

''Crane v. Kansas City Baseball & Exhibition Co.''

In 1913, an appellate court for the first time heard a case against a baseball team arising from a foul ball injury incurred by a paying spectator at the game.''Baseball Rule'', at 71 Three years earlier, Samuel Crane had gone to a home game of the Kansas City Blues, an American Association class AA minor league team, at Association Park in Kansas City, Missouri. At the ticket counter, he had the choice of a seat in the bleachers, beyond the outfield fence, for 25¢ ($ in today's dollars) or in the grandstand, next to the infield, for twice that price. In either area, all seats were general admission; Crane could sit wherever he wanted if a space was available.

By that time protective screens had been installed in every baseball park where the game was played professionally. At minimum they covered the area immediately behind home plate; the screen at Association Park extended as far as first and third base on either foul line, roughly from home. Crane decided to sit in an area beyond the screen, and at some point during the game was struck by a foul ball and injured; the details are not known.

Crane later filed suit in Jackson County Circuit Court,''Foul Ball'', 494 arguing that the Blues had been negligent and seeking $100 in damages ($ in today's dollars) plus court costs; their duty of reasonable care to him required that they screen off ''all'' the grandstand seats. He and the team stipulated to the facts of the case and agreed to try it as a question of law. The trial court held for the team; Crane appealed.

The Kansas City Division of the Missouri Court of Appeals affirmed the judgement. Citing the Michigan Supreme Court's 1908 ''dictum'', it held that Crane had assumed the risks of watching a baseball game when he chose to attend. Since given a choice between protected and unprotected seats, Crane chose the latter (for the unobstructed view, the court speculated), there was contributory negligence on his part and the team was not liable. "One invited to a place who is offered a choice of two positions one of which is less safe than the other cannot be said to be in the exercise of reasonable care if, with full knowledge of the risks and dangers, he chooses the more dangerous place", wrote Judge W.O. Jackson. "That is a fundamental rule of the law of negligence."

Almost a century later, Hylton observed that despite Crane's failure to win his case, the court's decision did impose two requirements on teams. While they avoided a requirement they screen off all seats and end the practice of offering standing room only attendance behind the outfield fence to latecomers at sold-out games, both of which would have likely reduced attendance, the court did hold that teams owed a duty of reasonable care to fans, which specifically meant that they should offer at least some protected seating. "This responsibility could not be shirked," Hylton wrote, "and it did not matter either if the patron knew of the danger before attending or was informed of it upon entering the park."''Foul Ball'', 496–7

''Edling v. Kansas City Baseball & Exhibition Co.''

Within a year another case of a fan injured by a foul ball at a Blues game came before the same court, allowing it to apply and clarify the rule. The circumstances of this case were markedly different, and the court found for the plaintiff, one Edling.

In 1911, Charles Edling, like Crane, went to a Blues home game. He, too, paid the higher price for a grandstand seat, but unlike Crane chose to sit behind the netting, halfway up the stands from the field level, on almost a line with home plate and the pitcher's mound so he could see pitches curve. During the game, Edling lost sight of one of the many foul balls until it struck him in the eye, having passed through a square-foot () hole in the netting. The injuries were serious, including a broken nose as well as the eye damage, and Edling filed suit, demanding $3,500 ($ in today's dollars) plus court costs.

Since there was a factual dispute as to the condition of the screen—the team claimed it was new and in perfect condition, while fans who had attended other games testified that it had had many holes which had gone unrepaired for a long time—the case was heard by a jury. The team mounted two other defenses: that even in perfect condition a screen unobtrusive enough to not detract from spectators' enjoyment of the game could not also be strong enough to stop ''all'' foul balls, and that Edling had also been contributorily negligent by failing to keep track of the ball that had hit him after it had been hit (to that, Edling's lawyer responded that if the Blues' players had kept their eyes on the ball as well as the team's lawyers said Edling should have, the team would have had a much better season).

The jury found for Edling and the Blues appealed. In response to the team's claim that the jury should not have heard the testimony about the condition of the screen, the appeals court relied on ''Crane'' to hold that by purposely sitting behind the screen, Edling could reasonably assume he was safe from foul balls. "It was the duty of defendant to keep the screen free from defects, and if it id not the jury could properly infer that it ... was guilty of negligence."

"We must also ignore the suggestion that creening capable of blocking all foul balls would be too hard to see through, the court said. Evidence at trial, it explained, had shown that a mesh of chicken wire similar to that used at Association Park could stop any batted ball with minimal impact on spectators' view, when properly maintained. Citing Edling's attorney's comment, the court also agreed it was not Edling's responsibility to avoid injury by keeping track of the ball at all times. "The uncertainty in the direction, speed and force of a batted ball is one of the interesting and exciting features of the game," the court observed, "and frequently it is difficult for even a trained eye to follow the course of the ball."

Hylton reads ''Edling'' as contractualizing the relationship between team and spectator in the area of foul ball risk and protection. By screening off some of the seats, a team implicitly guaranteed to the spectators who chose to sit behind the screen that it would be in sufficient condition to protect them from foul ball injuries, unless (as the team claimed Edling had) they knowingly remained in front of a defective portion. "While not obligated to screen every seat in the park", he comments, "the team was obligated not only to provide protected seats for fans who desired them but also to maintain those seats in a reasonable manner."''Foul Ball'', 500

Precedence and evolution

''Crane'' became precedent outside Missouri before ''Edling'' was even heard there. Later in 1913, the Minnesota Supreme Court considered a case, like Crane's, brought by a spectator who had chosen to sit in an unprotected area of the stands and been injured by a foul ball. The plaintiff, a woman who was attending a baseball game for the first time ever on Ladies' Day, had won in the lower courts, but the state's highest court overturned the verdict, citing the case's similarities to ''Crane'' and quoting from that opinion extensively. Unlike Crane, the plaintiff argued that she had had no familiarity with the game and thus should at least have been warned about the possibility of injury from a foul ball, but the court did not distinguish her case from Crane's on that basis.

Washington's Supreme Court relied on ''Crane'' in 1919 to reverse an earlier case in which it had allowed an injured spectator to proceed with his suit. The circumstances were similar—the plaintiff had chosen to sit in unprotected seating where protected seats had been available—but the plaintiff in ''Kavafian v. Seattle Baseball Club Association'' had initially argued that the team's negligence lay in having changed its mind about where to put screening, as Kavafian's seat was located in an area of the stadium originally intended to have it. Per ''Crane'', the court again found that as long as the team had made some protected seats available a spectator who chose not to sit there assumed all the risk.

In 1929 the Supreme Court in neighboring Oregon was confronted with a first-impression variation on the foul-ball injury. A man who had attended a game in Portland four years earlier and sat near the edge of a screen was nevertheless struck and permanently injured by a foul ball that curved behind it. At trial he had prevailed and been awarded $3,000 ($ in today's dollars), which was upheld on appeal. However, the state Supreme Court held that such an unusual trajectory for a foul ball was so unforeseeable that the team could not reasonably be expected to protect spectators from a ball so hit and vacated the award.

Joan Quinn, a San Francisco teenager who attended a 1929 game of the Pacific Coast League's Seals at Recreation Park, asked to be seated behind the screen but was told by the usher that none were available at that time, so she sat in an unprotected seat expecting the usher would find a protected one. A foul ball hit by Gus Suhr struck and injured her. She sued not only the club but Suhr,''Injuries'', at 199 the first reported instance in which a plaintiff named a batter as a defendant in addition to the team in a foul ball tort, arguing that since she had requested a protected seat she had not voluntarily assumed the risk of the injury that befell her.

At trial the judge granted the team's motion for a directed verdict in their favor after Quinn presented her case. On appeal the court took note that while protected seats were available elsewhere in the grandstand, she had nonetheless insisted on sitting near first base, and upheld the ruling, saying that she had temporarily assumed the risk. The California Supreme Court agreed and saw fit to reprint the entire appellate opinion.

A 1930 incident concerned a ball hit fairly, though not during the actual game. The plaintiff went to a game in New Orleans

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