1, 2, 3 Strikes … Watch Out!

It’s that time of year again.  A time when baseballs begin to sail through the air and evenings are filled with the aroma of hot dogs and a freshly mown infield.  Organ music fills the stands and the umpire screams, “Play ball!”  The sense of euphoria, however, can quickly be soured by a screaming line drive foul ball that some fan is unlucky enough to catch with his or her face.

The Indiana Court of Appeals decided South Shore Baseball, LLC v. DeJesus on February 15, 2013…just in time for this year’s baseball season.  In that case, the Plaintiff was struck in the head by a foul ball at a baseball game then sued the team owner for failing to prevent the injury.  While most stadiums provide some protection from foul balls, it would be nearly impossible to completely enclose the field.  Some would argue that it would also take away from the fan experience of the game.  The question becomes whether a member of the crowd should know about and comprehend the danger of a ball leaving the field of play.

The Plaintiff’s theory in South Shore Baseball was premises liability and negligence.  Under premises liability, all premises owners or possessors owe an invitee a duty to prevent injuries from dangers of which the invitee may not be aware.  This applies to owners or possessors of all types premises, each of which may pose its own unique dangers.

The Court in South Shore confirmed that because the risk of getting hit by a foul ball was danger of which an invitee should be aware, a spectator could not recover on a premises liability claim.  Judge Cale J. Bradford eloquently wrote in the opinion, “The risk of getting hit by a foul ball at a baseball game does not amount to an unreasonable risk of harm.  It is common knowledge that foul balls may leave the field of play and enter the stands…The risk of being hit, with a chance to catch the foul and keep the ball, is one of the exciting thrills of attendance at the game…”

While the Court of Appeals similarly found for the baseball team on the Plaintiff’s negligence claim, it appears that negligence would be the most likely theory of recovery if an injured fan was to recover in such a situation.  For now, when you are attending a baseball game, know that you will legally be held to know the danger of a foul ball.  When one comes your way, hopefully the game’s broadcaster will say, “Now therrrrre’s a lucky fan,” rather than, “Oooooh, that’s going to leave a mark!”

If you have questions or concerns about how to legally protect your business from potential premises liability or negligence claims, please contact any member of the KDDK Litigation & Trial Service practice team.

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