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,^[6] 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.^[7]

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.^[7]

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.^[7]

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.^[6] 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.^[8]

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.^[9]

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.^[9]

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.^[10] The Massachusetts Supreme Judicial Court accepted Indermaur as precedent two years later in a similar case of a ship damaged by a submerged rock,^[11] and it would eventually be so recognized by the courts of 26 states^[12] and the U.S. Supreme Court.^[13]

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.^[14] 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.^[9]

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.^[9]

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 [they] knew 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.^{[lower-alpha 1][9]}

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.^[15]

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:

It is knowledge common to all that in these games [of baseball] hard balls are thrown and batted with great swiftness; that they are liable to be muffed or batted or thrown outside the lines of the diamond, and visitors standing in position that may be reached by such balls have voluntarily placed themselves there with knowledge of the situation, and may be held to assume the risk.^[16]

Establishment of the Baseball Rule

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.^{[lower-alpha 4][24][22]}

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.^[25][22]

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 150-foot (46 m) 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 ($52,000 in today's dollars^[18]), 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.^[26][23]

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.^[27] She sued not only the club but Suhr,^[28] the first reported instance in which a plaintiff named a batter as a defendant^{[lower-alpha 5]} 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.^[27]

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.^[27]

A 1930 incident concerned a ball hit fairly, though not during the actual game. The plaintiff went to a game in New Orleans and bought a ticket to the bleachers, 158 feet (48 m) from home plate and protected by a five-foot-high (1.5 m) screen at field level. While walking to his seat before the game, he was hit by a ball from batting practice, to which he had not paid attention, and his jaw was broken. The following year the Louisiana Supreme Court upheld a judgement for the team, finding the case fundamentally similar to Crane, with the plaintiff's inattention to the game similarly constituting contributory negligence and the team having satisfied its duty as the grandstand was already properly screened.^[30][31]

Mid-20th century evolution

In 1942, when deciding Hudson v. Kansas City Baseball Club, which held that a plaintiff asserting that he had believed that a reserved seat he bought a ticket for was protected was not sufficiently different from other cases as to warrant an exception to the rule, the Missouri Supreme Court noted that Crane and Edling "have become leading cases throughout the country" in torts related to foul ball injuries.^[38]

The following year a spectator struck in the abdomen by a foul at a 1941 Columbus Red Birds game, one of the earliest to be played at night, argued that the team should have provided sufficient illumination for those in unprotected seating, as he was that night, to be able to see the ball should it come into the stands, appealed the directed verdict for the team. The Ohio Court of Appeals divided, with two of the three judges declining to distinguish night games. "If the risk was greater due to the fact that it was a night game played under artificial lights, by the same token the plaintiff was under greater obligation to protect himself by seeking a position of safety behind screens." The dissenting judge argued that that was a factual question a jury should have been allowed to decide, saying "it would be a dangerous policy for the law to pronounce a principle of immunity to ball clubs against ordinary care as related to the construction of its stands or the location or the placing of equipment which has to do with the safety of its patrons."^[39]

An appeals court in neighboring Indiana later that year also declined to distinguish an injury resulting from a fellow spectator's attempt to throw the foul back on the field, holding that that too was part of the game. "The danger of a ball thrown by a spectator toward the playing field while play is in session seems to us to be an ordinary hazard of the game" wrote the court in Emhardt v. Perry Stadium, noting also that the plaintiff had testified she and her husband had regularly attended games at the park for four years prior to the 1937 incident. It affirmed summary judgement for the defendant team and park.^[40]

Since Brisson had specified the terms under which teams needed to provide screening, plaintiffs seeking to recover began basing their challenges on their lack of knowledge of the risks. These cases generally involved women who had accompanied their husbands or sons to the ballpark. The first such case had been decided the year before, when a Texas appeals court heard Keys v. Alamo City Baseball Co.. Keys had taken her son to a Texas League game in San Antonio, where they both sat in unprotected seats far from the backstop. During the fifth or sixth inning, she was struck in the chest by a foul ball her son had ducked while she had been talking to a friend seated several rows behind her.^[41]

To overcome the team's assumption of risk defense, she argued that she was not that familiar with the game, having only attended one other baseball contest several years earlier. While it found the team partially negligent in that the usher who had directed her and her son to the seats did not warn them there was no protection there from foul balls, the court disagreed with claim of ignorance of the hazard, noting that the record showed that her son, aged 14, had gone to other games at the park and often played or threw baseballs in and around the home, suggesting "he was a baseball 'fan', as is nearly every normal American boy." Even if Keys had not taken note of this, the court added, she had been at the game for long enough to see, as her son had pointed out to her, that quite a few foul balls go into the stands.^[41]

In yet another case from Kansas City, brought by a woman who moved with her son to unprotected seats at a 1947 game on the usher's apparent assurance that they were safe only to be hospitalized after the ensuing injury, the Missouri Supreme Court called the dangers of being struck by a foul ball "open and obvious to any one who possesses normal powers of observation. A knowledge of the rules or strategy of the game is not necessary to a realization of such hazard."^{[42][lower-alpha 6]}

First major league foul ball death

In 1970, for the first time, a spectator died of injuries from a foul ball at a major league game.^{[lower-alpha 7]} Alan Fish, 14, went to the Los Angeles Dodgers May 16 home game at Dodger Stadium against the San Francisco Giants with other boys from his recreational program and the program director, where they sat in the second row at field level along the first base line. A Manny Mota foul hit Fish on the back of the head, above his ear, in the bottom of the third.^[45]

Fish initially lost consciousness, but regained it after a minute and appeared to have recovered completely by the end of the game. However, on his ride home he began experiencing dizziness, and by the time he returned his parents took him to three hospitals in order to find one that would treat him. His condition deteriorated and surgery could not be done; Fish died after being taken off life support three days later.^[45]

The Fishes brought suit against the Dodgers, the medical facilities and the first physician to see their son, asking $1 million in damages. They alleged the team had been negligent in designing and operating the stadium, and along with the other defendants had been negligent in treating Alan. The trial judge disallowed the first count against the Dodgers, and before trial the Fishes dropped suit against the medical facilities. When it finally came to trial in 1973, the jury initially deadlocked, but after the judge pressured them to keep deliberating, they found for the defendants.^[45] Three years later an appeals court reversed the trial court on the grounds of a jury instruction that should have been given but was not.^[46]

1970s-80s: Comparative negligence

With plaintiffs now effectively denied the opportunity to recover based on their own level of knowledge of the game, lawyers began adding the claim that teams were negligent in failing to warn spectators about the dangers of foul balls. Many states had reformed their tort laws, with courts and/or legislatures embracing the newer doctrine of comparative negligence, assumption of risk and contributory negligence, the pillars of the Baseball Rule in Crane, were no longer absolute defenses and a plaintiff whose own negligence had contributed to their injury could still recover, albeit less than what they had demanded, as long as they were found to be less than 50 percent at fault.^[47]

These cases left the Baseball Rule intact; courts in California, New York and Texas wrote influential rulings declining to revisit it, although not without some skepticism, and an outright dissent in New York. These favorable verdicts notwithstanding, teams did begin to take some steps to warn fans of the danger from foul balls. Waivers were printed on the back of tickets,^[48] and teams began having announcements read over the park's public address system reminding fans to stay alert at any time balls were in use on the field, not just during play.^[49]

In declining to revisit the Baseball Rule without contributory negligence and assumption of risk as absolute defenses to suits over foul ball injuries, courts revised the duty of care owed by teams to spectators. Crane had stated that it arose out of reasonable care,^[2] but the decisions of the 1980s held that a team owed either a limited duty or no duty at all to spectators beyond that established by the Baseball Rule.^[50]

1990s–present: Reconsideration

In 1992 appeals courts in Chicago, hearing the cases of two spectators who had been injured at games of both of the city's MLB teams, showed less deference to the Baseball Rule than courts previously had. The state legislature responded by codifying the rule into statute.^[57] In the 21st century, courts in Idaho, Indiana, and New Mexico declined to adopt it, although in the latter instance that state's Supreme Court overruled the decision.^[58]

Injury to non-spectating bystander

Courts have strictly adhered to the Baseball Rule, but they have almost always limited its applicability to spectators watching the game or walking through viewing areas, holding that only that activity gives rise to the assumed risk of foul ball injury. The first plaintiff to recover after Edling was a young Wisconsin girl who was hit in the face while her mother was adjusting her dress along a highway about 90 feet (27 m) from a baseball diamond at a park operated by the local trolley company; the family was not watching the game. "There can be no serious claim that the respondent was guilty of contributory negligence, as she was on the highway and entirely ignorant of her danger", the Wisconsin Supreme Court held in 1925 as it affirmed a $2,000 ($35,000 in today's dollars^[18])^[28] jury verdict in her favor.^[73]

Batting practice

Another 1925 case from the Midwest addressed an injury arising from batting practice, resulting in a change in procedure for that aspect of the pregame. The plaintiff in Cincinnati Base Ball Co. v. Eno was attending a Cincinnati Reds twi-night doubleheader four years earlier with her father; during batting practice between the games, which at the time consisted of several groups of players scattered around the field, she and her father went closer to the field for a look at the players practicing there, just 15–25 feet (4.6–7.6 m) away,^[74] a foul broke her jaw. The Ohio Supreme Court affirmed an appellate ruling that reversed the trial court's directed verdict for the team, distinguishing the case from Crane and its progeny by noting that multiple balls were in play during batting practice and spectators could not reasonably be expected to keep track of all of them.^{[75][lower-alpha 9]} As a result of the case, the Reds and other professional teams began holding batting practice with only one batter at a time, swinging from home plate.^{[lower-alpha 10][79]}

Lost bats

The Baseball Rule has not been extended to cover injuries from lost bats that go into the stands. In 1938 a California appeals court considered the case of Martha Ratcliff, who had been walking down the aisle to her protected seat at a San Diego Padres Pacific Coast League game during batting practice when struck by a player's bat, which had slipped from his grip 80 feet (24 m) away. She prevailed at trial and was awarded $2,000 by the jury, a verdict sustained on appeal, since the evidence showed that bats had gone into the stands before and the court held that "[i]t was a question for the jury whether such an accident as this could have been reasonably anticipated and we think the evidence is sufficient to sustain their finding upon that question."^[80]

Thrown balls

Spectators away from seating area

Mascot antics

Jasper v. Chicago National League Ball Club

After the passage of the Illinois statute, James Jasper brought suit against the Cubs over a foul ball injury he claimed could have been prevented by a screen that had been removed in 1992 when the team installed skyboxes on the upper deck of Wrigley Field behind home plate. He asked the court to also declare the statute violated both the Equal Protection Clause of the United States Constitution and a provision of the state constitution that forbids the legislature from conferring a special benefit or exclusive privilege without a good public policy reason. Other sports, Jasper noted, did not get the same degree of immunity that the Baseball Rule, now codified into law, offered teams in that sport; he also argued it benefited only for-profit teams since other statutes limited the liability of non-profit park owners.^[106]

The trial court granted the Cubs' motion for dismissal of the constitutional claims. On Jasper's appeal, the court found the statute constitutional. "[T]he sport of baseball does have unique characteristics that would reasonably prompt a legislature to enact limited liability legislation", it wrote, citing a similar case where the state's Supreme Court had upheld a law limiting the liability of landholders for injuries to snowmobilers on their property on the grounds that that recreational activity, too, had inherent dangers that property owners could not reasonably be expected to completely control. The court also rejected Jasper's claim that the statute's exclusion of golf courses could not be considered as he had not introduced any evidence suggesting a similar risk of injury from wayward golf balls; lastly it cited earlier cases in support of its dismissal of Jasper's contention that since other laws protected non-profit facility operators the legislature had only meant to protect the Cubs and White Sox:

The Baseball Act, itself, does not carve out a class of profit-making parks for a special benefit, but applies the same limited liability to all of them. Even if the Act applied only to parks that make a profit from baseball, plaintiff cites nothing to support the argument that encouraging a popular recreational activity ceases to be a legitimate state interest when the provider is making a profit.^[106]

Ice hockey

Like baseball, hockey is played with a hard object that can leave the playing area and go into the stands at high speeds. As a result of this, rinks today have protective plexiglass shielding atop the boards. And like baseball, that shielding is higher in the areas where pucks are most likely to go into the stands: behind the goals. But unlike baseball, the gameplay is more flowing and continuous and requires fans to keep their eyes on a puck moving up and down the rink which may be difficult to see, much less anticipate.^[108]

Hockey was first played in the United States in the 1890s; professional leagues had formed within two decades and the Boston Bruins, the first American team in the National Hockey League, began playing in 1924; on lower levels the sport was primarily played in Northeastern and Midwestern states with cold winters. Lawsuits over injuries from pucks leaving the rink were first reported in the mid-1930s.^[107]

Since hockey was less established in the United States than baseball, courts of that era were willing as they had not been in the latter instance to consider a spectator's degree of knowledge of the sport, or lack thereof, as a factor. This yielded different holdings in different states. In the first two cases of hockey puck injuries considered by New York courts in 1935, the Baseball Rule cases in existence at the time were cited as precedent to hold that hockey teams or rink operators had no duty to screen all the seats, just enough for those who wanted them, and that "[i]t is common knowledge that the puck may leave the ice when the players are shooting for a goal."^[109][110]

However, the Supreme Court of neighboring Massachusetts upheld a verdict the following year for a woman struck by a puck at Boston Garden, since it was the first hockey game she had attended and the usher who escorted her to her seat at center ice had not warned her that even with three vertical feet (1 m) of glass between her and the rink pucks could still come into the stands.^[111] Four years later the same court declined to disturb a jury's verdict in favor of a man who was injured by a puck as he was walking from his seat to use the bathroom. The defendant had argued for contributory negligence, but, the court said, the degree to which the accident could have been anticipated was a factual finding properly submitted to the jury.^[112]

Citing the relative novelty of the sport, which had only been played in California for 12 years at that time, a 1939 appeals court in that state declined to apply the Baseball Rule to hockey in Thurman v. Ice Palace. The plaintiff had attended an intramural University of Southern California hockey game at the defendant arena, where wire screens had been installed at the ends but not along the sides, where Thurman was sitting when a puck hit her in the mouth. Through her father, she sued the arena, the student organization that sponsored the game and all its members individually. The trial ended in a directed verdict for all the defendants, and she appealed.^[113]

The appeals court affirmed the individual defendants' motions for dismissal, but reversed the directed verdict for the entities. Rejecting both the New York courts' decisions from four years earlier, as well as the defendants' reliance on Quinn, the court distinguished hockey from baseball by noting that in the former sport, the puck is "ordinarily batted along the ice", so spectators unfamiliar with the game, like Thurman, would not expect it to become airborne. Therefore:

The rule which has apparently uniformly been applied to baseball cases is, we believe, inapplicable to ice hockey games, for the reason that the average person of ordinary intelligence in this country is familiar with the game of baseball and it is reasonable to presume that such person appreciates the risk of being hit by a pitched or batted ball without being specifically warned of such danger. Hence a spectator at this nationally known game may ordinarily be held to assume such risk. However, the average person does not have the same knowledge respecting ice hockey or the risk of being hit by a flying puck while observing such a game.^{[114][lower-alpha 12]}

A Pennsylvania court echoed Thurman's reasoning in letting a verdict in favor of another woman who was injured at her first hockey game stand. "The argument is made that this case is analogous to a spectator at a baseball game", wrote a Court of Common Pleas judge in 1952's Schwilm v. Pennsylvania Sports, alluding to many of the other cases without citing any. Had the plaintiff been sitting on the side of the rink the court would have applied the same principle as the Baseball Rule and granted the defense request for judgment notwithstanding verdict, but since she was sitting at the end, where the team had raised the stands at Pittsburgh's Duquesne Gardens to a higher level without similarly making the screens higher, and had no understanding that pucks can go into the stands before one hit her in the head, the jury had properly found that the team had been negligent in its duties to spectators.^[117]

Prior to that case the consensus had been changing. Five years before Schwilm, in Modec v. City of Eveleth, the Minnesota Supreme Court upheld a trial court's decision to set aside a $2,500 verdict won by a plaintiff from the city after he was injured at a municipally owned rink leased to a private operator. On appeal, the plaintiff had cited the cases from Massachusetts and other states where juries had been allowed to consider whether a plaintiff unfamiliar with hockey had been properly advised of the dangers. But the court distinguished those states from Minnesota, where the sport had been widely popular for a long time: "Hockey is played to such an extent in this region and its risks are so well known to the general public that as to the question before us there is no difference in fact between the two games so far as liability for flying baseballs and pucks is involved." Per its holdings in Wells and Brisson, it affirmed the trial court.^[118]

An Illinois court still distinguished the two sports in the 1981 case of Riley v. Chicago Cougars Hockey Club. The plaintiff had been sitting in the front row of the upper deck at a 1974 game of the World Hockey Association (WHA) Cougars when a slap shot was deflected upwards and struck him, knocking him unconscious and causing a Jacksonian seizure that left a permanent brain lesion resulting in occasional epileptic seizures. He sued both the league and the team, winning a $90,000 verdict from the jury. It was affirmed on appeal; the defense, citing Maytnier, had asked the court to apply the Baseball Rule to hockey but it declined: "We do not believe that the general nonliability rule that is usually applied in baseball cases is necessarily applicable in hockey cases, because there are fundamental differences in the way baseball and hockey are played and the dangers incident to the games."^[119]

In the later years of the 20th century, NHL attendance and interest grew as more games were broadcast and the league expanded.^[107] A half-century after the Minnesota court's decision in the Eveleth case, an appeals court in neighboring Wisconsin followed the trial court in extending the Baseball Rule (in the process making one of the earliest judicial references to it as such) to hockey in affirming a grant of summary judgement in favor of the Milwaukee Admirals, saying the plaintiff's admitted knowledge of hockey made her contributorily negligent enough to bar recovery even under comparative negligence.^[120] Courts in Pennsylvania^[121] and California made similar holdings. In the latter, the court noted, in the half-century since Thurman, "professional ice hockey has grown in popularity both in California and nationally. In the present case, it is undisputed that ice hockey spectators face a known risk of being hit by a flying puck."^[122]

The first years of the 21st century saw the first (and as of 2022^[update], only) fatal hockey puck injury at an NHL game. Brittanie Cecil, 13, was watching a Columbus Blue Jackets game at Nationwide Arena on March 16, 2002, from behind the goal, when she was struck in the temple by a deflected slap shot. Initially she appeared have suffered only a cut, but walked to a first-aid station and was taken from there to the hospital, where after first improving her condition deteriorated due to a torn vertebral artery that had not been discovered, leading to her death two days after the injury.^[123]

Her parents sued the Blue Jackets and other parties; they were eventually able to settle out of court for $1.2 million. League commissioner Gary Bettman ordered all NHL teams to put higher netting behind their arenas' goals.^[124]

Golf

Cases involving injury from errant golf balls, which are smaller than baseballs or hockey pucks but are likewise very hard and travel at high speeds, account for half of all reported golf-related tort actions.^[125] Most, however, are between golfers themselves,^[126] among whom different standards of care apply, or to bystanders off the course.^[127] In the 1970s and '80s, several cases involving injuries to spectators who paid to attend golf tournaments or other events reached appeals courts. One commentator suggests cases of this type, analogous to baseball, are much rarer in golf since professional players of that sport "tend to be able to do what the average Joe cannot—consistently hit golf shots."^[126]

Some of the situations that gave rise to the injuries argued similar reasons to Baseball Rule cases as to why golf courses or sponsoring organizations should be held liable. While waiting in line at a concession stand between fairways during the 1973 Western Open, played at the Chicago-area Midlothian Country Club, Alice Duffy was struck in the right eye, blinding her. Her suit alleged that the country club had failed to exclude spectators from the concession stand area, which she claimed had a higher risk of injury that the club was aware of.^[128]

The trial court granted summary judgement to the defendants; Duffy appealed, arguing a triable issue of fact existed. The appeals court agreed with her and reversed. Among the cases it relied on was Maytnier, which it held to similarly deny the contractual assumption of risk defense and require that the defense argue more than just the plaintiff's awareness of a defect but the plaintiff's specific knowledge of that defect.^[129] On retrial the jury found for Duffy and awarded her almost $450,000, a verdict affirmed after the club's appeal.^[130]

Canada

Liability for injuries to spectators from projectiles leaving the playing area in Canada has long been controlled by a case arising from a hockey puck injury.^[132] In 1934's Elliott v. Amphitheatre Ltd., the Court of King's Bench of Manitoba, after reviewing many of the precedent American baseball cases, denied recovery on the grounds of assumption of risk: "The proprietor is held not to be an insurer and spectators assume the risk peculiar to that form of amusement."^[133] It was also one of the authorities cited by the Minnesota Supreme Court in Modec;^[118] but a decade earlier the Rhode Island Supreme Court, asked to consider Elliott as precedent by a defendant hockey rink, distinguished it from the one before it, since Elliott had testified to having watched many hockey games whereas the plaintiff in the case before it was attending her first hockey game and the Manitoba court had pointed to Elliott's familiarity as a reason for its decision.^[134]

Japan

Quick Facts External videos ...

External videos
Foul Balls in Japan: Real Sports Bonus Clip from HBO, showing foul ball protection in Japan's Tokyo Dome

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In all home stadiums of Nippon Professional Baseball teams, netting protecting the closest seats to the field extends all the way to the foul poles. When a foul ball gets over it, ushers point to it with a loud whistling device to alert fans, and immediately check on anyone who appears to have made contact with the ball. Signs at the entrances to sections remind fans of the danger, and animated video clips warning fans to watch for fouls are regularly played on the scoreboard;^[135] tickets also have waivers printed on the back as they do in the U.S.^[136]

The Tokyo Dome, home of the popular Yomiuri Giants, includes one section without netting. Spectators pay extra for these seats, known as "excitement" seats. A glove and helmet is provided with each one;^[135] however many of those who sit in those seats do not use them.^[136]

Despite these protections, foul balls do go into the stands and injure fans, who sometimes sue. In 2015, a woman blinded in one eye by a foul ball at a Nippon Ham Fighters game in the Sapporo Dome won a ¥42 million (just under US$380,000) verdict against the team. The Fighters responded by adding a warning horn to the ushers' whistles.^[136]

Outdatedness

In a number of the Baseball Rule cases, particularly the more recent ones, judges, first in dissents such as Akins^[53] and Rudnick,^[54] and later in the Crespin^[67] and Rountree majorities,^[69] rejected the Baseball Rule as an artifact of the tort-law regime that prevailed before comparative negligence, when assumption of risk and contributory negligence were absolute bars to a plaintiff's recovery, and a reminder of why that transition was made in the first place.^[53] But some also recognized that baseball, as well, had changed considerably since then and there was no reason for the law to sentimentalize the sport.^[54]

Bob Gorman, coauthor of Death at the Ballpark, notes on his blog that Crane was decided during an era of baseball now known as the dead ball era, when games were generally low-scoring and teams relied generally on the small ball strategy of getting singles to advance their runners along the bases and get them in scoring positions. Home runs were rare and so were foul balls hit into the stands as batters did not regularly swing for the fences. The same ball could be used for the entire game, and often was. In 1918, a newer, harder ball was introduced, and batters began hitting home runs more frequently.^[138]

The general admission policy under which Crane bought his ticket has also long vanished, replaced by reserved seating, often for an entire season, in which case a spectator could not move to a protected section even when those seats are empty. And the price of protected seating itself has risen far faster than inflation: single-game tickets for seats behind home plate and the backstop today cost in the $150–300 range, more than 10 times what Crane could have paid for a protected seat in 1911.^[139]

Changes in gameplay and presentation

In a 2018 William and Mary Law Review article calling on courts to modify or even abolish the Baseball Rule, authors Nathaniel Grow and Zachary Flagel took note of how the game has changed even since the end of the dead ball era. Pitchers today throw the ball much harder, and batters likewise have improved their physical training and consequently their hitting power;^[140] it was estimated that the Todd Frazier foul which injured the young girl at Yankee Stadium was traveling at 105 miles per hour (169 km/h) when it struck her.^[141] At those speeds, spectators have less than half a second to react in the time it takes a ball to reach the stands, barely more than the quarter-second average human reaction time to visual stimuli.^[140] In 2004, the Massachusetts Appeals Court noted the testimony of a plaintiff's expert witness, an engineering professor who calculated that a woman with no baseball familiarity who suffered permanent facial injuries from a foul that hit her at a Boston Red Sox game had little more than a second from the time the ball was hit to react to it, although it upheld summary judgement for the team per Massachusetts' earlier acceptance of the Baseball Rule.^[142]

Grow and Flagler also calculated that early 21st century spectators are closer to the field of play than their counterparts of previous eras. The advent of retro-classic ballparks in the mold of Baltimore's Oriole Park at Camden Yards accelerated a trend of putting spectators closer to the action.^{[lower-alpha 13]} Backstops are now 15 feet (4.6 m) closer to home plate than they were in the mid-20th century, and the amount of overall foul territory has declined 21 percent since 1920, shortly after the Baseball Rule was established, suggesting spectators' ability to react to a foul has been correspondingly attenuated. Most of this decline has occurred since the early 1990s.^[144]

As the cases involving mascot antics attest, spectators are offered a greater degree of distractions. In the past, spectators' attention, as it was in Keys,^[41] might be diverted from the action on the field only by socializing with those seated nearby. "While fans of yesteryear could be held responsible for their own assumption of risk associated with being hit by a projectile leaving the field," wrote the authors of a 2002 Marquette Sports Law Review article, "such a finding was predicated on the fact that the injured fan was watching the game rather than turning his attention away from the game."^[145]

But, "baseball games today are increasingly marketed as multifaceted entertainment experiences, offering spectators a variety of additional stimuli potentially distracting their attention from the action on the field", Grow and Flagler write. In addition to the mascots, increasingly sophisticated scoreboards run detailed video graphics with advertisements and scores and video highlights of games being played elsewhere. Ballparks also now offer free Wi-Fi, encouraging fans to use their smartphones to interact with players via social media during games, or order food for later pickup.^[146]

Improvements in pitching, such as better conditioning and an increased reliance on specialist relief pitchers, have led to an increase in foul balls; in 2017 the number of foul balls exceeded balls put in play for the first time, according to FiveThirtyEight. Most of those foul balls have gone into the stands; the website attributes this development to the shrinkage of foul territory on the playing field.^[147] In 2014 Bloomberg News estimated that there were, on average, 1,750 foul ball injuries at MLB parks every season; meaning fans get hit by foul balls more than batters get hit by a pitch.^[5]

Incompatibility with law and economics

Grow and Flagel note that the Baseball Rule, unlike many other areas of tort law, has not been reexamined under law and economics, a movement that began with Guido Calabresi's 1970 book The Cost of Accidents. The goal in torts under law and economics is for most liability to rest with the party that can avoid the most risk at the least cost. "By doing so," they write, "courts can allocate liability in a way that increases the likelihood the parties will adopt the optimal level of precaution necessary in a given case, thus minimizing the overall social cost of accidents."^[148]

It would cost MLB teams, which collectively see around $10 billion a year in revenue, mere thousands and a few days to install 60 feet (18 m) more of netting in thinner sizes which are less visually obstructive, Grow and Flagel argue. Injured spectators, on the other hand, 7.5 percent of whom require hospitalization, bear the costs of their own medical care (or their insurers) if they cannot recover in court. Those have reached $150,000 in some cases.^[148]

Additional screening, Grow and Flagel allow, will have some additional costs to teams beyond the installation.^[148] As many of the Baseball Rule cases have noted, the unprotected seats offer fans not just an unobstructed view but a chance to catch and keep a foul ball,^[54][58] which teams have permitted fans to do since 1921.^[5] Some may decide not to attend if that opportunity is denied them; however Grow and Flagel believe fans will adjust. The seats behind home plate and thus the backstop, they note, are typically the most expensive at any ballpark, "suggest[ing] that fans will continue to prioritize proximity to the field over an unobstructed view, and will adjust to the presence of additional netting.".^[148]

Fans, by contrast, have three options to reduce their risk: sit in a protected seat, sit in a distant area of the stadium beyond reach of foul balls, or not attend the game at all. Grow and Flagel do not think these options are optimal. As previously noted, it is often utterly impossible or costly to obtain tickets behind screening. Fans choosing to sit in the upper decks will make the experience of watching games less desirable, and not going to games at all would cost teams more than the netting would. "The insights provided by the law-and-economics movement strongly suggest that the Baseball Rule currently fails to impose liability on the lowest cost and best risk avoider—the team itself—in the most efficient and socially optimal manner", Grow and Flagel write.^[148]

Grow and Flagel argue that courts should abandon the Baseball Rule, or seriously modify it. They recommend subjecting teams to a strict liability standard for spectator injuries, which they admit might increase ticket prices but could be balanced by allowing some consideration of a spectator's own negligence, such as intoxication or making a deliberate attempt to catch the ball. Should courts or legislatures decline to do so, they could then expand the definition of the most dangerous area of the field, which most courts, along with the New Jersey statute enacted in response to Maisonave, have historically defined as the area behind home plate, without any real evidence. "The fact that MLB itself has officially encouraged its teams to extend their protective netting beyond just the area immediately behind home plate," they observe, "strongly suggests that the Baseball Rule, as traditionally applied, no longer imposes a reasonable level of care upon professional baseball teams."^[149]

Courts could also hold that teams have a duty to warn fans about the dangers of foul balls entering the stands to a greater extent than they currently do, contrary to the common law that landowners generally do not have to, Grow and Flagel write. While spectators may be aware that foul balls do enter the stands, they may be under the impression those are pop flies, more easily avoidable than the line drive fouls that have caused injuries and deaths, and they may overestimate their ability to react to the latter. While mandatory warnings of hazards have been criticized as ineffectual, courts have been receptive to them in situations where the risk of distraction is high. Grow and Flagel suggest that if warnings were mandated, teams would have an incentive to experiment and find the most effective ways of delivering them.^[150]

Defenses and responses

The Baseball Rule has its defenders. "The fact that the limited duty rule has its origins in the earliest days of baseball does not mean it's anachronistic or unfair" writes David Tavella. Without it, he believes teams would have no choice but to screen off the entire field, depriving most fans of a chance to catch a foul or connect with the players. In particular, he criticizes the New Mexico appeals court's Crespin decision, which had not yet been overruled at the time of his writing, as going too far in leaving all determinations of duty to the jury, which could lead to inconsistent results. Were the Baseball Rule to be modified, he believes, Maisonave is a more sensible standard, in his opinion, since it limits the rule's application to spectators engaged in the game from the seating area and its immediate vicinity.^[151]

Tavella also dismisses complaints about the reliance on assumption of risk. "The [criticisms] generally are that the rule is old, so it must be changed." He is dubious of plaintiffs who testify that their baseball knowledge was so limited that they had no idea balls would leave the field of play, saying that danger should be obvious to a first-time spectator.^[152] Tavella believes that a combination of the limited-duty rule established in Maisonave, the assumption of risk defense, and a general negligence standard would best balance the interests of teams and spectators.^[153]

The cases involving mascot antics have come in for specific criticism. Ross Freeman, a law student at Missouri at the time, argued in 2015 that Coomer in particular was wrongly decided for both legal and policy reasons. On a legal basis, he noted, the state did not recognize different degrees of negligence. He saw even stronger policy reasons, believing the decision would adversely affect the state's MLB teams.^[154]

Citing a 2013 article in The Wall Street Journal^[155] that found the total actual gameplay in MLB games averaged about 18 minutes out of the three hours it usually took to play, Freeman argued that mascots and other in-stadium entertainment were now inextricably part of the game, contrary to the state supreme court's holding:

Teams like the Royals know that some fans come to the games solely for the ballpark food and other fan interactions ... Regardless of how ballpark owners respond, Coomer incentivizes ballpark owners to reduce or eliminate fan interactions with ballpark employees or mascots ... The court took a very narrow approach to why spectators attend baseball games in person. The court's assumption does not account for the possibility that some fans attend games not only to witness the game of baseball, but also for the total in-stadium experience of attending an MLB game. MLB spectators not only desire fan interaction, but they expect fan interaction for the price of admission, rather than just attending the stadium to simply watch the game.^[154]

The court could also have distinguished Coomer from Lowe, the California precedent it relied on, Freeman wrote, by noting that Tremor's behavior in the latter case was not just negligent but recklessly so.^[156]

Garrett Broshuis, a former minor league player and baseball writer who has since become an attorney, makes similar arguments for both retaining the Baseball Rule and not applying it to objects tossed by mascots. In the former instance, he notes, in addition to other arguments, that stadium designers allow for it. In the latter, he sees little difference between the launched or thrown hot dogs and foul balls, as both are often equally desired. "So long as adequate care is taken in the selection of such souvenirs for tossing, these two attributes—spectator awareness and spectator desirability—dictate that the baseball rule should extend to souvenirs thrown into the stands."^[157]