Baseball on Trial

Hot off the press, baseball is on trial. Not just baseball, but all sporting venues. Not just sporting venues, but anywhere you go to watch the action. Here’s the story…

Melky Cabrera, that colorful 29 year-old outfielder who faced a 50 game suspension related to a positive drug test, hit a line drive that landed the Atlanta Braves in the Georgia Court of Appeals. Bouncing off the head of an unwary six year old boy who suffered a cracked skull and traumatic brain injuries, the line drive raised an interesting and important legal issue. What responsibility does a sports team, or sports venue, have to protect those who attend the game?

The network buzz offers ample discussion of the case against the Atlanta Braves. What it does not offer is a question closer to home. What if the same injury occurred to a fan attending a home Mariner’s game? What would be the likely result?

Although the law of gastronomic jurisprudence is always potentially at work, the best insight is hindsight. Some years back, the Mariners faced a case in which a fan was hit by an errant pitch. Although the case resulted in an unreported decision, the law on which the case was decided offers a snapshot-in-time window as to how a future Court might rule.

The primary legal defense relied on a doctrine called “Assumption of the Risk”. Implied primary assumption of risk arises where a plaintiff impliedly consents (often in advance of any negligence by a defendant) to relieve the defendant of a duty regarding specific known and appreciated risks. Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 497, 834 P.2d 6 (1992). The doctrine serves as a complete bar to recovery when an injury results from a risk inherent in the activity in which the plaintiff was engaged.

For many decades, courts have required professional baseball stadiums to screen some seats. Generally, those are the high-priced seats behind home plate. Spectators may choose to buy tickets for those seats, or at a somewhat lower cost, assume the risks associated with sitting in unscreened areas. When they do so, they also assume the risk of being hit by a ball. See Leek v. Tacoma Baseball Club, Inc., 38 Wn.2d 362, 229 P.2d 329 (1951). One who participates in a sport, even as a spectator, assumes the risks that are inherent in the sport. To the extent a plaintiff is injured as a result of an inherent risk, the plaintiff is barred from recovering for injuries sustained.

But that is not the whole picture. Once a defendant establishes that the plaintiff assumed the risks, the defendant must also show that the plaintiff had full subjective understanding of the specific risk, and voluntarily chose to encounter the risk. Brown v. Stevens Pass, Inc., 97 Wn.App. 519, 523, 984 P.2d 448 (1999) (citing Kirk v. Washington State Univ., 109 Wn.2d 448, 453, 746 P.2d 285 (1987); see also W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 68 at 487 (5th ed.1984)).

The question is whether, at the time of the decision, the plaintiff actually and subjectively knew all facts that a reasonable person in the defendant’s shoes would know and disclose. Erie v. White, 92 Wn.App. 297, 303, 966 P.2d 342 (1998).

In this case, would a fan actually and subjectively know that a game involving hurled spherical missiles at high rates of speed (the faster the better), smashed by heavy sticks of wood such that the spheres fly great distances, know and understand that someone that was sitting in the path of flight might actually be hit?

Except in Washington and Colorado, where the adoption of laws that permit the inhaling of funny fumes are becoming trendy, the answer is intuitively obvious to the casual observer. We sit in the cheap seats because they are cheap. We sit in the cheap seats to catch fly balls, and foul balls, and whatever balls come our way. We even hope that balls will come our way. Why, then, should we cry “foul” when we miss the catch?

Gentle reader, support the Mariners. Support the Seahawks. Support your team of choice. But if you are not prepared to see the ball up close, stay home.

Copyright 2014 Gregory D. Lucas