Gil Fried on The Baseball Rule Redux

Gil Fried on The Baseball Rule Redux

(Editor”s note: In a recent article that appeared in Professional Sports and the Law, noted expert andUniversity of New Haven Professor Gil Fried, and Takao Ohashi, wrote an article about the baseball rule. What follows is an excerpt of that article)

Most of those familiar with sport law, especially the liability side, know about the “baseball rule.” The rule as applied by many courts for almost 100 years is that an owner or operator of a ballpark should not be held liable if a patron is hit by a projectile leaving the field if the owner/operator has provided enough screened seats for those who might demand such protected seats and if the most dangerous part(s) of the ballparks are protected. The law has faced challenges over the past couple years with some courts refusing to adopt the principal and using a basic negligence approach (such as assumption of risk). There currently is a class action suit against Major League Baseball (MLB), which faced a summary judgement decision in California last month based on jurisdictional issues with teams outside of California. The suit, examining what MLB is doing to protect fans, was also impacted by a recommendation by MLB before the start of the 2015-16 season to encourage teams to expand the amount of netting at ballparks.

Regardless of how that case will conclude, it is important to examine where we stand with the baseball rule in light of how the game has changed over the years. When the rule was first developed by courts- it was in the early 1900’s with some cases before 1920- the game was a lot different back then. People came to the games in suits and top hats. There were no mascots, scoreboards, Ferris wheels, outdoor pools, kid zones, and other distractions at the game. Nowadays, the players are stronger, the bats are better, the pitchers are stronger, fans are closer to the action, and some claim the ball is a lot livelier. Also, the fans have changed in terms of their viewing habits. Years ago fans were not burdened by live streaming, social media updates, and surfing the web. Yes, some fans kept score in the program, but were able to really watch the game and notice foul balls entering the stands. Teams/stadiums are enabling this activity and encouraging fans to be as engaged as possible with content and the team. Thus, the viewing patterns have changed and fans need enough protection to reflect the current state of the industry.

What do these changes mean? It means that maybe the baseball rule is not as appropriate as in years past. As an expert witness in probably 20 batted ball cases over the past 20 plus years, I have been a strong advocate, believe it or not, of a modified baseball rule. I feel that in certain areas of a stadium a fan should not be able to recover for being hit by a foul ball. However, there are locations where injured fans should recover- if the area was not safe. That is what I want to focus on in this article. The baseball rule requires a team/stadium to protect the most dangerous part of the stadium, but where is that?

As a college professor, we rely on research to identify possible concerns and solutions. Many teams/stadiums track incidents through their incident management software system. These systems track everything from broken seats to fan complaints and fan injuries. The data can be used to identify where fans are most likely to be injured and where the most frequent locations are for foul balls. Medical treatment records can also help shed light on such incidents. One of my peer reviewed articles several years ago examined data from fan injury reports at an MLB stadium, foul balls tracked at an MLB stadium, and foul ball locations at a minor league park. From these studies, as well as other research, we identified … .