an Injuries Generally Considered “Part of the Game”

Person Receiving Aid Inside an Ambulance
In the aftermath of a serious injury to a fan at Fenway Park last week, spectators and legal experts have publicly asked whether the so-called “baseball rule” needs to be revised or thrown out. The “baseball rule,” adopted by courts about 100 years ago, absolves stadium owners and operators from liability for injuries to fans from errant balls or bats, provided the stadium has a “reasonable number” of seats that are behind protective screens or netting. Courts have almost universally applied the baseball rule to deny recovery to fans injured by foul balls or broken bats.

Owners assert that there is some assumption of risk that must be assumed by anyone attending a baseball game—that foul balls and broken bats are an unavoidable aspect of the game and that fans have a responsibility to pay attention, in order to minimize the risk of injury. They also point out that there are signs posted throughout most ball parks, advising fans of the potential dangers. Ticket stubs also put attendees on notice of the inherent risks. A court in Missouri in 2009 agreed with this position, calling the risk of injury to fans “an unavoidable—even desirable—part of the joy that comes with being close enough…to smell the new-mown grass.”

But many fans and legal authorities say the rule is outdated, particularly in light of the changes t the game over the last century:

Players are bigger and stronger than they were when the rule came into existence
Most players now use maple bats, which are harder than the ash that was predominant for most of the last century. The harder bat, combined with pitches that consistently travel at nearly 100 miles per hour, leaves fans less time to react, even if they are paying attention
Most newer ballparks put fans much closer to the action, and fewer parks have nets or screens, except immediately behind the plate

There are signs, though, that the baseball rule may be losing some of its power. A Massachusetts court ruled in favor of an injured fan in 2004, and the Idaho Supreme Court opted not to enforce the baseball rule in a 2013 decision involving a fan who lost an eye after being hit by a foul ball. Last year, an appellate court in Georgia refused to apply the rule in a case involving a 6-year-old girl who suffered a skull fracture from a foul ball at an Atlanta Braves game.
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The Obligation of a Property Owner to Provide Adequate Security

In New York, as in other states, the owner of residential or commercial property has a duty to take reasonable measures to minimize the risk of injury to anyone legally on the property. This duty extends to landlords, tenants and others who manage or have control of the premises. Though the common perception is that this requires that any physical hazards—broken steps, slippery floors, dangerous structures—be fixed or closed off, the duty also extends to the risk of injury when there is inadequate security at a building or on real property.

Inadequate security can take many forms, and often depends on a number of factors, such as location of the premises, as well as how the premises are used. For example, if a business or residence is in an area with a known reputation for crime, it will likely be considered reasonable that the owner, landlord or tenant take greater precautions to minimize the risk of injury. This may include additional lighting, restrictions to entry, or even the posting of a security guard.

If the type of business is one where persons may be isolated, such as a motel, it will be more reasonable to have a higher level of security than in an open area in a mall, where there will typically be many people around.

If you are injured in a mugging, you will have to show that the owner, landlord or tenant could have taken reasonable steps to prevent the mugging. There is no hard and fast rule for what will be considered “reasonable.” That determination is always left to a jury, and is based on the unique factual circumstances of each case.
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contact our office online or call us toll free at 888-519-6400. Your first consultation is free of charge.