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Injured Spectator vs The Chicago Cubs; Will This Be the Case That Establishes a New Rule?

By Alberto Bernabe on Monday, October 16th, 2017
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Readers of this blog probably saw the news that a baseball fan has sued the Chicago Cubs seeking compensation for the loss of sight in his left eye after he was hit in the eye during a Cubs game earlier this year.   The case has been filed as Loos v. Chicago Cubs Baseball Club.  Also, as readers of this blog probably know, the issue in the case will come down to whether the plaintiff can convince the court to hold that the Cubs had a duty to provide more protection to spectators than it already does.

Many in the media are claiming the case is “challenging” the “baseball rule,” but this can be misleading because it depends on what is meant by this so-called “rule.”

Let’s start at the beginning.  All personal injury claims are based on the notion that the defendant had a duty to do something and that his or her conduct violated that duty.  In the baseball game scenario, the argument is that the conduct of the baseball team (or whomever is in charge of the stadium) in not protecting the spectator from the risk of injury violated a duty to the spectator.

However, whether there is a duty in any case is a question of policy, which courts address by considering the relative importance of any number of competing policies or values.  In the baseball cases, for example, courts consider the level of risk involved, the ability of the spectators to protect themselves, the costs to the defendants to provide more protection and the negative effects on all spectators from having to deal with the added protections (ie, having to watch the game through nets).

Over time, many jurisdictions have adopted the position that defendants in such cases only have a limited duty to spectators.  And, again over time, it has come to be generally accepted that the duty is just to provide to provide warnings to all other spectators and netting to protect the spectators sitting in the most vulnerable positions (behind home plate and extending a certain distance along the first and third base lines).

In many of the cases that have addressed the issue, the question has also been discussed in the context of a defense of assumption of the risk, which, if successful, would result in a holding that the defendant will not be liable to a plaintiff if the plaintiff knowingly and voluntarily decided to expose himself or herself to a risk even if the risk could have been minimized or eliminated by the defendant.  Technically speaking, the issue is one of duty and not of a defense, but courts get the concepts confused all the time.

The so-called “baseball rule” that many in the media refer to is not really a “rule” per se, but a reference to the end result of the argument of the defendant (ie, that the defendant may escape liability), whether because the court finds the defendant did not owe a duty to the plaintiff or whether the court applies the doctrine of assumption of risk as a defense.

Yet, the media commentary is correct in suggesting that lawsuits like the one filed against the Cubs “challenge” the current state of the law.  In a jurisdiction where the so-called “baseball rule” has been adopted as part of the Common Law, spectator claims challenge not a rule per se, but the analysis that supports the argument that has resulted in allowing defendants to escape liability in the past.  In other words, these types of cases keep getting filed in an attempt to get the courts to change the analysis or to decide not to apply it given the circumstances.

It is quite acceptable and common for plaintiffs to ask courts to change established rules of law based on an allegation that “times have changed” and therefore that we should rethink how we approach a certain issue.   Plaintiffs may argue that the approach in baseball cases should be changed because, among other things, statistics show there are more injuries than in the past when the “baseball rule” was adopted, or that the cost of providing more protection to spectators is lower now, or that current fans are not as bothered by nets as they used to be or that there are more distractions during games which make it more difficult for fans to protect themselves, or simply that public attitude toward the issue has changed.  Also, the fact that the Major League Baseball Commissioner has suggested teams probably should provide more netting provides support for the plaintiff’s argument that the attitude toward the problem has changed.

In the end, like in all cases that ask a court to consider whether to recognize (or impose) a duty, the question usually comes down to a balancing of competing policies.  How do we balance the fact that spectators should be alert to the risks related to sitting so close to the field, the fact that the defendant charges what many consider to be an outrageous amount of money for those seats, the fact that people are willing to voluntarily pay that amount of money to sit close to the field, the fact that there is so little time to react to line drives (as opposed to pop-ups), the fact that there are so many distractions during the game, the fact that putting more netting will cost the defendants more money, which they probably will, in turn, try to recoup by charging the fans more for the tickets, the fact that some fans do not want netting because they say it interferes with the enjoyment of watching the game in person, and so on and so forth.

Obviously, the law is not static.  It changes over time to meet the needs of society.  Will “we” – all of us, baseball fans or not – be better off as a society if the law of torts is changed to strongly encourage baseball stadiums to provide more safety for the fans?  That is what courts have to consider when deciding cases brought by baseball spectators.

The case against the Cubs, however, is different in one important sense.  Here the “baseball rule” has been legislated.  In reaction to a similar lawsuit brought by a spectator at a White Sox game, the legislature enacted a specific statute limiting the possible liability of owners of baseball facilities.  It reads, in part:

The owner or operator of a baseball facility shall not be liable for any injury to the person or property of any person as a result of that person being hit by a ball or bat unless: (1) the person is situated behind a screen, backstop, or similar device at a baseball facility and the screen, backstop, or similar device is defective (in a manner other than in width or height) because of the negligence of the owner or operator of the baseball facility; or (2) the injury is caused by willful and wanton conduct, in connection with the game of baseball, of the owner or operator or any baseball player, coach or manager employed by the owner or operator.  (745 ILCS 38/10)

Thus, in Illinois, the issue is not just a matter of determining whether to recognize a duty as it would be in a jurisdiction where the so-called “baseball rule” was adopted by the Common Law.  Here, the plaintiff will have to argue that either the statute is invalid, or that the event that resulted in the injury falls within one of the exceptions.

Yet, it is possible the court will take the time to opine on whether the policy behind the statute is still justified.  Obviously, the court can’t repeal a statute, but maybe it will open the door for the eventual adoption of a new baseball rule.

Stay tuned.

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1 Comment

  • Corinne Morrissey

    My husband lost a case for the White Sox years ago, but was about to be hired to defend the Cubs in a similar case . . . The Illinois Statute requires willful and wanton conduct in order to recover, not mere negligence.

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