May 2020 - Parks & Recreation - 34

L AW R EV I EW

primary assumption of risk doctrine has never relieved an operator
of its duty to take reasonable steps
to minimize inherent risks without
altering the nature of the activity " :
As a general rule, where an
operator can take a measure
that would increase safety and
minimize the risks of the activity without also altering the nature of the activity, the operator
is required to do so. " (Emphasis
of court)

Major Leagues
Expand Protection
On appeal, this California state
appeals court further indicated
it would consider the extent to
which a more " modern, practical
view of the importance of protective netting " for baseball spectators should reshape the traditional
" Baseball Rule, " which had limited " the responsibility of stadium
owners to minimize spectator in32

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juries from foul balls. "
As cited by the appeals court,
in the 1929 case of Murphy v.
Steeplechase Amusement Co., 250
N.Y. 479,166 N.E. 173, Benjamin Cardozo, chief justice of
the New York Supreme Court,
had described what has become
know as the " Baseball Rule, "
defining " a baseball fan's fundamental responsibility to protect
himself or herself from injury
from a foul ball. " According to
Cardozo: " One who takes part
in such a sport accepts the dangers that inhere in it so far as they
are obvious and necessary, just as
... a spectator at a ball game the
chance of contact with the ball. "
Under the traditional " Baseball
Rule, " courts in a majority of jurisdictions have held that " a stadium operator had a limited duty to
provide a screened area at the ball
park " only in the " zone of danger " ;
i.e., directly behind home plate

where spectators would be unable
to react in time to avoid being struck
by a speeding foul ball. Accordingly, contrary to Summer's argument,
the traditional Baseball Rule would
not require protective screening
down the baselines. Unlike the unavoidable risk of being struck by a
speeding foul ball directly behind
home plate, spectators down the
baselines would presumably have
time and opportunity, looking out
for their own safety, to avoid being
struck by a foul ball.
The state appeals court in this particular case acknowledged the traditional Baseball Rule had reflected
the majority " judicial view of fans'
accountability for their own protection from balls hit into the stands. "
However, in " sharp contrast " to the
traditional Baseball Rule applied
by courts over the past century, the
court noted Major League Baseball had recently decided to expand
spectator protection beyond a limited " zone of danger " directly behind
home plate:
[A]t Major League Baseball's
2019 winter meetings, Commissioner Rob Manfred announced
that all 30 major league teams
will expand the protective netting
in their stadiums " substantially
beyond the end of the dugout " for
the 2020 season and that seven or
eight stadiums will run netting all
the way to the foul poles.... Extended netting is also being installed in
many minor league ball parks.
In light of these recent developments, the question before the state
appeals court was whether the traditional legal duty of a ballpark operator to provide " adequate protective netting in a perceived zone of
danger behind home plate " should
be expanded to include " field-level
May 2020 - Parks & Recreation

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