May 2020 - Parks & Recreation - 37

have been in response to " developments during the past 25 years that
have increased the risk of being injured by foul balls at professional
baseball games. " Such developments have included " changes in
stadium construction that bring
spectators closer to the playing
field, elevated velocity of pitched
balls and increased distractions,
such as free Wi-Fi. "
The appeals court further noted
that Summer had cited in her complaint the views of " experienced
baseball professionals, " which favored " extending protective netting along the first- and third-base
lines " to " minimize the inherent
risk of being injured by a foul ball
without fundamentally changing
the game. "
In light of these recent developments, the appeals court would
allow Summer an opportunity to
amend her original complaint to
allege " U.S. Baseball had a duty to
ensure there was adequate protective netting at Blair Field on August
17, 2014. " Accordingly, in her negligence claim, Summer could claim
U.S. Baseball had " acted unreasonably " and breached the applicable
duty of care by " failing to provide
netting on the field level along the
first- and third-base lines at least
from home plate to the dugouts. "
The appeals court would then
determine whether the evidence
would support the allegations in the
amended complaint. In so doing,
the appeals court would have the
trial court reevaluate the amended
complaint to consider " the extent
of the stadium's existing netting,
the proximity of unprotected seats
to the playing field and the history
of previous injuries in the seating
area at issue. "

Open and Obvious Danger
In her negligence claim, Summer
had also alleged " U.S. Baseball was
aware of the inadequate nature of
the netting at Blair Field, yet failed
to warn her of the danger of being
struck by a foul ball where she was
seated. " In response, U.S. Baseball
had contended " that danger was
so obvious it had no duty to warn
Summer of the risk. " The appeals
court described the " open and obvious danger " rule as follows:
Generally, if a danger is so obvious that a person could reasonably
be expected to see it, the condition
itself serves as a warning, and
the landowner is under no further
duty to remedy or warn of the condition. In that situation, owners
and possessors of land are entitled
to assume others will " perceive the
obvious " and take action to avoid
the dangerous condition.
In response to U.S. Baseball's
open-and-obvious defense, Summer had argued " the nature of
the risk of injury had been concealed. " Specifically, she claimed
" the presence of some protective
netting misled her (as well as other reasonably prudent spectators)
into believing the unprotected seats
were outside the perceived zone of
danger with a high risk of injury
from foul balls. " In addition, Summer claimed the risk was not " open
and obvious, " because " the protective netting behind home plate was
unusually narrow and the spectator
seats atypically close to the field
of play. " Accordingly, Summer
maintained the dangers in the unprotected seating at Blair Field " are
noticeable only if the spectator has
expertise in mathematics, physics,
human factors, or stadium design. "
In the opinion of the appeals

court, these points cited by Summer were sufficient, if proven at
trial, to provide a legal basis for
liability. Accordingly, the appeals
court would require the trial court
to conduct further proceedings to
determine " whether the danger of
injury from foul balls in unprotected seating was sufficiently obvious
to relieve U.S. Baseball of its duty
to warn Summer of its existence. "

" U.S. Baseball was aware of the
inadequate nature of the netting
at Blair Field, yet failed to warn
her of the danger of being
struck by a foul ball where she
was seated. "
Conclusion
Having found a potential legal basis for liability under the circumstances of this particular case, the
appeals court ordered the trial
court to vacate its order which had
dismissed her liability claims as
" barred under the primary assumption of risk doctrine. " On remand,
the trial court would fully consider Summer's claims of negligence
and premises liability consistent
with the above described opinion
by the appeals court.
For further reading, check out
the article, " Majority 'Baseball
Rule' Limits Spectator Liability "
by James C. Kozlowski, Parks &
Recreation, May 2013, Vol. 48, Iss.
5 at cehdclass.gmu.edu/jkozlows/
lawarts/05MAY13.pdf.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate
Professor in the School of Sport, Recreation, and Tourism
Management at George Mason University (jkozlows@gmu.edu).
Webpage with link to law review articles archive (1982 to
present): mason.gmu.edu/~jkozlows.

PA R K S A N D R E C R E AT I O N .O R G | M AY 2 02 0 |

Parks & Recreation

May 2020 - Parks & Recreation

Table of Contents for the Digital Edition of May 2020 - Parks & Recreation