Double Down the Line: Two Bases or Duty of Care?

In the game of baseball, a double down the first or third base line can induce a number of differing emotions for fans and players alike. Did the double result in your team’s victory, or maybe defeat? Was the double a catalyst for an offense that was being out-matched by a pitcher who, up to that point, was dealing? Was the double so close to the base line that it was arguably a foul ball that the umpire mistakenly called fair?

What if the situation involves essentially doubling the amount of protective netting in areas of the baseball field that could be considered “high risk”? This will be a reality in every ballpark on the MLB’s 2018 Opening Day, as it was announced by Major League Baseball that “all 30 major-league ballparks will have protective netting extending to at least the far ends of both dugouts by…Opening Day.”[1] The Tampa Bay Rays and the Arizona Diamondbacks were the final two teams to announce their intention to implement these precautions on January 31st, 2018, and these announcements came one day before MLB Commissioner Rob Manfred was set to issue a mandate making this type of netting an MLB bylaw.[2]

In 2015, Major League Baseball recommended that teams “add netting, or some sort of protective barrier, to shield fans from balls and bats that sometimes go into the stands in all field-level seats between the near ends of both dugouts and within 70 feet of home plate.”[3] It was not a mandate, however many teams began implementing these safety precautions to their home ballparks.[4]

As injuries to MLB spectators began to occur more frequently in the past few seasons, the question has been raised as to who is liable for the injuries. This is a situation that has been governed by the “Baseball Rule” for over a century. The “Baseball Rule” imposes a duty of care on the MLB team to provide spectators with “reasonable protection in the form of screening behind home plate”, and any fans “who choose to view the game in an unscreened area assume the open and obvious risk of being struck by balls entering the stands in the ordinary course of play.”[5] The “Baseball Rule” only requires MLB teams to provide screened seats “for as many (fans) as may be reasonably expected to call for them on any ordinary occasion.”[6] The court in Blakeley v. White Star Line 118 NW 482 (S.Ct. 1908) stated that “it is knowledge common to all that in these games hard balls are thrown and batted with great swiftness…and visitors (watching) in (a) position that may be reached by such balls have voluntarily placed themselves there with knowledge of the situation.”[7] This statement was from the very early days of the “Baseball Rule”, and essentially is the court’s way of informing spectators that it is not the responsibility of the team to ask the spectators to watch out for baseballs at a baseball game. The courts have historically shown that they believe it is the responsibility of the fan to be aware of the potential for foul balls, and even baseball bats, to come in their vicinity, and the proximity from home plate of the fans sitting outside of the screened areas should afford them more reaction time to get out of the way, should a ball or bat come their way.

There is an additional measure taken by teams and their respective ballparks to avoid liability, and that is a contractual approach.[8] Every MLB ticket purchased includes a disclaimer stating that the “Holder… acknowledges and assumes all risks and dangers associated with…(i) being a spectator before, during, and after a baseball game…and (ii) attending…the Game, in each case, whether any such risk or danger occurs prior to, during or subsequent thereto, including specifically (but not exclusively) the danger of being injured by thrown bats; bat fragments; (and) thrown or batted balls.”[9] Theoretically, this forces spectators to “relinquish the right to sue over a foul ball injury as a condition of entering the ballpark.”[10] MLB teams will also post signs around the ballpark and make announcements over the public address system warning fans to be aware of their surroundings and the game play on the field, in an attempt to further distance themselves from liability.[11]

While a few select jurisdictions have pushed back against the “Baseball Rule”, the overwhelming consensus from the courts is to rule against fans trying to recover damages from a ballpark. While the argument could be made that distractions that were not in existence at the time of the implementation of the “Baseball Rule”, such as cell phones, social media, and in-game activities between innings at the ballpark, it is difficult to foresee these distractions resulting in a reformation of the way the “Baseball Rule” is legislated. With pace of play and injuries being hot topics in the world of baseball, the MLB is in a tumultuous position with its fans. There is little surprise that both of these issues were topics of discussion at the early 2018 MLB Owners Meetings. While the baseball traditionalists are unhappy with the additional protective netting, this author not excluded, it may be a very important step to the future of Major League Baseball and its fans.

[1] http://www.nydailynews.com/sports/baseball/30-mlb-teams-extended-netting-2018-season-article-1.3792706

[2] https://www.nytimes.com/2018/01/31/sports/baseball/baseball-netting.html

[3] https://www.mlb.com/news/mlb-issues-recommendations-on-netting/c-159233076

[4] https://www.mlb.com/news/mlb-issues-recommendations-on-netting/c-159233076

[5] https://www.nrpa.org/parks-recreation-magazine/2013/May/Majority-Baseball-Rule-Limits-Spectator-Liability/

[6] https://1.next.westlaw.com/Link/Document/FullTextfindType=Y&serNum=1935119958&pubNum=0000661&originatingDoc=Ibdd8d320ac9f11e690aea7acddbc05a6&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_661_146

[7] https://1.next.westlaw.com/Document/I6a681f4f006011da83e7e9deff98dc6f/View/FullText.htmlnavigationPath=%2FFoldering%2Fv3%2FJoeNotartomas%2Fhistory%2Fitems%2FdocumentNavigation%2F73e462c4-93e2-4708-b0b2-fdb88807ad39%2F%60vmFt5FQiwxwxxbkk9LtrHBY4g2VGmowJxbyLPpENG9TjY7mnkqgN23jv1ivYdXuFSDWe19kBNfV%7CqIvgULBUkdjBc7Mus8a&listSource=Foldering&list=historyDocuments&rank=5&sessionScopeId=f1521be4a01a31269301f26d93068ce1d21fcf16bace578ce6b384011c414d83&originationContext=MyResearchHistoryAll&transitionType=MyResearchHistoryItem&contextData=%28oc.DocLink%29&VR=3.0&RS=cblt1.0

[8] https://www.si.com/mlb/2017/09/21/new-york-yankees-netting-ballpark-injury

[9] http://m.mlb.com/stl/promo/postseason_ticket_disclaimer_language

[10] https://www.si.com/mlb/2017/09/21/new-york-yankees-netting-ballpark-injury

[11] https://www.si.com/mlb/2017/09/21/new-york-yankees-netting-ballpark-injury

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