The Chicago Daily Law Bulletin Published Timothy Liam EPSTEIN'S Article Entitled, "As America's pastime changes so might the Baseball Rule."

Of all the major professional sports in the United States, America’s pastime has enjoyed the most success in the courtroom.

One of baseball’s greatest legal victories was the establishment of “the Baseball Rule.” Despite countless attempts spanning several decades, the Baseball Rule has been consistently upheld by courts. In fact, some jurisdictions apply this rule to other spectator sports (e.g. hockey). Nonetheless, a recent California Court of Appeal’s decision may have begun the process of significantly limiting the applicability of the Baseball Rule.

Although each state slightly differs, in general, the Baseball Rule is a limitation on the traditional legal duty a landowner owes to those within the boundaries of their respective property. The limitation is that a team or sponsoring organization cannot be held negligent if a spectator is struck with a baseball while sitting in an area of the stadium not protected by netting. Accordingly, the Baseball Rule essentially presumes that all spectators assume the risk of being struck with a ball, and therefore, are contributing to their own negligence if it does in fact occur.

The inception of the Baseball Rule dates back to the early 1900s with Crane v. Kansas City Baseball & Exhibition Co. In this case, a spectator purchased a ticket to a minor league baseball game and chose to watch the game from an area of the stadium not covered by the protective netting. During the game, a foul ball struck the spectator, causing him injury, and eventually led to a lawsuit being filed alleging the team was negligent for not providing netting in the area he was sitting.

The court did not accept the spectator’s argument and instead held that his decision to watch the game from an area not protected by netting demonstrated that he assumed the inherent risk of being struck by a foul ball at a baseball game when not sitting behind protective netting. Therefore, the court found that the spectator’s decision constituted contributory negligence, and therefore, the team was not held liable.

Over the course of a century, the Baseball Rule has been challenged by injured fans countless times, and in a vast majority of these cases, the Baseball Rule prevailed. However, a recent California case has made significant headway to change this trend.

In 2013, Summer Johnson was in the grandstands at California State University-Long Beach’s Blair Field to watch her brother try out for the U.S. national team. During the game, Summer was “momentarily distracted from the field of play” when she was struck by a foul ball. She sustained serious injuries, including damage to her optic nerve. Summer J. v. United States Baseball Federation, B282414M (Cal. Ct. App. 2020).

In 2014, Summer’s parents filed a negligence and premise liability lawsuit against the U.S. Baseball Federation (the organization sponsoring the exhibition game) alleging that her injuries would not have been sustained if the protective netting was proper and she was not surrounded by distractions provided or allowed by the Federation.

Unsurprisingly, the Baseball Federation argued that pursuant to the Baseball Rule, Summer assumed the inherent risk of being struck by a foul ball because she chose to sit outside the range of protective netting. Moreover, the Baseball Federation also argued that precedent has already established that extending the netting to where it would have protected Summer would have mitigated the inherent risk, but would also significantly alter the nature of the game. The trial court agreed with the Federation and dismissed the case.

Despite this common application of this historic legal doctrine, the California Court of Appeals recognized that although the game of baseball has significantly evolved since Crane, the Baseball Rule has not progressed along with it. Accordingly, the Court of Appeals reversed the trial court’s decision and reinstated the case.

One issue the appellate court identified was the voluntary decision by baseball parks across the country to extend netting farther down the first- and third-base lines. Baseball fans and physicists both agree that the overall skill and strength of a modern day baseball player has resulted in a significant increase in the average velocity of a ball off a bat in a baseball game. Therefore, foul balls in today’s game are reaching new areas of the stadium at speeds far faster than those in 1913. With MLB leading the way of this netting-extension initiative, the Court of Appeals had no issue in holding that the netting provided at Blair Field was inadequate.

The second, and arguably more interesting issue the court identified, was that today’s game has become far more than just two teams competing on a diamond.

In the early 1900s, a spectator at Wrigley Field would have nothing to watch besides the game itself and the occasional updates on the historic scoreboard. However, if a spectator were to attend a game at Wrigley Field in the last couple of years, he or she could miss an entire at-bat by looking at what was being presented on the “Jumbotron,” turning around to see Clark the Cub interacting with a young fan, and then pull out his or her phone, connect it to Wrigley’s free Wi-Fi, and post a picture taken in front of the historic landmark on Instagram.

This issue has the potential to disrupt the common practice of judiciaries solely relying on the Baseball Rule’s presumption and its respective case law. In 1913, a spectator would struggle to convince a court that at the time he or she was struck by a foul ball, something other than the game caught the attention of the spectator, and consequently, he or she failed to appreciate the inherent risk of sitting in an area of the stadium that is not protected with netting.

Today, not only are courts beginning to identify potential distractions that can reasonably cause a spectator to not appreciate the inherent risk of being at a baseball game, but the list of distractions continues to grow.

One new distraction is the progressive legalization of sports gambling in the United States. If a spectator were to attend a Cubs game at Wrigley Field next year, he or she could access a legal online sports book on his or her phone and place a wager on the game.

However, as sports gambling continues to grow, the opportunities have as well. One example is the offering of “live” lines and prop bets. Because the odds of these live lines are constantly changing, a spectator may become consumed on what is being displayed on the phone, and thus, be completely unaware of what is happening on the field of play.

Despite certain applications of the Baseball Rule being challenged, the basic principle of the rule is valid law, meaning, if a spectator is struck by a ball, he or she must satisfy a heightened pleading standard to avoid dismissal. Throughout history, spectators would almost never satisfy this heightened standard because courts accepted the presumption that if a spectator attends a game, he or she fully appreciates and understands the risks involved with sitting outside of the area protected by the netting. Nonetheless, as the Summer court has made clear, today’s baseball game is surrounded by distractions that can reasonably rebut this century-old presumption.

Team Members: