The court thus showed how the exception in the Colorado rule might be applied, perhaps especially in cases where the injury occurs not in the stands but in the multipurpose areas that make up an increasingly important part of the spectator experience these days. Many a relieved parent can attest to the whine-preventing capabilities of newer stadiums’ playgrounds and food concourses. But the Idaho court saw that they’re also potential injury zones, with those inhabiting them paying scant attention to the nominal purpose of attendance—the actual ballgame.
There remained the assumption of risk defense, but the Idaho court rejected that, too. Idaho is in good company here, as many courts disfavor these kinds of disclaimers, finding them to be against public policy when they’re just written on the back of a ticket and not called to the customer’s attention. The law of Florida—which is where the NASCAR litigation would likely be conducted—isn’t entirely clear, but it seems that these boilerplate clauses (which appear to have been used on the tickets at Daytona) aren’t favored there, either.
Removing the assumption of risk argument would leave the Florida courts to decide whether some variation of the baseball rule should apply to auto racing. If so, the speedway could simply say: “Hey, we supplied a fence!” The problem, of course, is that the fence wasn’t effective at keeping the people behind it from injury. In fact, the presence of the fence could strengthen the plaintiffs’ cases: They can claim that they reasonably relied on the fences to keep them safe. And that same argument applies to the claim against the manufacturer of the fence: It wasn’t as safe as it needed to be.
Prospects may be improving for spectators injured by the flying tools of a sport’s trade. Hockey fans sometimes win when they’re injured by hurtling pucks, especially if they are seated in an area that’s unprotected by netting or Plexiglas. In cases involving spectators hit by balls at pro golf events, courts have found liability proper where the owners of the course (or tournament) didn’t take steps to minimize the risk. And now the baseball rule has struck out, at least in Idaho.
None of these protections for stadium owners make much sense anyway. Some state legislatures have found that the baseball rule is a way to support the “wholesome, family” activity of baseball, but that’s just an Orwellian way of saying the lawmakers want to insulate stadium owners from the costs their activities impose. I’m reminded of one of the great chestnuts from first-year torts class, the English case of Stone v. Bolton. Bessie Stone was struck and injured by a cricket ball flying out of the defendant’s stadium. Even though balls had left the stadium before, the House of Lords decided that the owners had not acted unreasonably, and therefore were not liable to poor Bessie. The ensuing outcry showed that the public understood what the court didn’t: The injury was a cost of doing business for which the stadium owners should have been accountable. (And, some added, the judges liked cricket too much.) Then the defendants did the right thing—they paid Bessie’s damages, anyway.
Daytona Speedway and baseball stadium owners should do likewise and pay the injured fans. Otherwise, these no-liability rules end up pinning the full cost of injury on the poor sap who got clocked. That’s both unfair and unnecessary. Better for the owners to spread the costs of harm by passing them along to all the paying customers, so each pays just a little. Only then will the price take into account what the sport really costs.
The owners of the Daytona International Speedway, then, shouldn’t be able to take refuge behind a no-liability fence. Settlement is the way to go here, with a lawsuit waiting for those stadium owners who don’t do the right thing.