Baseballs, shattered bats, hockey pucks, basketballs, auto parts—there’s no end to the objects that can slam into hapless spectators at sporting events. A bunch of NASCAR fans found that out last week when they were hurt by flying debris at the Daytona International Speedway. Are such injuries a natural risk of fandom, or should the fans expect a big payoff?
That’s what Matt Morgan aims to find out. Morgan is the attorney for three of the gored spectators, one of whom suffered a shattered fibula. If he can’t settle the case, he’ll probably bring a lawsuit. In addition to NASCAR, defendants might include the owner of the speedway (described here as a “NASCAR sister company”) and the manufacturer of the safety fence that failed to ensure the fans’ safety.
So, would such a suit be successful? And should it be successful?
On first blush, it doesn’t look good for the plaintiffs. Much of the relevant law in the area of “spectators hit by flying stuff” owes a debt to baseball, where the unimaginatively named “baseball rule” generally prohibits fans struck by batted balls or errant bats from recovering damages against stadium owners and operators. Although there are variations on this rule, it’s been followed by many courts for years, and has been extended (often not by name) to some of the other flying objects mentioned above. And some states have even passed laws to make sure judges don’t change their minds.
There’s another problem for those injured. Sports tickets contain—often in absurdly tiny print—disclaimers against liability. They also state that, by entering the stadium, fans assume the risk of being hit by such objects. As the great common law judge Benjamin Cardozo once said, “The timorous may stay at home.” (Cardozo was talking about a case involving an amusement park ride, the Flopper, which flopped the plaintiff.)
These are high hurdles for potential litigants, but they can sometimes be cleared. First, the baseball rule isn’t always as firm as it first appears. Generally, the stadium must provide protective netting for the most dangerous places—behind home plate, for a start, where high-speed balls are likeliest to cause serious injury. Sometimes courts additionally state that the stadium must provide protective netting for as many fans as can reasonably be expected to want it. (If you have no idea how that question could be answered, you’re not alone.)
Second, even where the ball strikes someone far away from an area that’s “supposed” to be netted, victory for the defendants isn’t certain, at least in some states. A Colorado statute first protects stadium owners from these batted-ball claims, but then adds this exception: Owners can be liable for failing to take reasonable steps to “design, alter, and maintain the premises of the stadium in reasonably safe condition relative to the nature of the game of baseball.”
Although it’s hard to know, perhaps what the legislators had in mind here was a situation like that of the plaintiff in the recent case of Rountree v. Boise Baseball, LLC. There, the Idaho Supreme Court parted with its sister state courts in refusing to adopt the baseball rule.
While attending a Boise Hawks minor-league game, Bud Rountree stopped off at the Hawks Nest restaurant and then went to chat with a friend in the adjacent Executive Club lounge at the end of the third-base line. Rountree responded to the roar of the crowd by turning toward the field. His timing couldn’t have been worse—the ball that was causing all the commotion struck him, putting out one eye.
Like most paying customers at a sporting event, Rountree had been issued a ticket that informed him specifically of the risk of being struck by a batted ball. But in a unanimous decision, the Idaho Supreme Court refused to dismiss his claim. The justices said that without evidence as to the “prevalence of foul ball injuries in general” and “how varying stadium designs might prevent them,” it didn’t make sense to bar all claims through adopting a blanket rule.