Posted by: Bob Gorman | November 21, 2017

Red Sox Extend Netting

The Boston Red Sox are the latest team to announce that they are extending safety netting further than MLB minimum recommendation of 70 feet.  Presently, the nets reach the near ends of the dugouts.  The plan is to extend them some 140 feet down each of the baselines, about twice the distance of Fenway’s existing netting.  “Fan safety is one of the most important things we consider each offseason as we work to improve the game experience at Fenway Park and the decision was made to take this step,” stated Red Sox spokesperson Zineb Curran.

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Posted by: Bob Gorman | November 17, 2017

The Antiquated Baseball Rule

Years ago when companies were first buying massive – and very expensive – computer systems, there was an adage that many of those responsible for purchasing those systems would follow:  no one ever got fired for buying IMB.  It didn’t matter if the IBM system was a right fit for your company.  If it didn’t work as expected, well, so what, you selected IBM so who could blame you.  It was the safe thing to do.  If, however, you purchased a rival system, heaven help you if it didn’t work.  Heads would roll!

This same adage seems to be at play when judges and juries apply the Baseball Rule.  It doesn’t matter that game and its fanbase have changed dramatically over the past century since this legal concept was first articulated, no judge is ever criticized if he/she applies it in deciding in favor of a team over an injured spectator.  It’s the safe thing to do.

What is the Baseball Rule and where did it originate?  Basically, the Baseball Rule is another name for assumption of risk.  The belief behind it is that balls and bats frequently enter the stands, everyone knows that this is the case and that one can be seriously injured if struck by one of these flying objects.  So if the fan chooses to attend a game and to sit in an area that is not protected by screening, then that fan has assumed the risk if he is injured.  If fact, one assumes the risk immediately upon entering the stadium, so it doesn’t matter if one is injured during batting practice or the game itself.  The stadium does have a limited duty to provide some protection in those areas of the park where it is believed that most of the foul balls and bats go.  Usually this is interpreted to be the seating behind home plate, although there has never been a study to show that this is the most dangerous area of the ballpark.  Additionally, the stadium must provide enough seating in this area to accommodate those fans who may reasonably be expected to want to sit there.  Good luck, though, in requesting those seats since they are rarely available to anyone but corporations and season ticket holders.

The basic structure of the Baseball Rule originated in a 1913 court case, Crane v. Kansas City Baseball and Equipment Co.  In 1910, S. J. Crane was attending a Kansas City Blues ballgame when he was injured by a foul ball.  Association Park, home of the American Association Blues, had seating for up to 7,000 fans in its grandstand, some of which was protected by screening.  Crane purchased a fifty-cent general admission ticket that allowed him to sit anywhere in the grandstand, including the protected area behind home plate, but he chose to sit in an unprotected area beyond third base.  He was struck during the course of the game and sometime afterwards initiated a civil suit against the team for $100 in damages (approximately $2,500 in 2017 dollars).  Crane asserted that the defendants were negligent in not screening in the entire grandstand.  In response, the team denied the claim and asserted that by choosing to sit in an unscreened area, Crane, who admitted he was a knowledgeable baseball fan, was guilty of contributory negligence and had thus assumed the risk in sitting where he did.  The Circuit Court judge hearing the case denied Crane’s contention that the team had a duty to screen in the entire grandstand and dismissed his case.  Crane then filed an appeal with the Missouri Court of Appeals.

This case had monumental implications for baseball teams everywhere.  If Crane won, professional teams would be required to screen in all seating areas of their parks or suffer the legal – and financial –  consequences.  In addition, the practice of the time that allowed standing-room-only crowds to watch the game from roped-off areas of the outfield would have to be discontinued.

On February 17, 1913, the three-judge court ruled unanimously in favor of the Blues, stating that Crane had “assumed the ordinary risks of such position” when he chose to sit in an unprotected area even though there were seats available behind screening.  By freely choosing to sit where he did, the court contended, he was guilty of contributory negligence.  But the court did not state that the team had no duty of care to protect its fans.  While ballparks were not required to screen every seat, they did have to provide enough screened seats to accommodate any fan who wanted to sit there.  If a fan were denied a protected seat, then assumption of risk would not apply and team would be liable for any injury resulting from a ball or bat.  There was no assertion that the park operator had any duty to warn fans beforehand of the dangers of sitting in unscreened seats.

While the decision of the Missouri Court of Appeals may have been practical and reasonable for the times, the problem with the Baseball Rule is that it has evolved very little over the intervening century.  In states where it is allowed as a defense (not every state recognizes the Baseball Rule), it is generally applied as if it were still 1913.

The Crane decision occurred during a period of baseball history commonly known as “The Deadball (or Dead Ball) Era.”  During the early twentieth century (roughly 1900-1920), the type of baseball played was considerably different than today.  It was more of a “small ball” game.  The emphasis was on defense and moving the baserunner along, not swinging for the fences.  It was a time when the sacrifice bunt was considered a potent offensive weapon and the spitball made it a pitcher’s game.   Balls were hand-wound, making them softer; they traveled with less velocity than the ball used today.  At the same time, umpires were less likely to discard dirty and scuffed balls and it was not unusual for the same ball to be used nearly the entire game, making them softer as the game progressed.  Bats, too, were thick-handled, resulting in fewer broken ones.

Beginning around 1919 several changes were made that dramatically impacted how the game was played.  First, machine-wound balls made from a higher grade of yarn were introduced that season.   These balls were much harder than their hand-wound predecessors and flew off the bats at significantly greater velocity.  After Indians’ shortstop Ray Chapman suffered a fatal beaning at the hands of Yankees’ pitcher Carl Mays the following season, umpires were instructed to discard balls that had become marred and dirty.  (Chapman, it was believed, failed to duck because the ball was so soiled he didn’t see it.)  At the same time, the spitball, a lively pitch that moved erratically, was phased out, resulting in increased offensive production.  The rise of Babe Ruth paralleled these changes.  In 1918 at the end of the Deadball Era, he hit a home run every 28.8 at-bats (for a total of 11 in 95 games).  Just two seasons later, his home run production exploded with a dinger every 9.5 at-bats (for a total of 54 in 142 games).  Other players began to emulate him and homers flew out of the parks.  It marked the end of “small ball” and the rise of “long ball” where players were rewarded more for their offense than for their defense.  For fans, these changes meant that more balls were put into play, many of which entered the stands.  And these balls were harder and traveled with greater velocity than during the earlier era.

There have been other changes to the game since the Crane decision as well.  In the past, all games were played during the day, allowing fans (and batters) to see the ball better.  The modern game is full of distractions that didn’t exist in the past.  There were no mascots roaming the stands, no loud music blaring over loudspeakers, and no jumbotrons, all of which draw attention away from the field.  And there were no smartphones.   As for these devices, teams actively encourage their fans to use social media while the game is in progress.  Free wi-fi is provided and various contests are held involving the use of smartphones.  The game today has become a giant entertainment venue in which the action on the field is almost secondary to all the other activities going on at the ballpark.

Alcohol consumption has long been a part of baseball (many of the teams a hundred years ago were owned by brewers), but now ballparks offer hard liquor and hold cheap beer nights like Thirsty Thursdays that lead to excessive drinking.  The problem in terms of fan safety while in the stands, of course, is that alcohol consumption slows reaction time and impairs both judgment and coordination.  Alcohol sales account for more than fifty percent of the revenue generated at ballparks, so stadium owners have a vested interest in encouraging fans to drink.

The spectators themselves have changed significantly in the last 100 years.  At one time, baseball truly was the National Pastime.  Ball games were played in every village and hamlet and the typical fan was quite knowledgeable about the game and the dangers inherent in it.  Fans today may attend one or two games a season and really have no understanding of how dangerous it is to sit in exposed field-level seating.  For many it is a social outing with lots of distractions.  They visit with their neighbors, view Facebook, send emails, take selfies, and engage in many other activities that do not include watching the game, all the while sitting in seats that are subject to screaming line-drive fouls and broken bats.  They simply do not understand the potential danger they are in.  And ballparks do a lousy job in warning fans about how frequent foul balls and bats enter the stands and how seriously injured one can be if struck by one of these flying objects.  Putting warnings on the back of tickets (which few read), posting a few small caution signs in the stands (which few see), and making an occasional announcement on the scoreboard or over the public address system (which few hear) is totally inadequate in preparing fans for the potential danger they are facing.

Players, too, are much larger and stronger than in the past, resulting in foul balls that travel in excess of 100 miles per hour (147 feet per second).  Fans sitting close to the field often have less than a second to react.  In a recent study, male and female volunteers of all ages were seated behind Plexiglas while a pitching machine located 75 feet away fired baseballs traveling 95 miles per hour at them.  The researchers determined that the distance was typical of the closest exposed seating at MLB parks and that the speed was typical of how fast a line-drive foul travels.  What they found was truly frightening.  While some subjects giving their full attention to the ball were able to get out of the way in time, a good many froze and did not duck.  All of the subjects would have been struck if their attention was even slightly diverted, such as when eating a hot dog or conversing with the person seated next to them.  It is simply unreasonable to expect the typical fan to pay attention every second there is action on the field.  And even if one does, many do not react in time to get out of the way of a screaming line drive or flying bat.

For all these reasons, the Baseball Rule as currently interpreted is completely erroneous.  The courts have not kept up with the changes in the game and are thus applying early twentieth-century standards to twenty-first century conditions.  And, of course, MLB and MiLB are perfectly happy with this situation because baseball continues to be protected by an antiquated legal concept.  Until organized ball is held accountable for thousands of unnecessary fan injuries that occur every season, almost all of them easily preventable, there is no real incentive for teams to put safety first.  It is long past time for the Baseball Rule to be reinterpreted to reflect the realities of the game as it is played today.  People should come before profit.

Posted by: Bob Gorman | November 12, 2017

Support for Safety Netting Grows

The latest HBO Real Sports/Marist Poll shows a significant increase in fan support for additional safety netting to protect field-level seats.  According to poll results, 60 percent of those polled want additional netting, up from 54 percent a year ago.  Those opposed to expanded netting decreased from 41 percent to 35 percent.  Results also show that three out of four fans (76 percent) do not think that viewing the field through netting detracts from their enjoyment of the game.  Most noteworthy, “when asked about whether or not fans would prefer to sit in an area with or without protective netting, there has been a shift in public opinion. A majority of baseball fans nationally, 52%, now say they would prefer to sit in an area with netting while 41% report they would prefer to sit in a section without it. In April 2016, the opposite was the case. A majority, 54%, said they did not want netting in front of their seats, and 41% said they wanted the extra protection from foul balls and bats.”  For full poll results, see http://maristpoll.marist.edu/1024-increased-support-for-protective-netting-in-mlb-stadiums/.

Posted by: Bob Gorman | July 18, 2017

Danger at the Ballpark

Miami attorney Jack Herskowitz has just published (Trimark Press, 2017) an interesting, clearly written treatise on the dangers fans face when attending baseball games.  Written for the layperson, Danger at the Ballpark describes in detail, with numerous case illustrations, how the archaic legal doctrine commonly known as the Baseball Rule (“assumption of risk”) has been applied by the courts over the years to protect baseball from lawsuits by injured fans.  Whether a knowledgeable fan or a novice to the game, a child or an adult, it is very rare for a party injured by a foul ball or broken bat to win a legal settlement for the injuries incurred while at a game.  Mr. Herskowitz takes a legal scalpel to the Baseball Rule, showing how faulty logic and twisted legal reasoning have been used over the decades to strip baseball spectators of the common safety protections they are entitled to in any other public setting.  He also addresses injuries from violence and falls and makes recommendations for the simple steps baseball should (but won’t) take to protect fans.  Highly recommended for anyone interested in this very timely topic.

Posted by: Bob Gorman | June 26, 2017

Mets Extend Netting

The New York Mets have become the tenth major league team to extend safety netting.  Recent legislation introduced in the New York City Council appears to be the motivating factor in the team’s decision to extend netting to the far ends of the camera wells, which is some 30 feet beyond the dugouts.  Additional eight-foot high netting will run from the camera wells further down the first and third base lines.  In announcing these changes, team officials stated that “Fan safety continues to be our top priority and using this technology will offer state-of-the-art protection for our fans while minimizing the impact on their viewing experience.”  These upgrades at Citi Field will be made during the upcoming All-Star break.

Posted by: Bob Gorman | May 30, 2017

Railing Height

With the recent death of a Cub’s fan who fell from a handrail while leaving Wrigley Field, some are questioning how high safety railings should be to protect fans from such falls.  Many safety experts recommend that railings should be at least 42 inches high to prevent falls like the one that happen at a Texas Rangers game in 2011.  In that incident, the railing was less than three feet high, as is the case in many ballpark seating areas.  Any higher than that, stadium officials contend, would result in obstructed views for those sitting in front-row seats.  For an insightful discussion of this issue, see Brent Schrotenboer’s article in USA Today: https://www.usatoday.com/story/sports/mlb/2017/05/26/major-league-baseball-stadium-deaths-falls/102146750/

Posted by: Bob Gorman | May 23, 2017

Extended Netting at Ten Major League Parks

So far, nine major league parks have extended their safety netting beyond the minimum suggested by the baseball commissioner’s office.  Clubs that put the safety of fans first are the Texas Rangers, Washington Nationals, Kansas City Royals, Minnesota Twins, St. Louis Cardinals, Philadelphia Phillies, Pittsburgh Pirates, Houston Astros, Atlanta Braves, and New York Mets.  None of these clubs have suffered any appreciable drop in ticket sales as a result of the extended netting.  As reported by Maury Brown at Forbes (https://www.forbes.com/sites/maurybrown/2017/05/15/as-injuries-gain-visibility-how-serious-is-major-league-baseball-about-fan-safety/#42ebb2993737), the Texas Rangers experienced only some minor complaints about its decision to extend the netting.  Stated one club official, “Obviously, there was some initial reaction and we worked with customers individually on those concerns.  But overall, we were about to satisfy pretty much everyone with few exceptions and it became a non-issue very quickly.”

Posted by: Bob Gorman | May 23, 2017

Cubs Fan Dies in Fall

On May 17, 2017, Rick Garrity, 42, died from head injuries he sustained in a fall at Wrigley Field as he was leaving the stadium about 11:00 p.m. the evening before.  According to police, Mr. Garrity was attempting to climb the 36-inch-high handrail along the ramp leading from the right field upper deck seating area when he fell backwards, striking his head on the concrete walkway below.  Witnesses reported that the victim was holding a red cup in one hand as he climbed the railing.  Police stated that Mr. Garrity was sober at the time of the incident.  The Cook County medical examiners office ruled his death an accident.

Rafael Espinal, Jr, a member of the New York City Council, has introduced legislation that would require the Yankees and Mets to extend their existing protective netting to the foul poles in Yankee Stadium and Citi Field.  This law would be a major breakthrough for fan safety if it passes the New York City Council and would set a template for other MLB and MiLB cities to follow.  Here is the statement Council Member Espinal, Jr., released to the press.  Mr. Espinal, Jr., represents the 37th Council District in Brooklyn and serves as Chair of the Committee on Consumer Affairs:

New Yorkers love baseball, and we especially love our Mets and Yankees. But our hometown teams should do more to reciprocate that love to their fans when it comes to public safety. We have all heard the horror stories of fans seriously injured at professional baseball games. Every year approximately 1,750 fans are injured by foul balls and broken bats. Not only are these injuries preventable, but the MLB, Yankees and Mets have been slow to implement a simple solution that would prevent families’ fun-filled ballpark outings from turning into nightmares.

This past year several fans lost their eyesight at ballgames. Think about that. They went to a baseball game and they left blind in one eye. All across America, fans, including children and the elderly, were hospitalized and had major surgery for brain and head trauma, concussions, bleeding on the brain, skull fractures, and eye damage, among many other permanent injuries.

In 2011 a New Yorker named Andy Zlotnick had major reconstructive eye and face surgery after getting hit by a foul ball in Yankee Stadium. Just days after Zlotnick was injured, a 12-year-old boy named Shlomo Shalomoff was hospitalized after getting slammed in the face by a foul ball at Citi Field. Both sat in right field seats — well past the first-base dugout.

MLB currently does not require protective netting for its ballparks. Instead, they leave fan safety decisions to the individual teams. MLB only “recommends” that teams install up to 70 feet of netting from behind home plate to the beginning of the dugouts. Consequently, just eight of the 30 major league teams have proactively added safety netting beyond MLB’s recommendation — the Yankees and Mets should be among them. While the players and coaches have protection in the dugouts, the fans sitting just a few feet behind them are left vulnerable.

Cost-effective and non-obstructive netting solutions already exist. The Texas Rangers’ retractable netting system can be raised and lowered to promote fan-player intimacy. Vertical netting would shield the scorching line drives from smashing into a fan’s skull, but allow pop-ups to be caught by fans sitting behind the nets. The new netting technology is ultra-thin, hi-tech fiber that is much less obtrusive than netting in the past.

Adding more protective netting will not impair the intimacy or fan experience. It will not reduce attendance or lead to lost season ticket holders. The Texas Rangers and Minnesota Twins added netting behind the dugouts last season and had no season-ticket cancellations. While some old time fans may no doubt grumble, baseball will be made better by becoming safer.

Many prominent players, coaches and managers have endorsed adding safety netting, including Yankees manager Joe Girardi, Twins manager Paul Molitor, Justin Verlander, Chipper Jones, and Cubs manager Joe Maddon, among others.

Perhaps most outspoken this past season was Phillies shortstop Freddy Galvis, who struck a young girl in the face with a line drive foul ball in August at Citizen’s Bank Park. Galvis felt terrible and urged MLB to extend netting.

“It’s 2016 and fans keep getting hit by foul balls when you’re supposed to have a net to protect the fans. Why don’t you put up a net and protect all the fans? It’s something you have to put before everything. Safety first. Safety.”

We New Yorkers are loyal to our hometown teams. We support the Yankees and Mets through good seasons and bad, we march with them in victory and suffer with them in defeat. Our teams should reciprocate that loyalty by prioritizing fan safety at all of their NYC stadiums. Unfortunately, today’s ballparks in our city are not safe enough and we must ensure this obligation is met.

That is why I am introducing legislation in the City Council that will require the city’s major and minor league ballparks to install additional protective netting from home plate to the foul poles as a matter of public safety. This legislation will ensure that baseball fans get protection from the dangers they face at our professional ballparks. Businesses in NYC that fail safety inspections must make their establishment safe for the public right away. Baseball should be no different.

Posted by: Bob Gorman | May 6, 2017

Braves Settle Foul Ball Lawsuit

A lawsuit filed in 2012 by the parents of a 6-year-old girl who was severely injured by a foul ball at an Atlanta Braves game has been settled.  On August 30, 2010, the child and her father were seated behind the third base dugout when the youngster was struck in the head by a foul ball off the bat of Melky Cabrera.  The blow fractured the girl’s skull in 30 places and resulted in traumatic injury to her brain.  The family incurred over $66,000 in medical bills as a result of the injury.  Among other issues, the lawsuit against the Braves and MLB asserted that steroid use among players resulted in harder hit balls, thus increasing the speed at which foul balls fly into the stands.  The suit also contended that the Braves failed to have enough safety netting even though the team and MLB knew that seats behind the dugouts are prime targets for foul balls.

Early in the proceedings, the Braves attempted to get the case dismissed, citing the “Baseball Rule” (assumption of risk) as their rationale.  Georgia does not recognize that doctrine as a defense and the Georgia Court of Appeals refused to invoke it.

Terms of the settlement were not disclosed.  A Braves spokesperson did state that the team’s decision to extend safety netting to the far ends of the dugouts in their new ballpark, SunTrust Park, had nothing to do with this lawsuit.

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