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.

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.

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/

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.”

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.

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.

According to an April 3, 2017, New York Times article, Rafael Espinal, a member of the New York City Council, is considering proposing legislation that would require the Yankees and Mets to extend their existing protective netting 90 feet from home plate (MLB currently recommends that netting extend 70 feet from home plate).   Such a move would protect fans seated behind the dugouts at both stadiums.  “I’m baffled by why this is such a big issue,” he is quoted as saying.  “You have the money to put up the netting.  You would avoid the headaches of having to deal with injured fans.  Your players would feel less guilty when they go up to bat.”  Should this legislation be introduced and passed, it would be a significant step toward improving fan safety.  It also might encourage governmental bodies in other MLB cities to take similar action to protect their citizens from needless injury.

In the debate over whether or not to extend protective netting, those who oppose any additional nets love to cite figures in an attempt to show that the likelihood of being injured by a foul ball or bat is statistically small in comparison to the number attending MLB and MiLB games every season.  What is often lost in this argument is that real people are suffering real injuries, many of them life-altering.   It’s easy to ignore a problem that has no face, that is depersonalized by citing a bunch of numbers.  The bottom line is that no one should suffer an injury from a ball or bat, especially since the solution is so simple.

What follows is the story of one such tragedy.  It is a tale I hear all too often.  And it is one that never should have happened.

On August 6, 2016, my husband’s life changed forever…at a baseball game.  An event we never imagined could happen and took an instant to transpire had a life-altering effect on his wellbeing.

We were in attendance at a much anticipated Braves vs. Cardinals game at Busch Stadium.  The Braves/Cardinals series in St. Louis is an annual pilgrimage we make from Atlanta to watch the game with our friends- rival Cardinals fans.  We were seated in section 144, row E at the far right side, the 3^rd and 4^th seats in.  We were watching and paying close attention to the game when in the bottom of the 8^th, Tommy Pham of the Cardinals hit a broken-bat foul ball into the stands in our section.  I felt something fly by my face and lift my hair and immediately knew what had happened.   My husband, Rick, was struck directly in his left eye by a foul ball traveling at great speed.  He reacted immediately by placing both hands over his eye.  Fans all around us began calling for help from the medics.  A gentleman who introduced himself as a surgeon was at our side immediately to assess Rick’s condition.  He urged my husband to remove his hands so he could see if there was any projectile imbedded in his eye.  As soon as Rick pulled his hands away and I saw the injury, I knew the gravity of the situation.  EMT’s responded within seconds it seems and as soon as they determined Rick had not lost consciousness and could walk out of the stadium, they quickly escorted us to a First Aid area located at section 147.  There they applied a temporary bandage and got Rick and I to an ambulance immediately.  We were taken to Barnes Jewish Hospital where the full extent of his injuries would be determined.

Between 9:00 p.m. on August 6^th and 8:30 a.m. on August 7^th, multiple examinations and a 4 ½ hour surgery took place.  Suffice it to say that the outcome was less than favorable.  Rick’s injuries included a ruptured globe, blow-out fracture of the orbital floor, broken zygomatic arch, broken temporal-mandibular joint, and lacerations.  In layman’s terms, his eyeball was flattened, bones in the eye socket were fractured, his cheekbone and jaw were broken, and he had deep cuts.  He would never see out of that eye again.

In the days following the injury, he has been seen by more doctors than we can remember, including surgeons and specialists,  to determine if there was any chance of meaningful vision in the left eye or if it needs to be removed and replaced with a prosthetic eye.  Based on the current state of the eye, very low likelihood of any meaningful sight, and the risks involved with surgery, it was decided that Rick will not undergo any further surgeries.  He will remain sightless in the left eye.

He wears polycarbonate glasses now full time to protect his right eye.  The left eye socket is sunken and the bony abnormalities are apparent now that all the swelling has gone down.  He still has his eyeball and will keep it as long as it doesn’t shrink too much and as long as it doesn’t cause him pain.  He isn’t in pain now, thank goodness.  He has some discomfort and he wants to rub the eye constantly.  The eye itself is pretty clouded over, but when he has his glasses on it isn’t very noticeable.

He functions well but there are things that are bothersome…large crowds where he  can’t see people approaching from the left, hand-eye coordination for close up work.  He is a tinkerer and is working on refinishing a boat and this is challenging.

You know before Rick’s accident I never gave this much thought.  Now it’s so obvious.  But this is the reason there is no fan outcry for more netting.  The public doesn’t know about it.  I think if more fans saw the faces of those injured or the actual injuries they might actually think twice about where they sit at the ball park.

An HBO Real Sports/Marist Poll of 1,297 adults released on April 16, 2016, found that a majority (54%) of those surveyed think that MLB should expand protective netting along field level seating.  The survey, conducted with the Marist College Center for Sports Communication, reported that “50% of those fans would rather sit behind netting when close to the field, although only 41% of male baseball fans would compared to 61% of women.”  The preference for protective netting rises significantly when children are a factor.  A whopping 77% would prefer to sit behind netting if they are attending a game with small children.  The complete poll results can be found at http://sportscomm.marist.edu/