Todd Keeling, 48, was found dead inside a beer cooler he was installing at SunTrust Park, the Atlanta Braves stadium, on June 26, 2018.  Keeling had been working overnight to install his patented beer-pouring device when his body was discovered by a coworker the next day.  His death is under investigation.

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Carol Sharrow, 51, is accused of manslaughter after she broke through a fence with her car and drove onto a baseball field in Sanford, ME, on June 1, 2018, striking and killing Doug Parkhurst, 68, while a youth baseball game was in progress. In an aside note, Parkhurst had confessed in 2013 to a hit-and-run incident in 1968 in which he killed a 4-year-old girl in Fulton, NY.  There was no apparent connection between the two incidents.

Dina Simpson was attending a minor league ball game in Ohio several years ago when she was struck in the right eye by a foul ball.  The blow caused permanent loss of sight in that eye.  Andy Zlotnick suffered a similar fate when he was struck in the left eye during a New York Yankees game in 2011.  Below are links to recent editorials by both of them in which they advocate for greater fan safety measures at major and minor league baseball parks.  While they acknowledge that organized ball has made some steps toward better protection of fans, both forcefully argue that much more has to be done to ensure that no one needlessly suffer the types of injuries that they sustained.

Dina Simpson’s editorial:

https://www.washingtonpost.com/blogs/all-opinions-are-local/wp/2018/04/11/extend-the-netting-at-minor-league-parks-in-maryland/?noredirect=on&utm_term=.ff07677af6be

Andy Zlotnick’s editorial:

http://www.nydailynews.com/sports/baseball/fan-injured-foul-ball-mlb-give-funds-wounded-fans-article-1.3911394

Legal scholars Nathaniel Grow and Zachary Flagel recently published an article in the William and Mary Law Review that underscores the antiquated nature of the Baseball Rule.  First, the authors provide “new empirical evidence establishing that the risk of being hit by an errant ball or bat at a professional baseball game has increased considerably in recent years. Specifically, fans attending MLB games today are sitting more than twenty percent closer to the field than they were when the legal doctrine was first established. This fact, along with other changes in the way in which the game is played and presented to fans, have converged to substantially reduce the reaction time that spectators have to protect themselves from flying objects entering the stands, calling into question courts’ continued reliance on the century-old rule.”  Second, they assert “that courts and academic commentators have, to date, failed to reconsider the Baseball Rule in light of the emergence of the law-and-economics movement,” concluding “that future courts (or legislatures) should reject the Baseball Rule and instead hold professional baseball teams liable for spectator injuries.”

For the complete article, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3143732.

Whenever their is a surge in home run production, the inevitable question about whether or nor the ball is juiced always comes up.  Such was the case in 1961, for example, when Roger Maris surpassed Babe Ruth’s single-season home run record.  Studies at the time, however, failed to produce any real evidence that the balls were any more livelier than in the past.

With a record-setting 6,105 homers last season – more than at any time during the steroid period – questions have again arisen over the composition of the ball.  Are they juiced in some way?  According to some recent studies, it appears that the ball is indeed livelier than in the recent past.  These investigations “have shown differences in the characteristics of the ball and the way it performs. Research has shown that balls used in games after the 2015 All-Star Game were bouncier and less air resistant compared with baseballs from the 2014 season, when players hit a relatively modest 4,1086 homers, the fewest since 1995.”  As a result of changes in the composition of the ball, they come off the bat at a greater velocity and travel further than they did prior to mid-2015.  These changes combined with the new batting philosophy of increasing launch angle to put more balls in the air means increased danger for fans in the stands.  More balls in the air traveling at faster speeds increases the number fouls and gives spectators even less time to react when a ball is headed their way.

For a report on these studies, see https://fivethirtyeight.com/features/juiced-baseballs/.

The New York Yankees have finally decide to do right by their fans and extend the protective netting well beyond the first and third base bags.  The Yankees are one of the last major league teams to either extend netting or to announce plans to do so.  In addition, New York Assemblywoman Amy Paulin has introduced legislation requiring all ballparks in New York state with a seating capacity of more than 5,000 to extend netting all the way to the foul poles.  Part of her motivation in doing so was the serious injury to a young girl that occurred at Yankee Stadium this past summer.  Let’s all hope that Ms. Paulin’s proposal is enacted into law.

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.

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.

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/.

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.