Posted by: Bob Gorman | October 1, 2010

Assumption of Risk

For more than a century, ballpark owners have enjoyed nearly automatic protection from injury lawsuits under the legal doctrine known as “assumption of risk,” or what some refer to as “the baseball rule.”  Under this doctrine, the courts have held that the dangers inherent in baseball are widely known and that fans therefore assume the risk in attending games.  Stadium owners do have a “limited duty” to provide reasonable protective measures in the most dangerous areas of their parks and sufficient seating in the protected areas for those who typically may want to sit there, but baseball is not held to the same patron safety standards as other businesses.  At the same time, some courts have applied the doctrine known as “contributory negligence.”  Basically, this doctrine holds that if a fan, fully aware of the dangers of the game, is injured while sitting in an unprotected area, he has, by assuming such risk, contributed to his own injury and is therefore not entitled to recovery of damages.

Because of the changing nature of the game and the venues in which it is played, more recent cases have sought to refine the traditional “assumption of risk” defense.  These cases, in effect, have redefined “limited duty” to mean more than just screening behind home plate and warnings on the back of tickets and the safety announcements before games.  The most recent example of this change is the New Mexico Supreme Court ruling in an injury lawsuit brought against the City of Albuquerque and the Albuquerque Baseball Club, i.e., the Albuquerque Isotopes.

The parents of a four-year-old child brought suit against the city, which owns the stadium, and the Isotopes after their son was struck on the head by a batted ball during pre-game batting practice while the family was eating in the picnic area located in fair territory just beyond the left field wall.  The stadium does not have protective screening around this picnic area and the picnic tables are perpendicular to the field, so that fans seated at the tables do not face the field.  The plaintiffs argued that because of this design, fans are not focused on the game.  In addition, they were not given any warning that batting practice had begun.

The district court in which the case was first heard applied the traditional “limited duty” requirement, granting summary judgment to the defendants.  The Court of Appeals reversed this judgment “on the ground that, under the particular circumstances alleged, there are issues of material fact precluding summary judgment,” thus rejecting a strict “limited duty” doctrine.  The state Supreme Court reversed the appellate court’s rejection of a limited duty rule.  In doing so, the New Mexico Supreme Court adopted a new limited duty rule which states that “an owner/occupant of a commercial baseball stadium owes a duty that is symmetrical to the duty of the spectator.  Spectators must exercise ordinary care to protect themselves from the inherent risk of being hit by a projectile that leaves the field of play and the owner/occupant must exercise ordinary care not to increase that inherent risk.”  The case has been referred back to the district court “for further proceedings consistent with this Opinion.”  If the plaintiffs win this lawsuit, it will be a further limitation on the assumption of risk defense.  Stay tuned.



  1. Major league players hit balls fairly routinely over the left-field wall at Fenway Park. There is no netting above the “Green monster” protecting pedestrians on the public thoroughfare of Lansdowne Street. This street is not closed during baseball games, and there is no warning given. No hard hats either.

    I assumed it has not yet happened, but somewhere, someone will be killed outside of a baseball stadium. Under “assumed risk”, wouldn’t the baseball team be obligated to do its utmost to prevent this occurrence, and warn those in harm’s way; particularly pedestrians who have not bought tickets?

    • Assumption of risk (sometimes known as The Baseball Rule), while its application varies by state, has given great protection to ballparks and their owners for decades. While stadiums have a “limited duty” to provide basic protection (such as screens behind home plate), they have usually been found not liable for fans injured in the stands. However, over the past 20 years or so, there has been some modification to this almost-blanket protection from liability that baseball has enjoyed.

      In a 2005 lawsuit in New Jersey, for example, the courts ruled in favor of the plaintiff who had been severely injured by a foul ball as he was buying a drink from a vendor’s cart located on the concourse of Riverfront Stadium, home of the independent Atlantic League Newark Bears. While a split state supreme court ruling upheld the long-standing concept of “limited duty” as applied to seating in the stands, it ruled that traditional negligence principles applied to all other areas of the stadium, including the concourse. In other words, the stadium was subject to a greater level of liability in those areas where fans are not expected to be paying attention to the game. In this case, the stadium assumed liability when it located a food cart so close to the playing field where fans were more likely to be injured.

      Interestingly, a recent lawsuit against McNeese State University in Lake Charles, LA, addresses the very issue that you raise. In 1997, a fan suffered a severe eye injury by a foul ball as she approached the ticket booth located along the third base line outside the stadium. In 2005 the plaintiff was awarded $485,000 by a state appeals court, which found that even though the university was aware that the ticket booth was in an active foul ball area, it did not provide sufficient protection for fans in that area. The problem was compounded by the fact that a fence in that area obstructed the view of the playing field. The court ruled that because the plaintiff had not yet entered the stadium, she had not yet assumed any risk. (As an aside, a couple of years ago, my wife was struck by a foul ball as we approached the ticket booth located outside the stadium of the university where I work. The booth is on a direct line with home plate. As a result, fouls straight back that go over the roof sometimes land in this entrance area. While the stadium does have netting all the way down the lines, there is not netting that overhangs the home plate area. Fortunately, my wife was not severely injured.)

      While I have not come across an incident where a passerby outside a major or minor league park was killed by a ball leaving the stadium, I do know of a number of such incidents that have occurred in sandlot games or in local parks.

      Finally, would the Red Sox be held liable if someone suffered an injury or was killed by a ball leaving Fenway? The answer to that question would depend on how the Massachusetts courts ruled on such a lawsuit.

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