On the ball: does a baseball spectator assume a normal risk of injury by a foul ball? (NRPA Law Review).

In the case of Thurmond v. Prince William Baseball Club, INC., No. 020116 (Va. 1/10/2003) the Virginia state supreme court was asked whether a spectator at a minor league baseball game assumed the risk of being struck by a batted foul ball. In resolving this question for the first time, the Virginia high court found a general consensus among courts in other jurisdictions that had considered the issue. As a general rule of law in most jurisdictions, the Virginia supreme court noted that stadium owners or operators of ballfields owe spectators only a "limited duty" of care "to screen the area behind home plate and to offer a sufficient amount of seating for spectators who reasonably may be anticipated to request protected seats in the course of an ordinary game." In this case, the state supreme court had to determine whether to adopt this majority rule in Virginia.

In August 1997, the plaintiff attended a night baseball game at G. Richard Pfitzner Stadium in Prince William County to see the Prince William Cannons. The Cannons are a Class A minor league professional baseball team affiliated with the St. Louis Cardinals, which contracted with the Cannons to provide the Cannons with players and coaches as part of the Cardinals' player-development program.

In the stadium, spectators were warned of the risk of being struck by objects batted or thrown from the field. Warning signs, measuring three feet by three feet, were posted at entrances to the seating areas. These signs stated: "Be Alert! Objects batted or thrown into the stands may be dangerous." All persons entering the stadium walked past one of these entrances, regardless of the location of their seats.

In addition, the back of each admission ticket contained a printed warning that stated, in part:

   The holder of this ticket assumes all risk
   and danger incidental to the game of
   baseball ... including specifically (but
   not exclusively) the danger of being
   injured by thrown bats, thrown or batted
   balls.... and agrees that the participating
   clubs or their officials, agents and
   players are not liable for injury related
   from such causes.

Twenty to 30 seats were reserved for each game in the screened area behind home plate for spectators who requested to be reseated because they weren't comfortable sitting in the unscreened areas of the stadium.

Thurmond sat with her family and friends high in the bleachers on the third base side of the stadium. This was Thurmond's first visit to the stadium, and she didn't know that she could have requested a seat in the screened area behind home plate. She also didn't read the warning printed on the back of the admission ticket because she never had possession of her ticket, which her friends had given to her husband. However, Thurmond remained alert at all times during the game, watching the hitters and batted baseballs.

During the eighth inning, a line drive foul ball was batted toward Thurmond. Although Thurmond saw the baseball approaching, it was moving too rapidly to allow her to take any evasive action. The ball struck Thurmond directly on the right side of her face, and she sustained various injuries, including fractures of her facial bones, damage to her right eye socket and extensive nerve damage.

Allegations of Negligence

Thurmond sued the Cannons, alleging that she was injured as a result of the team's negligence in failing to provide adequate warnings at the stadium and to operate and maintain the stadium in a safe condition to prevent injuries to invitees. In response, the Cannons filed a motion for summary judgment, arguing that Thurmond assumed the risk of injury as a matter of law when she chose to sit in an unscreened area of the stadium. (In a motion for summary judgment, the Cannons asked the trial court to rule that there was no legal basis for liability and dismiss Thurmond's claims without a trial.)

In opposing the Cannons' summary judgment motion, Thurmond asserted that the issue of whether she voluntarily exposed herself to a known risk couldn't be resolved without her testimony at a trial. In addition, Thurmond questioned the adequacy of the stadium facility and the warnings provided by the Cannons. In so doing, Thurmond asserted that the stadium's field dimensions didn't meet the minimum standards specified in Major League rules, which the Cannons organization was bound to follow by their player-development contract with the Cardinals.

Specifically, Thurmond contended that the rules required a minimum distance of 60 feet between home plate and the backstop, and between the third base line and the spectator stands, and that the stadium didn't comply with these requirements. The distance at the stadium between home plate and the backstop was 53 feet, 8 inches. Although the record didn't show the distance between the third base line and the spectator stands, Thurmond's counsel agreed during oral argument that the distance was "about five to six feet" less than the 60-foot requirement.

In response to Thurmond's allegations, the Cannons argued that the rules concerning playing field dimensions and lighting conditions were promulgated to ensure uniformity of conditions for the benefit of the players, not for the safety of the spectators seated in the stands. The Cannons also asserted that the rules merely recommended, rather than required, a distance of 60 feet between the foul lines and the stands, and between home plate and the backstop.

The trial court awarded summary judgment in favor of the Cannons holding that, as a matter of law, Thurmond assumed the risk of being struck and injured by a batted foul ball. Thurmond appealed.

On Appeal

On appeal, Thurmond argued that the trial court had erred in granting summary judgment to the Cannons. According to Thurmond, further proceedings in the trial court were necessary to consider the adequacy of the stadium lighting, the field dimensions and the need for warnings that weren't provided by the Cannons. Moreover, Thurmond contended that a full trial was necessary to determine whether she had subjectively appreciated these dangers and, thus, assumed the risk of injury under the circumstances of the case.

In response, the Cannons reiterated its position that Thurmond assumed the risk of being injured by a batted foul ball as a matter of law because "the risk of injury from a batted foul ball was necessarily apparent to Thurmond as a matter of common sense." As a result, the Cannons argued that the stadium lighting, field dimensions and the content of the warnings Thurmond received weren't relevant to the issue of negligence liability and the assumption of risk defense in this particular instance.

Applicable Rule of Law

As a general rule, the state supreme court noted that "a person's voluntary assumption of the risk of injury from a known danger operates as a complete bar to recovery for a defendant's alleged negligence in causing that injury."

   Application of the defense of assumption
   of risk requires use of a subjective standard,
   which addresses whether a particular
   plaintiff fully understood the nature
   and extent of a known danger and voluntarily
   exposed herself to that danger.
   Thus, the defense of assumption of risk
   ordinarily presents a jury question, unless
   reasonable minds could not differ on
   the issue.

Moreover, the state supreme court found that "the great weight of authority from other jurisdictions" had extended the assumption of risk doctrine to include the following general rule as a matter of law: "A spectator assumes the normal risks of watching a baseball game, which includes the danger of being hit by a ball batted into an unscreened spectator area."

In determining whether to adopt this general rule for application in Virginia, the state supreme court considered "whether a particular plaintiff fully understood the nature and extent of a known danger and voluntarily exposed herself to that danger." As noted by the court, the doctrine of assumption of the risk focuses on the plaintiff's subjective knowledge and appreciation of a particular danger. In the opinion of the court, the risk of being struck by a foul ball was one that's likely to be understood by the ordinary spectator at a baseball game.

   No one of ordinary intelligence could see
   many innings of the ordinary league
   game without coming to a full realization
   that batters cannot, and do not, control
   the direction of the ball which they
   strike and that foul tips or liners may go
   in an entirely unexpected direction. One
   could not hear the bat strike the ball
   many times without realizing that the
   ball was a hard object. Even the sound of
   the contact of the ball with the gloves or
   mitts of the players would soon apprise
   him of that.

Accordingly, "when a particular adult spectator of ordinary intelligence is familiar with the game of baseball," the state supreme court held "that spectator assumes the normal risks of watching a baseball game, including the danger of being hit by a ball batted into an unscreened seating area of a stadium."

Applying this rule to the facts of the case, the state supreme found Thurmond had indeed assumed the risk of being hit by a ball batted into an unscreened seating area of the stadium.

   We conclude that reasonable persons could not disagree that
   Thurmond, who conceded that she remained alert throughout
   the game and observed hitters and batted balls for more than
   seven innings before being injured, was familiar with the game
   of baseball, knew the risk of being injured by a batted ball and
   voluntarily exposed herself to that risk by remaining seated in
   an unscreened area.

On appeal, Thurmond had contended that she didn't "knowingly assume" the risk of "the allegedly deficient lighting conditions and playing field dimensions" because these risks "were not normal hazards" associated with batted balls. The state supreme court rejected this argument.

   First, the field lighting conditions are not material to a
   resolution of this case because Thurmond conceded in the trial
   court that she saw the baseball approaching in her direction
   before it struck her.

   Second, the variance in field dimensions was not material to the
   hazards created by the uncertain course of every batted ball's
   trajectory, a hitter's lack &control over each ball's direction of
   travel or the force with which any batted ball can be hit into an
   unscreened spectator area. Moreover, Thurmond was not seated
   in the six-foot area of the spectator stands that she contends
   should have been part of the playing field. Thus, we hold that
   Thurmond knew and voluntarily exposed herself to the hazards
   of the game by remaining in the unscreened area after watching
   seven innings of play from that unprotected location.

Accordingly, the state supreme court held that "the trial court did not err in awarding summary judgment" to the Cannons, because "Thurmond's assumption of the risk was a complete bar to her recovery in this negligence action." The state supreme court, therefore, affirmed the trial court's judgment in favor of the Cannons.

Dr. Kozlowski is an associate professor in the health, fitness and recreation resources program at George Mason University, in Fairfax, Va., and legal/legislative counsel to the NRPA Division of Public Policy. He can be reached [e-mail] or http://mason.gmu.edu/~jkozlows.

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