<em>Legally</em> <strong>Speaking</strong>


Q & A: ballpark liability
Jim Juliano - Spring 2006

Jim Juliano spoke on inside-the-park liability in December 2005 at the Baseball Winter Meetings in Dallas. A question-and-answer session afterward included the following:

Q. What screening should we use to protect our fans from foul balls?

A. The team should use industry-standard screening in the area where spectators are most at risk of being hit by foul balls.

Under the baseball rule, which has been adopted by most court jurisdictions, the key is to provide screening for a reasonable number of seats in the most dangerous area—around home plate. Courts have given wide latitude on what is a reasonable number of seats.

Other important points: Make sure the screening is properly maintained. Make regular inspections and document the inspections. If the screening has a hole or a weak spot, get it fixed.

Q. Can the team be held liable for medical services?

A. Typically, the team will hire an outside contractor for emergency medical services—perhaps the local fire department EMS crew or an ambulance contractor.

Under this arrangement, the team will have no control over the type or the quality of the services. However, an injured fan who has a complaint about the quality of medical services will likely assert that complaint against the team.

The team should protect itself by requiring the medical services provider to defend and indemnify the team from any negligence and to produce a certificate of liability insurance that names the team as an additional insured.

Q. Will the recent holding in the New Jersey case Maisonave v. The Newark Bears Professional Baseball Club Inc. spread to other jurisdictions?

A. Time will tell. The court opinion in the Maisonave case applies only in New Jersey, but courts in other states may adopt its reasoning.

In the Maisonave case, the New Jersey Supreme Court extended the possibility of liability to areas of the ballpark where fans are not watching the game. The court rejected the baseball rule, described above, and instead adopted a limited duty rule—the measure of the baseball stadium operator’s duty to protect spectators from baseballs is due care under all the circumstances; owners and operators are in the best position to determine the most dangerous areas of the stadium and take preventive steps to ensure fan safety to a reasonable extent.

Under this rule, a fan assumes the risk of being injured by a foul ball in areas where he or she is reasonably expected to be paying attention to the game. But in other areas, such as concession stands, the fan may have the legal right to recover for a foul ball injury—so the team should provide a reasonable amount of protection.

The New Jersey rule is unusual. A vast majority of states follow the baseball rule—the fan assumes the risk in all areas of the ballpark, as long as the team provides the typical screening behind home plate.

Q. What form of waiver should the team use for on-field participants?

A. Here we are talking about fans who participate in the promos and stunts between innings.

The waiver should clearly state that the fan is giving up any claim for injury due to accidental or negligent actions or omissions by the team or other participants. Legal principles prevent a fan from waiving a claim arising out of a reckless or intentional act. In a minority of states, the waiver may be unenforceable for negligent acts as well.

If the fan is a child (a minor), the parent or guardian must sign the waiver for it to be enforceable.





This website contains general information that should not be considered legal advice or legal opinion concerning individual situations. Legal counsel should be consulted for specific advice.

Copyright 2006 by L. James Juliano Jr.
Legally Speaking® is a registered trademark of the law practice of L. James Juliano Jr.