Alberto Bernabe: "Play Ball!...and Change the Approach to Baseball Torts"

          As the spring approaches, the attention of many sports fans turns to baseball.  Fans are looking forward to the beginning of the major league season.  Parents (including myself) are starting to take their kids to little league practice.  Baseball.  It is the great American pastime.  It is also the source of a lot of interesting litigation that brings into question some basic principles of tort law.

          Many baseball related cases have been decided using a confused analysis based on the argument that people (both participants and spectators) assume the “inherent risks involved in the game,” often referred to by the poorly chosen term “primary assumption of the risk.”  Unfortunately, the analysis in most of those cases is not particularly coherent and I continue to be amazed at the fact that after so many years of common law so many courts are still unclear about the concept of assumption of the risk as it relates to sports and recreational activities.

          Take the cases involving claims against bat manufacturers for injuries caused by aluminum bats, for example.

          In the past few years there have been a number of cases imposing liability on aluminum bat manufacturers because the ball travels off them at a much higher rate of speed putting fielders are at a higher risk of injury.  In response, you often hear criticism from defendants and others that are quick to quote the notion that players assume the inherent risks of the game.  Using the same argument, some take the rhetoric even further and use it to attack the tort law system itself claiming that the lawsuits are just another example of plaintiffs’ lawyers bringing frivolous claims.  

          I think those arguments miss the point.  Granted; risk, danger and injuries are a part of life, and of baseball.  However, tort law is one of the mechanisms we can use to regulate the level of risk we are willing to live with.  You can’t play baseball unless the hitters use a bat. But it does not have to be an aluminum bat. Why expose the players to more danger if there is a safer alternative? The alternative is not perfect and it won’t eliminate all the risk, but it is safer.   

          The point is that litigation often helps society define the limits of the acceptable level of risk we are willing to take for any given activity.  We have accepted the risks of baseball when played with hardballs and solid wood bats.  But as we start our kids playing the game earlier and earlier we want them to be as safe as possible while still playing the game.  That is why we now require better helmets and protection.  That is why Little League Baseball has banned the use of dangerous aluminum bats and regulates those that are permitted for competition.

          Now, some argue the resulting injuries would be the same even if the bats are made of wood. I have no expertise on that question, but I can concede that it may be true in some cases.  On the other hand, I am sure it is not true in all cases, and it is those cases that matter.

          The risks inherent to baseball have changed over the years and it is perfectly reasonable to find that our tolerance for more risks has a limit.

          The cases involving spectators are even more problematic.  

          Just a few days ago, this blog reported on a case from Idaho in which the court declined to adopt what it called “the baseball rule” which it described as a rule that releases baseball park operators from liability based on the notion that spectators assume the risk of being hit by foul balls.  Many jurisdictions do follow this notion, usually again referring to it as the confusing concept of “primary assumption of the risk.”

          The confusion starts because it is often said that spectators assume the risk of getting hit by foul balls at baseball games and that, thus, those in charge of the park do not have a duty to protect them.  Neither of the two parts of this statement is entirely correct. Those members of the public who sit behind home plate (and half way to first and third bases) do not assume the risk and the defendants do have a duty to protect them.  

          The problem is that the statement confuses the concept of duty – which is an element of the cause of action’s prima facie case – and assumption of the risk – which is an affirmative defense that does not challenge an element of the cause of action’s prima facie case.

          Assumption of the risk is a defense based on an evaluation of the plaintiff’s conduct in order to determine if he or she voluntarily decided to undertake a known risk.  However, the so–called “primary assumption of the risk” doctrine has nothing to do with an evaluation of the plaintiff’s conduct.  Primary assumption of the risk is a policy question that asks the court to decide whether to impose a duty on the defendant to act to protect others from certain risks.  In other words, the application of the concept of primary assumption of the risk is simply another way of asking whether the defendant owes a duty to the plaintiff.  

           When applied to baseball, the policy question should be answered the way the court in Idaho answered it recently.   An operator of a baseball stadium has a duty to protect the spectators sitting in the most dangerous part of the stadium and to exercise ordinary care to prevent unreasonable, foreseeable risks of harm to others.  This means that a defendant can’t claim a plaintiff assumed a risk created by the defendant’s own negligence.

          This approach will yield good results not only in spectator injury cases but also in other sports cases.  

          Play ball!

--Alberto Bernabe, Professor, The John Marshall Law School