Liability for spectator safety in sport from on-field incidents in the USA and England & WalesTim Walker
On Friday 5 June 2015, Tonya Carpenter was struck in the face by shards1 of a broken bat at the Fenway Stadium during the baseball game between the Boston Red Sox and the Oakland Athletics. She was sitting a few rows from the field between the backstop and Oakland’s dugout on the 3rd base side (for cricketers, this would be in the region of short backward square leg – it is interesting how each of the two sports’ terminology is completely impenetrable to the other). She suffered what were initially described as life-threatening blunt trauma injuries to the head. She spent a week in hospital and is now on the long road to recovery.
This is far from an isolated case. The incidence of balls and broken bats striking spectators in baseball stadia is surprisingly high. According to a 2014 article by David Govin2, “About 1,750 spectators get hurt each year by batted balls, mostly fouls, at major-league games, or at least twice every three games”. A 2003 study found that the incidence of injuries to spectators from foul balls at Major League Baseball (“MLB”) games was 35.1 injuries per million spectator visits. 3 These statistics reveal only the number of injuries, most of which will be minor cuts and bruises. The incidence of foul balls or pieces of broken bat entering the crowd is far higher. Anonymous sources have revealed that the issue was sufficiently concerning to the players that during labour agreement negotiations in 2007 and 2012 they sought further protective measures for spectators, proposing protective netting extending down the foul lines as far as the foul poles. The issue is therefore familiar to all those involved in the game of baseball.
Ironically, it is the very frequency of such occurrences and the notoriety of such incidents that potentially limits the right of redress that spectators in the USA such as Tonya Carpenter may have against the operators of the stadium. This is because of what is known as the “baseball rule”. This rule provides a potential defence to claims brought against stadium operators in negligence or under the reasonable duty of care owed by property owners to lawful invitees. In a nutshell, she knew of the risks, she nonetheless chose to sit in an unprotected seat and she therefore cannot blame anyone else for the consequences. That begs the question of how far the law ought to protect people from their own recklessness.
The baseball rule is not without controversy. It is not universally applied across the US. It is also subject to challenge in light of the changing environment in baseball stadia. In an article in Marquette Sports Law Review in 2013,4 Matthew J. Ludden argued for reform of the law to meet changing circumstances in the modern game.
An innovative challenge to safety in baseball stadia has now been made in the USA. On 13 July 2015, Gail Payne, a season ticket holder at Oakland Athletics, issued a class action against the Office of the Commissioner of Baseball and Robert D. Manfred Jr, the Commissioner of Major League Baseball (“MLB”)5. Her case concerns safety at MLB stadia and the risks posed by balls and broken bats entering the spectator areas and striking and injuring spectators. Ms. Payne has not herself been injured. She does not claim damages. She has brought the action to seek a mandatory order compelling the MLB to implement changes to MLB rules and practices to require all stadia to install additional safety netting extending as far as the foul poles as a preventative measure.
This article examines the different approaches adopted by the courts in the USA and England & Wales to claims by injured spectators including the responsibility of governing bodies for lapses in stadium safety.
For those, like myself, unfamiliar with the baseball spectator experience and the extent to which it is rooted in American culture, a few background snippets:
- Pitchers can pitch at speeds up to 100mph;
- The aim of the batter is to strike the ball forwards in an arc between 1st base and 3rd base;
- A ball struck or ‘edged’ backwards is a foul. A foul line extending from each side of the batter’s plate past respectively 1st and 3rd bases marks the line forward of which the ball must be struck if its to be in play;
- Balls are routinely struck behind the foul line or ‘edged’ behind the batter into the crowd. Ball speeds off the bat can reach 100mph;
- Catching a ball struck into the crowd is an aspiration for many fans, who attend with their catching mitts for that purpose;6
- Many fans oppose the idea of extended safety netting as they believe it will interfere with their view;
- Bats break relatively frequently. The incidence of bats breaking has increased since the introduction of maple bats (traditionally they have been ash) from about the mid-2000s, which many players now use. The increased incidence of breaking bats has been the subject of MLB research;
- Pieces of broken bat frequently fly into the crowd behind the batter;
- The seats behind the batter tend to attract premium prices due to their closeness to the action;
- In pre-safety net days the spectator area behind the batter used to be known colloquially as ‘the slaughter pen’;
- There are all kinds of distractions during games: loud music, scoreboard pyrotechnics, mascots, immediate wi fi updates on smartphones, etc.
The MLB is fully aware of all of those issues. Since the 19th century, safety nets have been erected at stadia to protect spectators in the area immediately behind the batter. The extent of the netting varies from stadium to stadium. This is the issue that Gail Payne’s case seeks to address. In Japan, where baseball is extremely popular, netting tends to be more extensive, often stretching down the foul line to the outfield walls. Gail Payne’s case seeks similar netting at all major and minor league baseball stadia in the USA. Resistance comes from various quarters, not least from many fans, for whom the idea of catching a foul ball or the perception that their view will be restricted by netting both militate against any change.
The Business Invitee Rule
This is the American equivalent of the common duty of care in England & Wales. As stated in the Restatement (2nd) of Torts para.343 (1965),
“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
- knows or by the exercise of reasonable care would discover the condition, and should realise that it involves an unreasonable risk of harm to such invitees, and
- should expect that they will not discover or realize the danger, or will failed to protect themselves against it, and
- fails to exercise reasonable care to protect them against the danger.”
- knows or by the exercise of reasonable care would discover the condition, and should realise that it involves an unreasonable risk of harm to such invitees, and
One might imagine that:
- The risks of serious injury posed by foul balls or shards of broken bat would be known to a stadium owner;
- In the areas behind the foul lines such risks might be unreasonable;
- The fans might not fully appreciate the risks or take sufficient steps to protect themselves against it;
- The failure to install netting at modest expense was a failure to exercise reasonable care.
Certainly, one might expect at the very last that the question of balancing the risks to the spectator against the protective remedies available to the stadium owner might be left to a jury.
The Baseball Rule
In baseball cases, the business invitee rule is not applied to its full rigour. The courts have traditionally held that the stadium operator owes a more limited duty of care to spectators. In addition, the stadium operator will argue that the spectator assumed the risk inherent in attending. In baseball, that includes the inherent and known risk of balls and broken bats entering the spectator areas behind the foul lines. Stadia routinely print warnings on the back of tickets and seats, and erect signs or flash warnings on electronic screens warning spectators to be alert for balls and bats.
The baseball rule is not universally applied. Nor is it consistent from jurisdiction to jurisdiction. In its strictest form, and the form applied in fewest jurisdictions, it essentially provides that if a stadium owner provides adequate seating protected by safety netting and spectators choose to sit in seats not so protected, then either:
- No duty of care is owed as the claimant has assumed the risk and/or will be assumed to have done so since he is aware of the risks attendant on attending a game7 (the primary implied assumption of risk); or,
- There will be no breach of the duty of care as an adequate safe area was provided8.
In applying both of those principles, no regard is paid to the subjective intent of the spectator, who is assumed to be aware of the risks.
A less restricted version of the rule is to accept that a spectator assumes known and usual risks, but does not accept an increase in those inherent risks by the introduction into the balance of something out of the norm or outside the inherent characteristics of the game. The stadium owner therefore owes a duty not to increase the inherent risks of the game.
An example of this is the case of Edward C. v City of Albuquerque9. In 2010, in a case in which a child sitting in the stadium’s picnic area was struck by a ball hit out of the field of play during batting practice, the Supreme Court of New Mexico overturned the decision of the District Court to apply the most restricted interpretation of the baseball rule and give summary judgment to the Defendant. It examined the history of the baseball rule and reviewed various authorities, concluding (para.39):
"From these seminal and contemporary baseball spectator injury cases, it is clear that the baseball rule, rigid as it may be for injuries arising from necessary and inherent aspects of the game, historically has not been applied to preclude recovery for spectators injured in extraordinary circumstances, where conduct or situations even stadium design flaws leading to injury were beyond the norm. Therefore when a stadium owner or occupier has done something to increase the risks beyond those necessary or inherent to the game, or to impede a fan’s ability to protect himself or herself, the courts generally, and we believe correctly, allowed claims to proceed for a jury to determine whether the duty was breached.”
It concluded that summary judgment was not appropriate and the matter had to be left to a jury:
“We hold therefore, 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 the inherent risk…This approach also balances the competing interest of spectators who want full protection by requiring screening behind the home plate consistent with the Akins approach and allowing other spectators to participate in the game by catching souvenirs that leave the field of play.” [para.41]
Whilst a decision such as Edward does not impose the full business invitee duty of care, it does allow some flexibility involving to a degree a comparative approach between the duty of the spectator to protect himself against inherent risks and the duty on the stadium owner not to increase those inherent risks. The scenarios for debate might include:
- A spectator concentrating on the game being hit by a ball struck by players practising behind the foul line;
- Whether the injury was suffered in the spectator stands or other communal areas, where the spectator will not be concentrating on the game;
- Distractions that were not inherent in the game or game experience, such as the activities of mascots (and the extent to which activities of mascots is inherent in the modern game experience itself might be debateable) or the immediately accessible wi fi updates on mobile devices that encourage contemporaneous spectator interaction;
- The use of the maple bats with their higher incidence of breaking and breaking into multiple pieces.
Even adopting the Edward approach, however, the courts’ ability fully to examine and critique the conduct of the stadium operator in the light of risks that are, or ought reasonably to be, known to it is constrained by the need to consider the baseball rule.
ENGLAND & WALES
To any personal injury lawyer in England & Wales, the immediate reaction to a spectator injury at a stadium is to think of negligence and the common duty of care owed to lawful visitors under the Occupiers' Liability Act 195710. The occupier is likely to be insured to meet any such claim. Only if first redress could not be obtained from following such a route might one seek to widen the search for a Defendant against whom recovery could be made. The relevant governing body might be one such candidate. In that regard, it is interesting to compare the allegations in the Gail Payne lawsuit with the redress available in England & Wales.
The Common Duty of Care
The common duty of care imports several principles:
- The person liable under such a duty is the occupier. It is possible for there to be more than one occupier of premises, each owing a different duty depending on the level of control they exert at the premises. A tenant of premises who of necessity has excusive possession is the occupier to the exclusion of the owner11;
- The duty is owed by the occupier “in respect of dangers due to the state of the premises or to things done or omitted to be done on them.”12
- The duty is owed to lawful visitors. Paying spectators are lawful visitors to all parts of the stadium in which they are permitted to be;
- The standard of care is judged by the purposes for which the visitor was invited or permitted to be on the premises. There is therefore a comparative assessment free from the constraints of a dogma such as the baseball rule.
There is surprisingly limited authority on actions against stadium owners by spectators injured by on-filed activities when attending sporting events. The matter was most recently considered in the Northern Irish case of Browning v Odyssey Trust Co Ltd.13 A 12-year-old girl had attended an ice hockey game with a group of friends. She was sitting 14 rows back from the ice and was not in one of the more recognisably dangerous areas behind a goal. She was injured when one of the many pucks used on the ice during the warm up struck her on the forehead. The claim was brought in negligence and under the Occupiers’ Liability Act (Northern Ireland) 1957, which imposes the same common duty of care as the OLA in England & Wales.
The case is a useful vehicle to discuss as it addresses may of the issues that have vexed American judges. Indeed, the judge even cited an American authority relied on by the Defendants counsel, Austin v Miami University14. In that case, the female Plaintiff had similarly been struck on the head by a puck that left the ice during the pre-game warm up. The judge quoted the court’s conclusion at :
“In reference to the instant claim, the court can find no difference between baseball and hockey when applying the doctrine of primary assumption of the risk to spectators who are injured by flying objects leaving the area of play and entering the stands. … There is no obligation on the part of the operator of a hockey game such as Miami University to protect a spectator against being hit by a flying puck, a danger incident to the entertainment which any reasonable spectator could and did foresee. Evidence has shown the defendant take measures by erecting glass and boards around the perimeter of the Ice Arena to provide some safety to spectators from errant pucks. Nevertheless, pucks do enter the stands; an inherent risk in the game of hockey which is common, expected and frequent.”
Amongst the relevant factual considerations in Browning were:
- The warnings to spectators to keep their eyes on the puck at all times:
- on the back of tickets
- on about 20 signs around the arena
- By PA announcements;
- The height of the perspex glass at the end and sides both exceeded the minimum requirements set down by the International Ice Hockey Federation;
- To provide netting all around the arena would cost a further £50,000-£60,000 since the netting would have to be placed from rooftop to the Perspex; and,
- Over 14 years of crowds totalling circa 120,000 per season, there had been only one other incident of spectator injury form a flying puck.
The judge regarded the issue as one of negligence/common duty of care. He did not regard the issue as one of volenti, both because it is at the very least doubtful that volenti applies to negligence and also because of the young age of the Claimant. Relying on Woolridge v Sumner15, he said:
“Thus spectators do not assume the risk of negligence simply by being present at the event.” [para.17]
and, with regard to the 6 year old Claimant in Murray v Harringay Arena16,
“A small child, no more than the plaintiff in this case, cannot be said to have agreed to assume risk and/or waived a right to claim.” [para.18]
The judge was aware that it was inappropriate to judge the case on the subjective understanding of risk of a 12-year-old girl. He applied a standard of care appropriate to the reasonable spectator that assumed that everyone, whatever their age, assumed the level of risk that such a spectator would foresee. It is against the understanding of the reasonable, not exceptional, spectator that the stadium operator has to gauge his safety measures. This is interesting because American judges have also been uneasy with the idea of a child voluntarily assuming risk. A similar solution to the problem has been applied in the primary implied assumption of risk applicable under the baseball rule (above).
When considering liability, the judge took into account the context within which the common duty of care was applicable:
“Thus the ordinary principles of negligence apply in cases such as this but a court must recognise that such principles require that, in a sporting context, the circumstances derived from that context go into the melting pot when judging the issues of reasonableness which are inherent within the principles themselves. The context will fashion the decisions required in the application of legal principles.” [para.22]
He pointed out that it was not the function of the organiser to ensure spectator safety, particularly in the face of risks inherent in watching the relevant sport, but to minimise risks where reasonably practicable. Relying on the New Zealand authority of Evans v Waitemata District Pony Club17, he also recognised that spectators only anticipated and could be taken to assume responsibility for the risks “which prudent management and control and sensible competition cannot be expected to avoid”18. Finally, he noted that in and about deciding what safety measures were appropriate, regard should be had to industry standards, though they were by no means determinative.
The judge concluded that the stadium was as safe as could reasonably be expected and that:
“The plaintiff was injured as the result of a danger inherent in the sport itself which she must be taken to have accepted and against which the defendants cannot reasonably have been expected to guard.” [para.30]
In so deciding, the judge observed that:
“… a defendant generally has no duty to prevent exposure to risks which are inherent in activities which are freely undertaken and that particularly in fast moving sports in a competitive setting, risks will be inherent in the sport itself. Cricket balls, hockey balls, footballs, golf balls, rugby balls etc are regularly hit with force into spectators in various arenas/courses and grounds. Crowds will often be even closer to the play than occurred in this instance.” [para.25]
One could have taken both of those observations from American authorities applying a less strict version of the baseball rule.
All of those considerations flow from an unfettered comparative approach to the respective responsibilities of the spectator and the stadium occupier to guard against anticipated risks. They form the subject of debate in cases on both sides of the Atlantic. The advantage that the jurisdiction of England & Wales has is that the consideration of the balance of risk is free from the constraints of an over-dogmatic adherence to a principle, the baseball rule, which in some American jurisdictions assumes a significance that interferes with what lawyers in England & Wales lawyers would regard as a freedom to take into account and balance all factors in determining the standard of care applicable, without the need to create such artificial devices as considering whether the stadium operator ‘increased the risk’ to the spectator.
The difference may simply come down to a question of the degree of risk knowingly accepted. What, perhaps, a lawyer in England & Wales would find hard to accept is the idea of a spectator at a cricket match being allowed to watch unprotected from a position as close and potentially dangerous as square leg or square cover or just behind the slip cordon, fully exposed to a firm pull or flashing cut or flying edge.
The Gail Payne Case
Setting aside the difficulty of obtaining a mandatory injunction in England & Wales and the procedural rules surrounding the bringing of group actions, the Gail Payne case does highlight whether or not a governing body ought to bear responsibility for spectator injuries.
In England & Wales it potentially can. The first issue is whether or not a duty of care is owed under the principles in Caparo v Dickman19. In Watson v British Boxing Board of Control Ltd20 the Court of Appeal dismissed the BBBC’s appeal against a finding that it owed a duty of care to a boxer injured in the ring for failing to have adequate medical facilities available to protect the boxer against the known risks of such a bout. Lord Phillips MR commented that he had no doubt that the judge broke new ground in the field of negligence. The judge had relied on Perrett v Collins. The Court of Appeal supported the judge’s decision.21 The proximity that gave rise to the duty of care arose from:
- The fact that it was the object of boxing to injure the opponent;
- The BBBC by its rules and regulations governed boxing;
- The rules and regulations were in substantial part designed to reduce the risk to boxers, the physical safety of whom was of prime concern to the BBBC;
- All who participated in boxing had to comply with those rules and regulations;
- Rules made specific provision for the medical facilities that were to be made available ringside;
- Mr Watson’s understanding as a boxer was that the board undertook responsibility for all the medical aspects of boxing, including the medical supervision of boxing contests, in the United Kingdom
Lord Phillips relied on the following principle derived from Perrett (above):
“It seems to me that the authorities support a principle that, where A places himself in a relationship to B in which B's physical safety becomes dependent upon the acts or omissions of A, A's conduct can suffice to impose on A a duty to exercise reasonable care for B's safety. In such circumstances A's conduct can accurately be described as the assumption of responsibility for B, whether "responsibility" is given its lay or legal meaning.” [p.1151]
and later set out the factors establishing the relationship of proximity:
“The board, however, arrogates to itself the task of determining what medical facilities will be provided at a contest by (i) requiring the boxer and the promoter to contract on terms under which the board's rules will apply and (ii) making provision in those rules for the medical facilities and assistance to be provided to care for the boxer in the event of injury. In this way the board reduces this aspect of the promoter's responsibility to the boxer to the contractual obligation to comply with the requirements of the board's rules in relation to the provision of medical facilities and assistance. The board assumes the responsibility of determining the nature of the medical facilities and assistance to be provided.” [p.1161]
The Court of Appeal found it fair just and reasonable to impose a duty of care in light of that proximity and reliance by Mr. Watson. It upheld the finding of a breach of that duty of care in the failure by the BBBC to prescribe an adequate medical protocol to deal with a boxer who was knocked out and had therefore sustained a significant head injury.
Mr. Watson, of course, was a participant. He was also a special kind of participant in that he was involved in a sport recognised for its health risks and regulated in order to minimise those risks. Would a similar duty of care be applied to spectators?
There is precedent. In Horne & Marlow v R.A.C. Motor Sports Association Limited23, the RAC was held vicariously liable for negligence of its stewards at a special stage of the Lombard RAC rally at which they were employed in failing for a considerable time to advise the plaintiffs to move from a dangerous part of the ground where they were eventually injured. More recently, in Fenton v Thruxton (BARC) Ltd24, the Motorcycle Circuit Racing Control Board Ltd was found negligent in failing by its course inspectors adequately to consider and carry out assessments of the risks associated with spectators at a motor racing circuit. The existence of a duty of care was conceded. In finding negligence, the judge applied a comparative approach, balancing the wishes of the inspectors against the obligation to provide safe viewing:
“The pre-accident track inspections should have been an exercise in identifying and evaluating comparative risks. They were not. The inspectors should have considered the safety requirements of three classes of persons: competitors, officials and spectators. Each class had different characteristics and requirements. For example, spectators usually enjoy being as close to the track as possible and having an unobstructed view of the motor racing. However they also expect to be protected from the consequences of an accident. It is not always possible to reconcile those desires and where there is a conflict, safety considerations should have prevailed.”
It is therefore at the very least arguable that a governing body that took responsibility for regulating stadium safety and/or carrying out safety inspections could be found to owe a duty of care to a spectator injured and to be negligent if it failed to fulfil that duty. I return to my comment above:
“What perhaps a lawyer in England & Wales would find hard to accept is the idea of a spectator at a cricket match being allowed to watch unprotected from a position as close and potentially dangerous as square leg or square cover or just behind the slip cordon fully exposed to a firm pull or flashing cut or flying edge.”
For the ECB as governing body to be held liable for a injury to a spectator seated in such an area, it would first have to be established that there was a relationship of sufficient proximity between it and the spectator relied on by the spectator such that it was fair, just and reasonable to impose a duty of care:
- Was it the responsibility of the ECB to regulate safety features at cricket grounds?
- Did its regulations prescribe to stadia operators where spectators could sit or prescribe the safety measures that the stadium operator had to implement?
- Could matches be played unless such measures were complied with (as with the licensed boxing matches or motor racing events)?
- Did it carry out risk assessments at stadia?
Assuming a duty of care existed, there is then the question of negligence. A balancing exercise is required between the desire of spectators to sit as close to the action as reasonable, the safety considerations of their doing so and the interests of the commercial enterprise seeking to entice paying spectators, whose wish is to enhance the spectator experience with unrestricted views, closeness to the action and involvement in the game. As the judge determined in Fenton (above), where there is a conflict, safety considerations should prevail. It is in the interpretation of that balancing exercise that the courts of England & Wales may part company with their American counterparts as a result of the latter’s struggle with the appropriate implementation of the baseball rule.
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- Tags: Baseball | Boxing | England and Wales | Football | Health & Saftey | Ice Hockey | Major League Baseball (MLB) | National Hockey League (NHL) | Occupiers’ Liability Act | Safety | United Kingdom (UK) | USA
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About the Author
Tim's practice focuses on the problems faced by small and medium sized enterprises in the commercial and employment fields. As a former international hockey player and qualified coach, distinctly average golfer, road cyclist and long term Liverpool fan, Tim also has a keen interest in sport and legal matters relating to sport.