In Foul Ball Injury Litigation, Clubs Have the Upper Hand

[WSJ_law_blog]

In Major League Baseball, there’s a lot of good to talk about at the All-Star Break this year: the surprising Rays, the Cubs in first place, not to mention the ridiculous performance put on by the Rangers’ Josh Hamilton at last night’s Home Run Derby — one of the more impressive athletic feats this blogger has ever seen.


But a darker note descended over Wrigley Field (pictured) last Thursday when a foul ball hit by Cubs’ pitcher Ted Lilly hit 7 year-old Dominic DiAngi in the head, fracturing the boy’s skull and rendering him unconscious. According to this report from the Chicago Trib, as of Monday, DiAngi was much improved and slated to be released from the hospital shortly. (Get well, Dominic!)

The incident raises a question, however, that we’ve long pondered but never had answered: who is liable in such a situation? According to the Trib, “from a legal perspective, a big-league ballpark remains a corner of American life where most responsibility for safety belongs to the fan?at least when it comes to flying objects from the field.”

For starters, there’s that legalese on the back of your ticket, the stuff about assuming “all risk and danger incidental to the sport of baseball.” Courts throughout the ages have largely applied this “assumption of risk” rationale. In other words, if you’re there and close to the action, you’d better be paying attention. Finally, certain states have passed laws — Colorado, Arizona and Illinois reportedly among them — which inoculate clubs from liability in such situations.

Laws? The clubs’ lawyers are no dummies. Some 300 people a year are hospitalized after being hit by foul balls at major and minor league games, according to a study by Robert M. Gorman and David Weeks for their upcoming book, “Death at the Ballpark.”

Now there’s a factoid to drop into conversation during tonight’s All-Star game.