Given his propensity for writing nightmare-inducing stories, there is likely little in this world that scares famed horror author, Stephen King. Haunted hotels, telekinetic vengeful high school girls, and murderous psychopaths are all mundane to King. But safety netting at a baseball game? Now the world has actually gone mad.
In Sunday’s Boston Globe, King authored an Op-Ed lamenting the addition of dugout to dugout protective netting at Fenway Park. King, a season ticket holder “since the days when Wade Boggs was playing third base” likened the new netting to sitting in a cage.
While opining about how the netting obstructs his view of the “breathtaking green of the grass” and “the bright white of the uniforms,” King also made what is essentially the closing argument of nearly all insurance defense attorneys — you got hurt because of your own damn fault, which we fancily call “comparative negligence.”
I spend most of my time defending premises liability lawsuits, so I have a robust appreciation for all of the creative ways in which people get hurt just by not paying attention. I must hand it to King for championing the tort reform cause and advocating for the assumption of risk doctrine:
According to a Bloomberg News report, 1,750 fans are injured in game-related incidents every year. That’s more than the number of batters hit by pitches (about 1,500, according to the Elias Sports Bureau). But almost 74 million fans attended MLB games in 2015, so the chances of being struck by a piece of bat or a foul line drive are pretty slim. Right up there with getting struck by lightning, I’d say. Maybe even less, if the fan is paying attention. Close to the field at Fenway, fans are specifically instructed to do just that by signs reading BATS AND FOUL BALLS HURT! PAY ATTENTION!
. . .
I understand the Red Sox bear some responsibility, but I also accept my responsibility to take care of myself — to the best of my ability — when I’m at the ballpark. Is there a certain element of risk? Yes. Is the risk perhaps increased by being only two rows from the playing field? Yes again.
Insurance companies must be fighting to see who can send King the largest Harry & David gift basket after this Op-Ed. The entire piece rails against the litigious nature of our society, vaguely alludes to a desire for smaller government, and casts aside those who have legitimately been injured — and even killed — at sporting events.
There are questions inherent in the decision to net, and I think they’re bigger than baseball. Like when does protection become overprotection? Is the safety of a fan at a public event like a baseball game the responsibility of the organization putting on that event? (According to the back of every MLB ticket sold, the fan is responsible.) When do safety precautions begin to steal away the pure joy of being there?
. . .
Also, there’s something almost ludicrous about wrapping America’s baseball stadiums in protective gauze when any idiot with a grudge can buy a gun and shoot a bunch of people. I’d much rather see some action taken on that little problem.
While mourning the loss of the terror of a foul ball or broken bat soaring into the stands, King also unintentionally highlighted a fundamental rule in tort law called “The Baseball Rule” that has seen a lot of judicial review in the past decade.
As the Supreme Court of New Mexico summarized in extensive detail in Edward C. v. City of Albuquerque, 241 P.3d 1086 (N.M. 2010), around the 1880s, the rules of baseball evolved to the point where pitchers threw overhand, catchers wore masks and chest protectors, and the grandstand area behind home plate became known as the “slaughter pen,” apparently because of the frequent injuries suffered by spectators watching the game from that area. It was not until 1879 that the first professional team, the Providence Grays, installed a screen behind home plate for the express purpose of protecting spectators.
However, the limited protective screening behind home plate failed to eliminate spectator injuries and did not curtail burgeoning plaintiffs’ claims. As a result, more baseball spectator injury cases came under appellate review, and courts responded by developing a baseball-specific jurisprudence. Courts almost universally adopted some form of what is known as The Baseball Rule, creating on the part of ball park owners and occupants only a limited duty of care toward baseball spectators. In its most limited form, the baseball rule holds:
that where a proprietor of a ball park furnishes screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest and that screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game, the proprietor fulfills the duty of care imposed by law and, therefore, cannot be liable in negligence.
Akins v. Glens Falls City Sch. Dist.,424 N.E.2d 531, 534 (1981).
Yet, home plate screening is not enough anymore. As the civil tort system has shifted from the absolute defenses of contributory negligence and assumption of risk — which functioned as complete bars to plaintiff recovery — to comparative fault tort systems, teams and venues are increasingly at risk of facing litigation for spectator injuries.
This was the motivating factor behind Major League Baseball’s off-season recommendation that all teams install, maintain or extend protective nettings or screens in front of field-level seats between the dugouts to 70 feet within home plate. In addition to litigation exposure, bloodied fans taken out on stretchers is just not good for business.
Although baseball purists like King will likely never fully accept the new netting, remember that people voiced similar opinions when the NHL wanted to install safety nets after the death of a fan in 2002. Now, most fans would probably recoil at not having safety netting at a hockey game.
So while baseball netting may not rise to the level of seat belt laws, most of us do need protection — not from foul balls, but from our own stupidity of checking our cell phones while sitting on the third base line with a lefty at the plate.
Steve Silver is a former sports reporter for the Las Vegas Sun and is now a lawyer in Philadelphia representing athletes in eligibility proceedings. You can reach him at email@example.com or on Twitter @thelegalblitz.
Photo courtesy of Getty Images.