Will the "Baseball Rule" Apply to Reopening Movie Theaters and Theme Parks?

What more than a century's worth of lawsuits over foul balls can teach us about placing legal responsibility for COVID-19 injuries.
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The year was 1913. Babe Ruth was still a few months away from pitching his first game for the Boston Red Sox. Archduke Franz Ferdinand of Austria had yet to be assassinated in an event that would soon plunge the world into war. And a deadly strain of virus called the "Spanish flu" was a few years off from infecting 28 percent of the country's population and killing an estimated 675,000 Americans. In 1913, a relatively innocent time, a novel phenomenon was making its mark for the first time in the U.S. judiciary system: Judges were examining the very first lawsuits from spectators injured by errant foul balls during baseball games.

In a pair of cases — Crane v. Kansas City Baseball & Exhibition Co. and Wells v. Minneapolis Baseball & Athletic Ass'n — appellate judges in Missouri and Minnesota came to what's now known in tort circles as the "baseball rule." It recognizes that fans attend games with knowledge that they can get beaned by a baseball. Thus, stadium owners can't be held negligent so long as they make minimal precautions to screen the most dangerous parts of the stadium. Otherwise, fans assume the risk of enjoying this form of entertainment.

For more than a century, the "baseball rule" has existed in various forms (as torts are a creature of state law) and endured to provide the baseball industry with some protection from litigation. Baseball has merely a limited duty of care toward patrons with respect to foul balls — that is, until recently, for as society continually gets to redefine who gets exculpated, there exist some recent cracks to the baseball rule.

But more on that later. In the meantime, as much of the nation eyes an economic restart after months of being shuttered thanks to the COVID-19 pandemic, will reopening movie theaters, theme parks and other entertainment venues enjoy something akin to the baseball rule?

Disney clearly hopes so.

As its Orlando resort again welcomes visitors, a disclaimer on the Disney World website states, "An inherent risk of exposure to COVID-19 exists in any public place where people are present. COVID-19 is an extremely contagious disease that can lead to severe illness and death. … By visiting Walt Disney World Resort, you voluntarily assume all risks related to exposure to COVID-19."

Can Disney simply disclaim liability like a school kid who tags another and yells, "You're it!"? Some legal observers find that doubtful. "It's unenforceable," says Eric Turkewitz, a New York attorney who runs the Personal Injury Law Blog.

Indeed, even in baseball, courts have repeatedly held that the tiny print on the back of tickets can't stop lawsuits. (See this opinion in Illinois or this one in Idaho.) That's because there's not always a good way to prove a ticket holder has actually read the disclaimers. One also has to prove the buyer assented to its terms, namely the assumption of risk.

That said, Turkewitz says the Disney World disclaimer isn't totally pointless. Florida is one of many states operating under what's called a comparative negligence standard. That means that if someone tests positive for the novel coronavirus and files a lawsuit and can trace the infection to a Disney World visit, a court may look to apportion some fault for the injury to the plaintiff. Putting up warnings and spelling out the risks — on websites, on resort grounds, etc. — may prove useful in court down the line. One can safely assume that Disney has some tort expertise, having faced litigation throughout the years over calamities such as alligators, moats, scary rides that induce heart attacks, perverts in Donald Duck costumes and scalding hot nacho cheese.

Of course, a highly infectious disease raises the prospect of mass liability. A patron contracting COVID-19 seems a lot more foreseeable than a toddler getting dragged to death by an alligator coming out of the Seven Seas Lagoon. The potential for thousands — maybe even tens of thousands — of lawsuits is very real, which certainly explains why business owners are currently lobbying lawmakers for protection from coronavirus-related lawsuits. Less discussed are the details of any such tort reform. It's certainly conceivable that lawmakers could craft something like the baseball rule for reopened entertainment venues and other business establishments. Should they?

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What do a century's worth of lawsuits over foul balls teach us if anything? Start at the beginning with the pioneers of unlucky S.J. Crane and Echo Wells, who could have picked safer spots to watch a baseball game but instead chose areas down the third base line and in the outfield free of any protective netting. Then again, getting assaulted by a baseball was probably beyond their imagination just as today, someone who feels invincible might throw a shot back at a Wisconsin bar.

As law professors Nathaniel Grow and Zachary Flagel point out in their journal article "The Faulty Law and Economics of the 'Baseball Rule,'" it took many decades until the first reported decision in a foul-ball liability case. The modern form of baseball, after all, dates back to the mid-19th century while the Crane and Wells decisions didn't come until 1913. What explains that delay? Grow and Flagel attribute this to changes in the game — pitchers switched from throwing underhand to overhand, and batters could no longer call the location of pitches — although it might also be explained by the burgeoning popularity of the sport and the construction of larger and larger ballparks to accommodate greater attendance. More games, more pitches, more fans packed together eventually leads to disastrous foul balls by the sheer law of probabilities.

Regardless of how one explains decades without legal incident, fan injuries from foul balls a century ago seems like it was a relatively rare occurrence, or at the very least wasn't sufficiently worrisome enough to head off the baseball rule. As the Wells opinion states, "[T]he perils are not so imminent that due care on the part of the management requires all the spectators to be screened in. In fact, a large part of those who attend prefer to sit where no screen obscures the view. The defendant has a right to cater to their desires."

Let freedom (and an unobstructed view as close to the action as possible, thank you very much) ring!

In the 107 years since the Crane and Wells decisions, attending a professional baseball game as a spectator has grown more dangerous. Why? Maybe it's because pitchers throw the ball harder while hitters are stronger and use more technologically advanced bats. Or perhaps it's because fans are ever more distracted by big screens in the outfield and mobile phone screens on their laps. Theories abound. According to a Bloomberg analysis, some 1,750 fans are hurt by foul balls each year.

Meanwhile, injured fans have continually tried their luck in court. For the most part, the baseball rule has withstood those courtroom challenges. In fact, some states have codified the baseball rule to allow certain tort defendants to argue an assumption of risk. And Major League Baseball teams have gotten the benefit of a near liability shield for foul balls. To pick one of many examples, check out this 1986 opinion concerning a woman who was injured while attending a baseball game at Dodger Stadium. An appellate court spoke about the possibility of placing all spectators behind a protective screen as well as the option of increasing the price of tickets to cover the cost of compensating injured persons. "To us, neither alternative is acceptable," wrote a judge. "In our opinion it is not the role of the courts to effect a wholesale remodeling of a revered American institution through application of the tort law."

Lately though, the baseball rule has been the subject of attacks, both in academia and in courts, upon images of gruesome injuries and a critical reexamination of the deferential treatment afforded the national pastime.

In 2013, in the Marquette Sports Law Review, Matthew Ludden pointed to the increased risks to spectators as a reason why the rule should be rewritten so that stadium owners bear a reasonable duty of care. According to Grow and Flagel in their own article, it also makes sense to reject the rule given a more modern economic appreciation of who is in the best position to provide safety. When deciding what level of reasonable care is required, they urge courts to consider whether plaintiffs or defendants could have most efficiently avoided injuries. In this instance, they conclude that "many foul-ball-related injuries could easily be avoided through the installation of additional safety netting at little cost to the team."

Absent a court order, but either due to public pressure or some internal sense that more could be done, MLB commissioner Rob Manfred announced this past December that all MLB ballparks would feature expanded netting for the 2020 season. (Of course, the novel coronavirus has interfered with games, and if the season does get underway, it'll likely be without fans in attendance. That's an irony we'll leave untouched but for this brief note.)

Then something exceptional happened. MLB's announcement actually helped push California away from the baseball rule altogether.

In February, in a case over a young female who was struck in the face by a line drive foul ball during U.S. Baseball's national team trials in 2014, an appeals court took notice of MLB's action and wrote about the importance of adopting a practical view of safety. According to the opinion in Summer J, "allegations incorporating the views of experienced baseball professionals that extending protective netting along the first- and third-base lines will minimize the inherent risk of being injured by a foul ball without fundamentally changing the game adequately identify an enforceable duty, at least for pleading purposes."

An enforceable duty. So what does this all mean for legal responsibility in the age of the coronavirus? And what's the COVID-19 equivalent of extending protective netting? Is it maintaining a clean environment by disinfecting public areas repeatedly? Is it providing personal protective equipment? Is it doing everything to accommodate greater social distancing?

"I'm 62 and I grew up in New Jersey, and everyone knew you could get beaned by a baseball," says David B. Stern, a partner at Jeffer Mangels. "We went to Yankees games and were told to bring our mitts and watch the ball. Now you've got phones, and people aren't paying attention. Owners know that. Maybe you need to take care of these fans. Is it coddling? Yes. But circumstances have changed."

Stern, who formerly worked in-house at Twentieth Century Fox, Showtime Networks and other entertainment companies, believes that companies will get in trouble if they're not keeping up with best practices in protecting their customers. His firm is among many now advising clients on safety practices. "If they don't, it'll be the equivalent of getting beaned by a ball," says Stern. "They will lose in discovery. It'll show a lack of care or disregard or contempt for the victims."

Of course, there are reasonable arguments from the Chamber of Commerce why employers need and deserve liability protection at this moment. Certainly, the distasteful prospect of ambulance-chasing personal injury lawyers becomes potent imagery to those desperate for economic recovery. That's understandable.

But realize that law can be a catalyst for behavior.

Grow, a professor at Indiana University specializing in business law and ethics, doesn't think it's a particularly bright idea to extend something like the baseball rule to a company like Disney. While he feels that a theme park goer may bear more responsibility for a COVID-19 injury than someone hurt by a foul ball at a baseball game, he says, "Giving immunity creates no incentive to take precautions. Even if a company like Disney can't make everything 100 percent safe, there are certainly things they can do to mitigate risk."