Two consumer rights law firms filed a putative class-action lawsuit today against Major League Baseball and Commissioner Rob Manfred for their alleged failure to act to protect ballpark spectators against foul balls and bat injuries. The suit seeks no monetary relief – only to force Major League Baseball to install safety netting from foul pole to foul pole at all major and minor league parks by the beginning of the 2016-2017 MLB season.

The complaint, which can be read here and which is embedded below, alleges that despite Manfred and MLB’s statements about caring about fan safety above all else, “Manfred and the Office of the Commissioner have failed to act.” It claims that Manfred and MLB “have failed to follow the path of other professional sports in the United States and in other countries that have taken readily-available and relatively inexpensive steps to protect its spectators.” The suit goes on to cite players’ concerns about fan safety, saying “tellingly, those who know the game and its dangers best – the players – have demanded since at least 2007 that protective measures be put in place – something Manfred and the Office of the Commissioner have never disclosed to the public.” This is something we at HBT have noted recently.

The suit alleges that every year “fans of all ages, but often children, suffer horrific and preventable injuries, such as blindness, skull fractures, severe concussions and brain hemorrhages, when they are struck by a fast-moving ball or flying shrapnel from a shattered bat,” and that Manfred has “continued to make statements that promote Major League ballparks as safe and family-friendly and has sought to increase attendance of young fans – a demographic that is highly at risk for foul ball and bat injuries.”

The suit, filed on behalf of season ticket holders, with an Oakland A’s fan named Gail Payne as the lead plaintiff, was filed in federal court in the Northern District of California. The plaintiffs’ law firms are from Seattle and Corpus Christi, Texas. The 48 page complaint recounts the evolution of spectator protection, the risks posed by foul balls and shattered bats, injury rates among fans — under the colorful heading “The Modern Day Slaughter Pen.” Interestingly, Payne, the lead plaintiff has not suffered any injuries from foul balls or broken bats. Rather, she alleges the following:

Gail Payne, is an individual residing in Alameda County, in Oakland, California. She has been a devout fan of Major League Baseball’s Oakland A’s for nearly 50 years, since her aunt took her to her first A’s game in 1968. She loves attending games, has attended many, and this year purchased tickets for the first time. She bought tickets in section 211, which she believes is less expensive than the sections covered by protective netting. At her seats, which are in an exposed section along the first base line, she fears for her and her husband’s safety and particularly for her daughter. Due to the fact that at Oakland Coliseum, the protective netting behind the backstop is minimal, and does not extend to her seat, foul balls have shot into the stands around her more times than she can count. Gail estimates that at every game, at least three or four balls enter her section alone, and she is constantly ducking and weaving to avoid getting hit by foul balls or shattered bats. On one occasion Gail ducked to avoid a foul ball flying her way, but as alleged herein there is no guarantee she can duck the next time. In addition, due to the fact that at Oakland Coliseum, there are many, many distractions, such as a giant screen across from her section, and fan-participation contests that involve texting or using applications on mobile devices, she believes she and other fans are at increase risk of injury.

The theory is that Payne and everyone else who might join this suit are all in a “Zone of Danger,” and thus have standing to assert the claims.

While the claims here and the copious data cited by the plaintiffs regarding the risk of injury to fans is compelling on a certain level, it’s another thing altogether to say that this suit has any kind of chance to force action by Major League Baseball, legally speaking. For one thing, the manner in which the case has been brought — by people who could be injured, but have not yet been — could sink this thing before it every got going. And, at the very least, could take years to be put through its procedural paces.

More fundamentally, it runs smack up against the so-called “Baseball Rule.” What is “the Baseball Rule?” Glad you asked!

In most walks of life, whether someone is liable to you for injuries caused by alleged negligence is determined by a judgment call: was the harm foreseeable and did they act reasonably to prevent the harm from occurring? That’s a matter for a jury to decide, and the jury can take all of the specific facts of the case into account in making that determination.

Ballpark operators, however, have typically had a safe harbor that shields them from having a jury decide whether they acted prudently. It’s called “The Baseball Rule,” and it’s a legal doctrine which underpins those little “we’re not liable for you getting injured by flying balls and bats” disclaimers on the back of your ticket.

The way it’s usually formulated by the courts is that stadium owners and operators must provide “screened seats for as many spectators as may be reasonably expected to call for them on any ordinary occasion,” and that if they do that, they’re legally absolved of liability. Typically, providing screens behind home plate and around to each side to some degree puts owners in the safe harbor. In that case, it’s a matter of law, not fact, and the judge will usually dismiss the case before it ever gets to a jury.

That rule has been challenged more and more in recent years but it still, generally speaking has legal currency. You’re more or less assuming the risk of injury at the ballpark.

As I wrote last year, the ballpark experience has changed a lot. Seats are closer than they used to be. Balls are hit harder and bats shatter more easily. There are more distractions in the form of entertainment on the big screen, music and the like. The price of seats behind the screen can be prohibitive in many parks, putting a lot of fans in a situation to where they have to choose between spending a ton of money or sitting in unprotected seats. It’s possible, in the right case, that a plaintiff could successfully challenge the Baseball Rule on grounds that what was once considered reasonable protection — say, netting from dugout to dugout — is no longer reasonable, and more netting is required. This lawsuit seems to be aiming at that specifically, seeking a declaration that, as of now, the netting is insufficient and that more must be put up.

But given that the suit is casting so wide a, um, net, in terms of plaintiffs I have a hard time seeing them getting what they want out of this. Which, of course, it’s possible the plaintiffs’ lawyers know quite well and are using this as a means of highlighting the dangers of foul balls and broken bats so that, when someone is seriously injured, it will be much harder for Major League Baseball to claim that the risk was unforeseeable or adequately protected against.

Either way: worth watching.

07-13-2015_Complaint_Payne_v__MLB_No__15-cv-3229 by craigcalcaterra