By Carla Varriale 

Gail Payne, individually and on be- half of others similarly situated, has led a class action lawsuit against the Of ce of the Commissioner of Baseball, d/b/a Major League Baseball (MLB) and Robert D. Manfred Jr. in
the U.S. District Court for the Northern District of California. The proposed class action asserts four causes of ac- tion: (1) negligence; (2) fraudulent con- cealment; (3) violations of California’s Unfair Competition Law (Cal. Bus. And Prof. Code Section 17200 et seq.); and (4) violations of California’s Consumer Legal Remedies Act (CLRA), California Civil Code Section 1750 et seq. 
The plaintiff seeks injunctive relief requiring defendants, among other things, to adopt certain corrective measures. The measures include ret- ro tting all existing major league and minor league indoor and outdoor parks with protective netting that spans from foul pole to foul pole by the beginning of the 2016–2017 MLB season and to implement a program to study injuries and the rate of injuries among spectators, including the type and manner of injury and at what locations they occur. The plaintiff opines that the study is necessary to evaluate whether further measures should be taken and so precautionary measures can con- tinue to evolve as the sport continues to evolve. 
Payne (who concedes that neither she nor her family were ever struck by an errant baseball or bat although she has been attending baseball games since 1968) argued that MLB did not exercise due care despite having allegedly superior knowledge about the risks of injury presented to spectators and fraudulently concealed those risks. The Payne action acknowledges that there is a lack of hard statistics about in- juries — but nonetheless avers that baseball, along with soc- cer and auto racing, is among the most dangerous spectator sports. 
Furthermore, the Payne action is riddled with hyperbole: referring to foul balls that “scream” into the stands, “cart- wheeling” bats, “a modern-day slaughter pen” and disclaim- ers regarding the risk of injury on the back of tickets that are provided in “mouse print.” The plaintiff relies heavily on an argument that spectators are “distracted” by entertainment at ballparks that are designed to increase revenue and to “woo” the next generation of baseball fans. Speci cally, the plaintiff alleges that Commissioner Manfred has acknowledged the shorter attention span of young spectators and a desire to enhance the fan experience in the ballpark via technology. Payne cites the implementation of WiFi at stadiums (arguably a tool of fan engagement versus a distraction) and an effort by MLB to increase the pace of play and contends that these efforts somehow increase the ordinary risks presented to spectators. 
The Payne action is silent regarding the quali ed, or limited, duty of care that applies to the owners and operators of a baseball stadium. The “baseball rule” is a specialized duty of care that is applicable to baseball (and not the other sports referenced in the Payne action: soccer and auto racing). The baseball rule re ects the practical realities of the sport of baseball and the ubiquitous presence of balls and bats that nd their way into the stands (a risk acknowledged by plain- tiff in the Payne action). In this respect, baseball differs mate- rially from other sports and many spectators want to see the action up close or bring a glove to the game in order to catch a souvenir baseball. 
California is a state that follows the baseball rule. See Nemarnik v. Los Angeles Kings Hockey Club, 103 Cal. App. 4th 631, 641 (Cal. App. 2d Dist. 2002), quoting Neinstein v. Los Angeles Dodgers, 185 Cal. App. 3d 176, 180-81 (1986) (“As we see it, to permit plaintiff to recover under the circum- stances here would force baseball stadium owners to do one of two things: place all spectator areas behind a protective screen thereby reducing the quality of everyone’s view, and since players are often able to reach into the spectator area to catch foul balls, changing the very nature of the game itself; or continue the status quo and increase the price of tickets to cover the cost of compensating injured persons with the attendant result that persons of meager means might be ‘priced out’ of enjoying the great American pastime. To us, neither alternative is acceptable. 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.”). See also Rudnick v. Golden W. Broadcasters, 156 Cal. App. 3d 793, 802 (Cal. App. 4th Dist. 1984) (“A baseball club complying with Quinn’s screening standard has ful lled its limited duty to spectators as a matter of law and is entitled to summary judgment. Whether baseball fans are viewed as participants in the game itself or merely passive spectators, one thing is certain: the chance to apprehend a misdirected baseball is as much a part of the game as the seventh inning stretch or peanuts and Cracker Jack.”) (em- phasis added). 
New York has applied the baseball rule for decades. In New York, the duty upon owners and operators is limited to pro- viding a protected area behind home plate where the danger of being struck is the greatest. The leading case delineating this duty of care is Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644 (1981), in which the Court of Appeals acknowledged the practical realities of the sport of baseball and the fact that many spectators do not want to watch a game from behind a protective netting. In fact, many spectators attend a baseball game with a baseball glove in order to catch a baseball. The Akins decision struck a practi- cal balance between the potential for liability upon the own- ers and operators of baseball stadiums and the spectators’ desire to view the game “up close.” The Court of Appeals crafted the limited duty rule in order to balance these inter- ests and also held: 
As was aptly summarized by Chief Judge Cardozo, the spectator at a sporting event, no less than the participant, “accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with a ball . . . . The timorous may stay at home.” (Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482-483, 166 N.E. 173, 174). Akins, 53 N.Y.2d at 329 (holding that a proprietor of a ballpark ful lled its duty of care and cannot be held liable in negligence when it provid- ed screening in the area of the eld behind home plate). 
The Court of Appeals reiterated the limited duty of care in a case involving spectator “distraction.” In Davidoff v. Met- ropolitan Baseball Club, Inc., 61 N.Y.2d 996, 475 N.Y.S2d 367, 368 (1984), a negligence action brought by a 14-year-old spectator who was injured by a sharply hit foul ball while she occupied a box seat located behind rst base at Shea Stadium, the plaintiff’s action was dismissed because the defendants satised their limited duty of care. The Court of Appeals held that Akins mandated that a jury question may be presented “where the adequacy of the screening in terms of protecting the area behind home plate properly is put in issue. (Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 331, supra.).” (emphasis added). 

Furthermore, in Davidoff, the Court of Appeals held: 
The rule suggested by plaintiff would require a baseball eld proprietor to operate as an in- surer of spectators unless there was a protective screen shielding every seat. We held in Akins that a proprietor should be allowed to satisfy the de- sires of the many spectators who prefer to view the game from a seat unobstructed by fences or protective screening. No sound reason has been shown why the rule of policy set forth in Akins should be changed. 475 N.Y.S.2d at 368.
This reasoning has been applied in other jurisdictions and un- derscores the obvious risk of injury — even when protective netting is present. For example, in Benejam v. Detroit Tigers, Inc., 246 Mich. App. 645, 635 N.W.2d 219 (Ct. App. 2001), bat fragments circumvented the protective netting provided behind home plate and injured a young spectator.1 The Court of Appeals of Michigan stated: care as a matter of law. The limited duty doctrine estab- lishes the outer limits of liability and thereby prevents a jury from requiring a stadium owner to take precautions that are clearly unreasonable . . . . By providing greater speci city with regard to the duty imposed on stadium owners, the rule prevents burgeoning litigation that might signal the demise or substantial alteration of the game of baseball as a spectator sport. (internal quota- tion marks and citations omitted). 
1. Michigan, like New York, applies the “quali ed duty of care” or the “limited duty of care” to the owners and operators of a baseball stadium. Signi cantly, in Benejam, the lower court cited to the New York Court of Appeals’ holding in Akins and also acknowledged that even when a pro- prietor provides such screening, the risks inherent in viewing the game cannot be completely eliminated. See Akins, 53 N.Y.2d at 331 and Bene- jam, 246 Mich. App. at 645. 
Likewise, the Payne action is silent regarding a spectator’s voluntary assumption of the risk. This is a separate defense that applies to the voluntary participation of a spectator despite a knowledge and apprecia- tion of the inherent risks in the activity — such as watching a baseball game from an unprotected area of a stadium. A spectator’s assumption of the risk removes any duty on the part of the defendant to protect the spectator from known or obvious risks associated with the activity such as the chance en- counter with a baseball or bat while a spectator at baseball game. 
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The Payne action, if successful, could result in a dramatically different expe- rience at a baseball game. Perhaps screening will be required in all areas of the stadium, including the upper deck and concourses. Perhaps the costs as- sociated with studies, retro tting ball- parks and essentially abrogating the baseball rule will result in higher ticket prices in order to defray the additional liabilities. Taking the arguments of the Payne pleading to their logical conclu- sion, there is little to prevent owners and operators of a baseball stadium from becoming insurers of spectators’ safety. Particularly if the spectators are inattentive or “distracted” by entertain- ment at the stadium or using Facebook during the game. Perhaps, to borrow the timeless observation of Justice Cardozo, the timorous should stay at home.2 
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Contact at HRRV Law – LEGAL Insights 2015 –

Carla Varriale: 646-747-5115 or carla. varriale@hrrvlaw.com 

2. The defendants have led a motion to dis- miss the Payne action. The motion is scheduled to be heard on November 13, 2015. 
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