New MLB Fan Safety Class Action Lawsuit Unlikely to Succeed by Nathaniel Grow July 14, 2015 Following last month’s horrific incident at Fenway Park – when a woman suffered life-threatening injuries after being struck in the head by a fragment of a broken bat – it was probably only a matter of time until someone challenged Major League Baseball’s fan safety rules in court. A new class action lawsuit filed in California federal court on Monday does just that, accusing MLB of failing to take sufficient precautions to protect its fans from foul balls and broken bats. The suit – filed on behalf of Gail Payne, an Oakland A’s season ticket holder – focuses in particular on fans sitting in unprotected seats along the first and third baselines, an area the complaint dubs the “Danger Zone.” According to the lawsuit, although MLB has known for years that fans seated in these sections face a heightened risk of serious injury, the league has failed to take any steps to protect them. The new suit hopes to force MLB to act, asking the court to order the league to mandate that all 30 teams install foul-pole-to-foul-pole netting by the start of next season. Ultimately, however, Monday’s lawsuit appears unlikely to achieve its ambitious goal, as the case faces several legal hurdles that may prove quite difficult to overcome. In the complaint filed on Monday – available here – Payne’s attorneys make the case that MLB games have become much more dangerous for fans in recent years. The lawsuit notes, for instance, that recent league-wide increases in pitch velocity have reduced the reaction time that fans may have before being struck by a foul ball, while at the same time increasing the ball’s force of impact. The case also emphasizes the increased risk to fans presented by maple bats, which shatter with a much greater frequency than their more traditional counterparts made from ash. Along with the heightened risk of injury due to these relatively recent developments, Monday’s lawsuit also contends that today’s fans face ever more frequent distractions during the course of a game, increasing the chances that they will be hit by a flying bat or ball. In particular, the complaint argues that recent MLB initiatives to increase the in-stadium use of Wifi-enabled devices during a game – for everything from ordering food to watching highlights – makes it all the more likely that fans (and children in particular) will not be watching each and every pitch. As a result, the lawsuit accuses MLB of falsely promoting its games as family friendly entertainment. Along these lines, the complaint emphasizes the fact that the Major League Baseball Players Association has reportedly asked MLB to install additional netting along the baselines during each of the last two collective bargaining negotiations to help protect fans from injury. The case also points out that MLB has implemented other league-wide fan safety initiatives in recent years – such as the new rule requiring every MLB team to scan all of its fans via a metal detector before they enter the stadium – while at the same time noting that many teams extend their protective netting much further down the baselines during batting practice than they do for the actual game. Monday’s lawsuit thus contends that MLB has been legally negligent by failing to do more to protect its fans. Further, the complaint charges the league with fraudulent concealment, unfair competition, and a violation of California’s Consumer Legal Remedies Act, all on the basis that MLB is falsely misleading fans to believe that attending a game is much safer than it really is. Interestingly, the lawsuit does not seek any monetary damages from the league, but instead only asks the court to issue an order (i) forcing MLB to make all of its teams install netting from foul pole-to-foul pole in their stadiums, and (ii) requiring MLB to launch an initiative to study the rate of spectator injuries. As noted above, however, the new lawsuit faces relatively long odds of success, as MLB will be able to assert several strong legal defenses on its behalf. As an initial matter, MLB will likely argue that the plaintiffs in the case lack the legal standing to sue required to bring an action in court. Notably, the named plaintiff in the suit has not suffered any actual physical or monetary injury herself from a foul ball or broken bat. Instead, she merely asserts that she and other fans face an increased risk of injury due to MLB’s failure to take greater protective action. Moreover, because the lawsuit seeks to represent a class of all MLB season ticket holders “whose seat(s) are located in any unnetted/uncovered area between home plate and the foul plates located at the end of the right and left field lines,” most of those covered by the class action also will not have sustained any actual injury from a flying bat or ball. Thus, it appears that the overwhelming majority of current and potential plaintiffs in the suit have not suffered the sort of existing physical or monetary “injury-in-fact” that courts typically require. MLB can therefore argue that the mere hypothetical possibility that a small number of these fans may sustain an injury at some point in the future is insufficient to establish standing to sue in the case. A second significant hurdle that the plaintiffs will have to overcome in the new lawsuit is the so-called “Baseball Rule,” a doctrine historically shielding MLB teams from legal liability for injuries incurred by fans from foul balls or broken bats. As I explained several weeks ago, courts in most states have held that because the dangers of attending an MLB game are obvious, fans have legally assumed the risk of any injuries they may sustain. So long as teams provide protective netting for the most dangerous seats in the stadium – those immediately behind and around home plate – then the team is not responsible for any injury resulting from flying bats or balls. The Baseball Rule presents a major roadblock for the plaintiffs in Monday’s suit. Because personal injury cases are primarily governed by state law, the federal court hearing the new class action suit will lack the power to overturn the state-level precedent absolving MLB teams of liability for injuries inflicted by foul balls or broken bats. Instead, the federal court’s job in this case will merely be to interpret and apply the relevant state-level legal rules. Thus, even if the judge in the suit were personally inclined to reject the Baseball Rule, he or she would normally be powerless to do so in a case like this. Any changes in the law would instead need to be pursued state-by-state at the state-court level. Finally, MLB can also potentially argue that the new case fails to meet the minimum standards for a class action lawsuit. In general, courts only permit class action cases to move forward when all of the potential plaintiffs are “similarly situated,” meaning that their injuries and legal claims are substantially the same. In this case, however, a sizable percentage of MLB fans would in fact oppose the relief sought in the case. Indeed, while many fans undoubtedly would like to see MLB implement greater protective measures, a number of other fans strongly oppose the installation of any additional netting along the baselines. This means that the lawsuit seeks relief that some of its plaintiffs would themselves actually be personally opposed to. MLB can argue, then, that this difference of opinion among the potential plaintiffs shows that there is not the sort of commonality among the class members that courts typically require in class action lawsuits. As a result, it would arguably be improper for the court to order MLB to enact the relief sought in the case. For all these reasons, then, Monday’s lawsuit appears unlikely to result in MLB being forced to install foul-pole-to-foul-pole netting, as the complaint requests. Instead, if any changes are going to occur in this area, they will likely either come from MLB acting voluntarily, or arise following a number of successful legal challenges brought at the state level.