On Broken Bats, Protective Netting, and the “Baseball Rule”

As most baseball fans are by now aware, a fan at Friday night’s game between the Oakland A’s and Boston Red Sox was seriously injured after being struck in the head when a fragment of a broken bat flew into the stands. Although initial reports suggested the woman had suffered “life-threatening” injuries, it fortunately now appears that she is expected to survive the incident.

Nevertheless, the severity of Friday’s accident has brought renewed calls for Major League Baseball to take greater steps to help protect fans from similar injuries in the future. Although broken bats and foul balls at MLB games have only resulted in one documented fan fatality in history, a recent study estimated that approximately 1,750 fans are injured by foul balls alone each year.

As a result, various observers are calling on MLB to require that teams install more extensive netting to protect fans sitting close to the field from flying objects. At the same time, others have urged a more cautious approach, suggesting that additional netting will detract from the fan experience, and that ticket buyers can rationally weigh the pros and cons of sitting in exposed seats.

While there are reasonable arguments to be made on both sides of the issue, all too often these debates overlook an important legal reason that helps explain why MLB hasn’t done more to protect its fans from these sorts of injuries. Under what is known as the “Baseball Rule,” courts have historically held that professional baseball teams are not legally liable for any injuries fans that may sustain after being hit by a foul ball or broken bat.

Until this rule changes, there will be little financial motive for MLB to install additional netting to protect fans sitting in the closest proximity to the field.

Since at least as far back as 1913, courts have ruled that professional baseball teams cannot be held legally accountable for injuries sustained by fans struck by a bat or foul ball leaving the field of play. These courts have generally concluded that so long as teams provide protective netting for the most dangerous seats in the stadium — those immediately behind and around home plate — fans have assumed the risk of being injured when attending a baseball game, and therefore must shoulder the cost of any such injury themselves. This is true even in cases where the bat or ball was traveling at such a high rate of speed that the victim had little realistic chance of reacting in time to avoid the injury.

In a relatively recent case involving another fan injury at Fenway Park, for example, a Massachusetts court ruled that the danger of being hit by a foul ball was so obvious that any person of ordinary intelligence would easily perceive the risk and require no additional warning of the danger (rendering the disclaimers teams often place on their tickets superfluous). Thus, even though an engineer had calculated that the victim only had about one second to react to the ball before being hit, she was deemed to have assumed the risk of her injury, and was therefore responsible for her own medical expenses.

There has been a trend in recent years for some courts to set aside this so-called Baseball Rule and hold professional teams accountable for their fans’ injuries. Back in 2013, for instance, the Idaho Supreme Court ruled that a fan could proceed with a lawsuit against the minor league Boise Hawks after he was struck by a foul ball while sitting in an exposed dining area down the third base line. Meanwhile, a Georgia court held last year that a 6-year-old girl could similarly move forward with a case against the Atlanta Braves after she sustained a fractured skull when hit by a foul ball.

Both of these cases involved rather extreme fact patterns, however, and therefore are unlikely to signal a larger trend towards courts holding teams accountable for their fans’ injuries. In the Idaho lawsuit, for instance, the victim had argued that the Baseball Rule should be set aside in his case since he was sitting in a restaurant, rather than a field-level seat. Similarly, because the victim was so young in the case against the Braves, it is harder to argue that she voluntarily assume the risk of her injury.

Until courts begin to consistently hold teams liable for fan injuries, MLB is unlikely to require that additional netting be installed in its parks. In economics terms, fan injuries from flying bats or balls are currently an externality – a cost of doing business that teams are not required to shoulder, and therefore one that is not reflected in the price that they charge for their tickets.

Indeed, teams currently have little financial motivation to take greater precautions to avoid fan injuries, as they are not legally responsible for any injuries that do occur, but could potentially see the demand for some of their most expensive seats decline should they install an additional barrier between fans and the field. If teams were held legally accountable for their fans’ injuries, however, then this financial calculus would change.

Realistically, if courts were to dispense with the Baseball Rule and impose liability in these cases, teams would be forced to take out additional insurance policies to help cover the cost of any injuries their fans sustain when a foul ball or broken bat flies into the stands. As a result, one would reasonably expect that the cost of tickets – and especially those for box seats in the closest proximity to the field – would increase slightly, with teams passing this added expense on to their customers.

At the same time, however, this would arguably help spread the cost of these injuries around more fairly. Rather than requiring those unlucky fans that happen to be struck by a flying object to shoulder all of the costs of their injuries themselves, all fans would pay a little more, but be financially covered should they be hit.

And because the cost of this insurance would undoubtedly vary depending on the perceived degree of risk, teams would begin to face financial pressure to install an optimal amount of netting to protect their fans.

How much additional netting this would cause teams to install is uncertain. Perhaps teams and insurance companies would determine that the risk of injury is so low that the existing netting already provides adequate protection in most stadiums. Or perhaps teams would begin to install protective netting all the way down to the foul poles, as is the case in some Japanese stadiums. Or perhaps – and probably most likely – we’d end up somewhere in between.

Until teams are forced to shoulder the cost of these injuries, however, we won’t know what the true optimal level of protection actually is. And as a result – barring a fan actually being killed by a bat or ball – it is unlikely that MLB will change its policy regarding protective netting anytime soon.