Protective Netting and Moral Hazards by Sheryl Ring February 21, 2018 Earlier this month, it was announced that every major-league franchise would be extending protective netting to the ends of the dugouts on each side of the field. For some, the move is probably long overdue. Late last year, for example, a ball off the bat of Todd Frazier hit and severely injured a little girl at Yankee Stadium. The Cubs and Major League Baseball, meanwhile, were sued last year after a fan was blinded in one eye by an errant foul ball in August at Wrigley Field. By one 2014 estimate, as many as 1,750 people per year are injured by foul balls and broken bats at baseball stadiums every year. But the law is a tricky thing, and the extension of netting might have an unexpected result — at least insofar as the teams are concerned. There are many sources of laws. Some are statutes. Some are federal regulations. Some are court decisions. And some law comes from what is called a “Restatement.” A Restatement is basically a book which tells us what the majority rules are in certain areas of law. For our purposes, we’re going to be referring to Chapter 17A of the Restatement (Second) of Torts. (As to why it’s not the “Second Restatement of Torts,” that is a concern beyond the scope of this piece, but it’s mostly because lawyers have an irrepressible urge to make everything unnecessarily convoluted.) As explained in the Restatement, there exists in the law a doctrine called “assumption of the risk.” In the context of baseball, that basically means that if you sit in an area without protective netting and you know it’s a possibility that a foul ball might come your way, you can’t sue the team for getting injured by that foul ball. As one court put it in a case called Edward C. v. City of Albuquerque, a fan “must exercise ordinary care to protect himself or herself from the inherent risk of being hit by a projectile” — even if that projectile is traveling upwards of 100 mph. There’s a really excellent write-up on this that you can read here. In short, however, this “baseball rule” represents the majority rule in the United States. If a foul ball comes your way at a ballpark, the law basically says you should have seen it coming. You’ll probably find language on your ticket saying you assume the risk of injury by foul ball, like the Yankees have on theirs. On the other hand, an entirely different set of rules exists where there is netting. That’s because, in those instances, the team has voluntarily assumed the duty to protect its spectators by erecting the netting. The Illinois Supreme Court, for example, explained in Nelson v. Union Wire Rope Corp. that, where a company voluntarily does something it wasn’t legally obligated to do, that company is liable for failing to do so reasonably. In some states (like Illinois, for instance), this is known as the voluntary undertaking doctrine. So if you were sitting behind home plate and were struck by a ball that traveled through the netting (presumably because it was improperly installed or otherwise faulty), the team would probably be liable even though you assumed the risk by sitting there. And that brings us to the extension of netting. By extending the netting, teams have undertaken a voluntary duty to protect those fans sitting behind the netting. And this creates a bizarre situation where the Yankees would not be liable to the fan struck by Todd Frazier’s foul ball unless they had erected protective netting there. As one court held in Martinez v. Houston McLane Co., a baseball team doesn’t owe a duty to protect its fans unless those fans are protected by netting. The only way you can sue a baseball team for being hit by a foul ball, that court held, was to request to sit behind netting. So by building the netting, a team is exposing itself to more liability, not less. This doesn’t really make any logical sense, but it’s what the law is in most states. That doesn’t mean teams shouldn’t add more netting, of course. Theoretically, more netting should reduce the number of foul-ball injuries, and that’s unquestionably a good thing. But it does explain why so many teams were reticent to add netting for so long. In 2011, six years before Todd Frazier’s foul ball, Andy Zlotnick was badly hurt when he was hit by a foul ball off the bat of Hideki Matsui. Zlotnick’s eye socket was completely destroyed, and his medical bills totaled $100,000. But it took a little girl being hit by a 105-mph line drive on live television six years later to expand the netting at Yankee Stadium. In fact, in 2014, MLB executive vice president John McHale denied that any action to protect fans from foul balls was needed at all. While Minor League Baseball recommended that its clubs also adopt the expanded netting requirements, they didn’t make it a requirement. It’s quite possible that many teams won’t comply with the new standards. Minor League Baseball vice president of baseball and business operations Tim Brunswick, at the end of last year, noted that “[w]e ask our clubs to monitor their own ballparks, note where the foul balls are going and make adjustments accordingly.” There are 160 minor-league stadiums. For a minor-league franchise with far fewer resources than a big-league club, a lawsuit could prove far more devastating. The way the law stands now, however, those minor league teams are incentivized not to extend their netting. So the baseball rule creates a classic moral hazard by rewarding teams for not protecting their fans. And it stands to reason that fans today are more distracted than ever before — not just with devices like personal cell phones, but also with more sophisticated and engaging video boards that compete for fans’ attention while batters swing. Even weather can have a devastating impact: Zlotnick was injured because he couldn’t see the ball through a pouring rain. None of these factors are going away. It will be interesting to see how minor-league teams balance the moral obligation of protecting their fans with the legal liability created by extending netting.