Protective Netting and Moral Hazards
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.
Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.
Great insight from a background most of us can’t even fathom having (law).
The moral hazard dilemma is fascinating. If teams have this law perspective, this can incentivize them to increase the quality of netting, resulting in an even safer experience.
Fun read.
I make up moral and legal quandaries that would screw over the corporate overlord that runs the Toronto Blue Jays, Rogers Media.
One that I’ve been having a blast unwrapping is whether or not the team would be liable if they openly encouraged fans to use that hip new app, twitter, during the game and then a fan took a foul to the head while checking their twitter.
With any marketing, they’re expressly telling you *not* to pay attention. Would the team be liable if one of their ushers offered you an “ICE COLD BEEEEEEEEEER” and as you turned to pay him, you got clocked?
Whether you look for a beer or are using Twitter, you’ve still assumed the risk. (And I’m sure the team would put out the disclaimers for the Twitter participation). As long as the team is not REQUIRING you use twitter, there’s little difference from the current situation of scoreboards and phones.
All of the judgments seem to explicitly hinge on the fact that the stadium owners didn’t increase the risk beyond the assumed risk. Fans have a duty to protect themselves, but owners have a duty to not increase the risk inherent to baseball. In both examples, I’d argue that the risk was increased, on purpose, by team officials.
If a team has internal marketing metrics that say a “blinking scoreboard ad” attracts 20% more attention than a “stationary scoreboard ad,” would you not argue that the team purposefully distracted its audience, and in turn, increased the risk?
I wonder if inaction may have ended up with regulation? Severely injured little girls can pull at the heartstrings of policy makers. These could be draconian (netting all the way to the foul poles, like they have in Japan).
I also wonder if a spectator at a MLB game has ever been injured due to faulty netting? The way I see it, and I’m pretty sure I’m right, the only way a fan would have a cause of action would be if a ball or bat went through the netting. It would have to be a situation where the netting would have protected the fan if not for negligence in maintaining the netting. Now, I’m not a certified expert in nets, but to me, nets are not a complicating contraption. I’d think a billion-dollar enterprise could take care of the nets.
Also, since this is all something that would presumably be covered under a team’s insurance policy, maybe we could find out if installing the netting causes team’s insurance rates to rise? I’d bet they don’t.
Believe it or not, in that Martinez case I cited above the court actually started a far-too-detailed discussion of specifically what shape and type of netting would be required for a team to not be negligent under the law. Fortunately, the court ended up thinking better of it.
To back off from the legal side of this, is it really so clear cut that baseball teams DO have a moral obligation here, like the author assumes? The doctrine of assumption of risk is not some hand waiving technicality, it’s built on the idea that if an individual engages in activities that have certain known risks, responsibility for the consequences lie with that individual. Assumption of risk is a legal standard that is built on an underlying moral framework about responsibility.
If I bring my son to a baseball game, damn right I am watching like a hawk to make sure he’s not getting hit by anything flying around, because I know the risks of being in that environment. In fact, given that he’s quite young, so an injury is more likely to be catastrophic, I’d reconsider bringing him at all, or I’d buy seats in a location that is highly unlikely to be subject to dangerous flying objects. I do believe that bringing him there and exposing him to those risks is a conscious choice I’d have made.
So sure, practically speaking teams are calculatingly trying to avoid the legal quagmire of, once a duty is established, trying to weakly argue about standards of care in front of a jury, with a maimed plaintiff in the courtroom. But I don’t think that their fighting to preserve assumption of risk doctrine is as obviously morally objectionable as it’s made out to be by this article, particularly because 1750 people a year sounds like a lot, but not when weighed against the fact that some 70 million + fans go to games a year. The math proves this is not an inherently dangerous activity that teams are recklessly exposing fans to, it’s an activity in which rare, but foreseeable, shit very occasionally happens.
…or I’d buy seats in a location that is highly unlikely to be subject to dangerous flying objects…
See, there’s your gray area. There are many people who might quite reasonably conclude that any area without protective netting is an area unlikely to be subject to dangerous flying objects.
In addition to the assumption of risk, there’s also the cost to install and maintain the additional netting itself, and the non-zero level of complaint they will get from patrons who feel that their view has been obstructed. In nearly all cases the team will try to go with the least expensive option (trying to run a business, naturally) weighed against the risk of the high cost and bad PR associated with little girls getting hit in the face.
One shouldn’t just assume that all billionaire team owners are cheap bastards, but one shouldn’t just assume they aren’t either.
“One shouldn’t just assume that all billionaire team owners are cheap bastards, but one shouldn’t just assume they aren’t either.”
Agreed, it’s a mash-up of trying to limit their liability, spend as little money as possible, manage the environment of the game so it’s enjoyable and people want to buy tickets, and try to keep people from being hurt.
I suppose I’m just saying that reasonable (and in cases moral) minds may differ on how all those factors get balanced. It isn’t as simple as just saying “teams have an obligation to people in the stands”.
The gray area is the scary part liability-wise too. Outside of a total and impervious barrier, you’re always going to find an attorney who’s willing to go to court and argue that standard of care dictates the netting should’ve covered just a bit more . I really can’t blame teams for not wanting to expose themselves to a tort industry driven by people who can be just as unscrupulous as those billionaire team owners. That, among other reasons, is why I think society generally does better when it leans more towards the “understand what you’re getting itself into” side of the spectrum. It avoids the legal uncertainty, all the slippery slope questions go away, and it also relies on the principle that no one really has a larger stake in looking after your interests than you yourself do, so we should encourage you to make informed choices (and internalize the consequences).
But that does kind of bring up the question of whether children should even be allowed to sit in the danger zone. There are hundreds of activities that children are forbidden from engaging in because they are deemed dangerous. “Watching baseball” may seem too passive an activity to qualify for this, but there is real danger. It may not make sense to potentially endanger children depending on the awareness of their protecting adult.
This is a good point, I wouldn’t expect an amusement park to let me bring my toddler on a rollercoaster just because I promise I’ll look after him. Maybe teams would be wise to have no-kid sections.
Car accidents are also “rare but foreseeable” events. Should car manufacturers not be required to include airbags because the risk is obvious?
As a current law student, I’m pretty happy about the addition of someone covering legal baseball matters here. This was an interesting article, so thanks, Sheryl!
Thank you for reading!
Upon reading this, the Rays FO has removed 100% of all netting from Tropicana Field and recommended that fans sitting directly behind home plate bring their own catcher’s mask and glove.
Then , 10 years later, every team realizes that’s the way to go around and does the same. Because everybody is doing the same, there are no good net removers available so the Rays decide to try something else. They get destroyed on national media for it, ridiculed to no end, but don’t worry, they still do it because trying is better than doing nothing.
I went through this with the 76ers. Everybody laughed at the Trust The Process thing until Embiid and Simmons started dunking on the league.
“So by building the netting, a team is exposing itself to more liability, not less.”
Perhaps theoretically, in a closed system, but this system is dynamic. The law changes over time, whether by legislation, new court decisions, and new Restatements (the “First” and the “Second” reflect changes in the law). By building the netting, the team has insulated itself from any liability from those fans/patrons who never get hit. Those patrons arguably have no right to recover because of the “baseball rule” you cited, but that rule is under attack and may not be in place in 5 years , or in all jurisdictions. There was quite a bit of national press, and some legislators looking at changes, as a result of the Yankee Stadium incident last year. See https://www.si.com/mlb/2017/09/20/new-york-yankees-fan-injured-todd-frazier and https://www.si.com/mlb/2017/09/21/new-york-yankees-netting-ballpark-injury
That leaves the situations where a fan is hit by a ball or bat because the netting did not go far enough. As you note, that’s now a question of reasonable care. It would be interesting to know how many people get hurt/hit outside of the area protected by the netting, to start — I imagine the clubs (and their insurance companies and risk experts) have an idea about that. And that the clubs, their insurances and their risk experts have well-thought out arguments about cost-benefit. So while they may get sued, someone has to prove they acted unreasonably , which is going to be an uphill battle.
Right. The increased risk of liability reflected in your first paragraph is why the netting is being extended. The teams are absolutely not exposing themselves to greater liability by building more netting. The only way the teams could increase their liability by putting up more netting is an assumption that the teams are putting up defective netting everywhere, which is a silly argument.
“Theoretically, more netting should reduce the number of foul-ball injuries, and that’s unquestionably a good thing.”
How is that unquestionable? I question it. People being injured by risks they willingly took is morally neutral. I don’t see any “goodness” here at all.
You are a bad person and should stay away from society.
“little girls & old dudes getting their faces destroyed is morally neutral” is a heck of a position, way to put it out there
We gonna deep dive into moral philosophy here or are we going to say that people spectating a baseball game typically have an expectation that they are not going to be permanently blinded due to human inability to differentiate a “near-0” from 0 percent chance?
I think “moral” doesn’t matter in this. If someone dies in a car crash, that’s neutral? They assumed a risk when they got into the car (and there’s a statistically higher chance that you’re going to die in a car crash than be blinded at a baseball game) Does that mean that their death couldn’t described as “bad”? Literally every second you exist you assume the risk of “some weird .0000001% chance occurring that ruins your life”.
Stop trying to make language meaningless. Less people being blinded at baseball games is good.
More moral philosophy, please. All of it. The original poster makes a terrible case, but whatever. You could argue that one ought only be concerned with the self, and act fully in accordance with the best possible utility of self; not considering the 7-year old girl at all, aside from whatever emotional hardship watching her get hit in the face brings to you. Thus, if you are comfortable paying attention to every play, you could argue that your unobstructed view is actually worth more than a small girl’s life.
This is, of course, a stupid moral philosophy, but it is practiced by many.
I want to give you the benefit of the doubt that your words were chosen inarticulately and therefor you weren’t suggesting that fewer injuries wouldn’t be a good result.
I’m hoping I’m right…because the alternative is not a good thing.
I too am a bad bad terrible person and ask if 1750 fans per year are injured by foul balls, 96,385% of which injuries are bruises and shiners–if that– how many fans per year are seriously injured or killed going to the ballpark, at the ballpark, and gong home from the ballpark, not counting those falling out of the second deck, or knifed in the bleachers in Dodger Stadium? One of the very good virtuous people (not me) always found on these threads should point out that the players appear to be in hearty support of the netting, which should count for plenty, so get on it.
TLDR: He’s right from his perspective, but quite purposefully misses the point.
It’s reasonable — maybe right and maybe wrong but certainly reasonable — to believe that morality only applies to intentional actions done to one person by another person. It’s one of the reasons why hurricanes, while certainly causing lots of human tragedy, are not immoral. They simply suck, sometimes to tragic degrees, for lots of people.
If you believe this, it’s also reasonable to conclude that the results of a person’s actions on themselves have no moral quality whatsoever. And knowing that there will be projectiles flying at great speeds, that will on rare occasions cause bodily harm, and willingly choosing to enter that environment means that there are no moral considerations regarding people getting hit by flying projectiles at baseball games.
I actually agree with you. I don’t think there’s a moral quality to these instances.
But there are clearly other ways we use the words ‘good’ and ‘bad,’ and these are related to our subjective experiences of events. For instance, you might say a movie is good, and that people should see it because it will improve their lives, maybe because the movie is particularly enjoyable or because it can teach you something important about the world. This sort of subjective experience is not what you or I, or I think most people, are referring to with morality. The goodness of a painting or movie or song is not a moral goodness. This does not mean it doesn’t possess some sort of goodness.
Perhaps the people here are being clunky with their use of vocabulary in a philosophical setting, and when we’re discussing morality we are of course talking in a philosophical setting. They are indeed conflating two separate ideas of goodness, one moral and one about positive human experience.
But your post dismisses the fact that, for most people, minimizing human tragedy is a good thing. Perhaps not from a moral perspective, but just because something isn’t necessarily moral does not mean it’s not worthy of consideration.
If you don’t see goodness in people not getting severely injured, then you lack in basic human emotional connection, bordering on or perhaps inhabiting psychopathy. Is schadenfreude morally neutral? Is indifference to the suffering of others morally neutral? In my opinion, and in yours, it most certainly is. But does it make you a bad person in a non-moral sense? Also certainly.
In the sense that humans, in general, see goodness in the happiness and lack of tragedy in other peoples’ lives, stopping someone from getting hurt at a baseball game is unequivocally good. You are not only ignoring this very important idea of goodness, you are implying it doesn’t matter. Just because there may be no universal moral laws regarding how much people should be protected at sporting events does not mean their is no goodness or badness in how much people are protected at sporting events.
TL;dr- Okay, this is happening, and no OP is still wrong.
Let’s start with context: OP uses a specific quote from the article to build his thesis. “‘Theoretically, more netting should reduce the number of foul-ball injuries, and that’s unquestionably a good thing.’
How is that unquestionable? I question it. People being injured by risks they willingly took is morally neutral. I don’t see any ‘goodness’ here at all.”
First thing that happens here is questioning Sheryl’s idea that preventing human suffering(foul-ball injuries) is unquestionably good. He then supports his nonsense by creating a straw man point that wasn’t in the original statement by Sheryl (that people need to be responsibly for their actions) which shifts the conversation from the WHOLE FUCKING POINT of the article (that MLB is taking steps to prevent human suffering caused by physical injury to fans attending their games, that there is an expectation of safety by the fans, and what that expectation means in a legal context). This is bad rhetoric.
If you wanted to argue that “baseballs hitting fans are akin to hurricanes or wild animal attacks and therefor there is no morality involved in the action” that’s a fine (but stupid) point to make. The issue is that he was questioning the very idea that fewer people being BLINDED BY BASEBALLS is neutral, as if being blinded by a baseball was an even that would render no emotional reaction from most people. This is untrue. Being struck blind due to an accident is pretty universally accepted as “not good”. Therefor the opposite of it is pretty obviously good. We’re talking about the outcome of a specific event, baseballs not blinding people because of new nets, and if THAT is good or not.
I’m not sure if you’re trying to disagree with me or not. It seems like you are from your tone, but we are saying the exact same thing.
I am more generous with what the OP literally says, people getting injured by foul balls is morally neutral. This may or may not lead to the differences in our tones, not sure. But this doesn’t really matter. My point was that even if you have a super strict definition of when something becomes morally considerable, the OP is still wrong, for exactly the reasons you outline: even if you don’t think reducing fan injuries is a moral good, there is STILL a very obvious way that this is a very bad thing, in that people being seriously injured is bad. My point about hurricanes was that we can still say things are super bad without without saying they are immoral.
I mentioned this, along with the movie example, for a few reasons. Again, to just make it clear that things that are really bad for human suffering can happen even from a morally neutral perspective. And the movie was another example of how things can be good and bad from a morally neutral perspective. Maybe that was unnecessary, but I always think it’s good to try to find as much common ground as you can with someone you disagree with. It’s way easier to say you’re right about pretty much everything but you go wrong in this one spot than to say everything you think is stupid and you’re a bad person. Well, it’s actually way harder to say that, but it’s way better if you want to convince them.
You quote the author to try to show how the OP was somehow changing the topic. This is exactly what we’re both saying. The author’s point is that the law incentivizes owners to do something they shouldn’t do — not protect fans as much as they can. This implies a moral claim about what owners should do, and this is why the OP took it here.
One problem with having a really strict definition of morality is that it can make you numb to things. If you stop taking moral responsibility for things, it can leave you cold. It can make you forget there are other reasons to think things should or shouldn’t happen. Maybe this person’s trolling. If so, whatever, this is all stupid. If they’re not, that would explain why they clearly miss the point. Ring makes a moral claim on the owners, which the OP disagrees with. The OP should still think people getting badly hurt is terrible, which is literally what the author says in your quote. It doesn’t have to be immoral for it to suck. I was trying to get the OP to realize what Ring and all of us realize, which is that reducing foul-ball injuries is unquestionably good, on the OP’s own terms.
Also ask the players if they have a moral intuition about people getting hurt by the foul balls they unavoidably generate. At least some of them have spoken out saying they as human beings are unable to consider themselves morally cleared by the fine print on the ticket.
Lets try this in a less crass way. Life is full of risks and costs. It is not unquestionable then that the costs here are warranted by the risks, “morally” or otherwise.
We could put up netting. We could also reduce all speed limits to 10 mph. That will absolutely result in wildly fewer deaths in injuries, by the tens or possibly hundreds of thousands. “Theoretically, a 10 mph speed limit should reduce the number of car accident injuries and deaths, and that’s unquestionably a good thing.”
So I am hoping what Llewdor is getting at is that the “goodness” of the netting is not “unquestionable”, and instead has to do with the balance of risks and costs. People seem to be taking the uncharitable interpretation that he was saying that just the second part about reducing injuries was under consideration.
Anyway, I don’t have strong opinions on the netting either way. I would have to look at the number and severity of injuries compared to other typical day to day risks, as well as the costs of the netting and how much fans dislike it to have a better sense of whether it is worth the costs.
But our reaction to every problem/risk in society cannot be to knee jerk throw money/resources at it, both because it is impossible (there is not enough money/resources to solve all problems/risks), but also because it is ineffective and counterproductive. In fact often by solving some problems you create others (in this case obstructed views).
Thank you for the great explanation of this.
At one point in the article, you said about the assumption of risk by the team that “this doesn’t really make any logical sense” but — and maybe I’m not understanding it well enough — it seems to me that it does make some logical sense.
When the team erects the protective netting, fans sitting in those now protected areas will feel secure from the balls. So if the netting has holes in it and a ball flies through it and smashes into someone’s eye, the victim really had no reason to expect that might happen. Prior to the netting being erected, every adult near the field knows that a ball might come flying at their eye. It may not be expected, but we all know it’s possible. There’s no reason for fans sitting behind protective netting to think that’s possible once the new net is in place. Thus, the fans’ behavior will change as a result.
Pre-netting, 100 foul balls went into the stands in Section XXX. Mostly people were unhurt, but the handful that were had no legal recourse against the team.
Post-netting, 3 foul balls went into the stands in section XXX. One person was hurt, and now it’s the team’s fault. Despite the fact by erecting netting the team has made a deliberate and successful effort to make Section XXX unquestionably safer than before nets were put up.
There is a logical process there sure, but it doesn’t seem entirely just. Maybe instead of “logical sense”, the author should have used something even more nebulous like “fair”.
I will ask you a simple question that should fully answer whether the argument you have set forth is actually correct or even logical (not saying it’s “your” argument, but I think you are trying to replicate the author’s argument)
It is undisputed that teams already put up lots of protective netting behind home-plate, which extends towards the dugouts (surely a “deliberate and successful effort to make that area safer”).
How many successful lawsuits do think exist by people who have been hurt by foul balls in that area “post-netting” (assuming it’s not case of defective netting)? The answer is of course “none.”
The author makes a very fundamental error when she confuses the “voluntary undertaking doctrine” with a change in the team’s duty of care.
The voluntary undertaking doctrine, in this context, only says that if the team puts up netting, it can’t do so negligently – i.e, it can’t put up defective netting.
But putting up non-defective netting (which is what the teams have done and will do) does not implicate the voluntary undertaking doctrine. The teams’ duty of care doesn’t change at all here.
This is pretty straight-forward negligence law and why there is no moral hazard here.
How many fans have been hurt by foul balls that went through non-defective netting? My first guess is zero.
Exactly. The teams aren’t influenced by moral hazard, because they are not concerned that they are installing defective netting above the dugouts. They are no more concerned about that than that they have installed defective netting behind home plate or in other areas of the park.
What they are concerned about is an expansion in the scope of the standard of care, and that areas above the dugouts come to be seen as just as worthy of protection as other areas that already have protective netting (like behind home plate), which could render them liable in the next lawsuit. For sure, the plaintiff’s lawyer in that next case is going to reference all the publicity that surrounded the Todd Frazier incident and others. That’s the risk that MLB and minor league teams are concerned with, and that’s why you will continue to see the expansion of protective netting above dugouts (despite concerns about fans’ desires for unobstructed views).
Say that you had a couple of fans seriously injured in a netted area, for which you were not responsible. In response, you extend the netting to those areas. Have you not now tacitly admitted that you SHOULD HAVE netted that area earlier and do you not therefore now become liable for those earlier injuries?
Morally it seems you should, and legally it seems like it may cost you a few million dollars plus the cost of netting to be morally good.
According to the federal rules of evidence, this would be impermissible. You can’t use someone’s corrective actions after the fact against them.
Interesting article. However going forward I’m not sure minor league teams face less liability if they don’t extend their netting. I have no law experience but if every major league team and many if not most minor league teams extend their netting, couldn’t somebody argue that the team didn’t meet a reasonable standard of care by not extending their netting? For example if you take it to the extreme I can’t imagine the baseball rule would cover a team who decided to eliminate the backstop because it’s a standard safety measure. Does anybody with experience know better?
I feel like this is very different. Seems that removing something would require the park to prove that they could do so safely, without increasing risk.
You may have no formal law experience, but you intuitively understand how negligence law works and have asked the right question. The answer is yes, and that is exactly why you will see more and more minor league teams extend their netting in the coming seasons.
You make a good point, but think about it for a second. Nobody would sit behind home plate if there weren’t protective netting. Fans might underestimate the danger of sitting beyond the protected netting that currently exists, but if you just took away all the netting, you’d have your “best seats” emptied out.
This is not an answer to your question and is not meant to say that you don’t have a point, just that a team doing this is just something that would never happen.
A few points:
Without getting into state law variations (and the rule doesn’t even apply in some states, either because those states follow a different rule, or like Illinois, the common law rule is pre-empted by statute), the baseball rule provides the relevant duty of care here, and generally prevents liability for an owner/operator that provides screened seating (1) sufficient for a reasonably-anticipated number of spectators who desire protected seats, and (2) in the most dangerous section of the stands. The latter part of the rule is why every ML stadium already has protective netting behind the home plate area extended to the beginning of the dugouts.
With that as background, one can see that extending the netting to the ends of the dugouts does not change the operative duty of care at all. Extending the netting that way, as far as the operator’s legal duty, would be no different than if a team extended the netting further upwards in height above the home-plate area, or extended the netting only half-way down the dugouts, or even all the way to the foul poles. In all of those cases, the owner/operator has the same duty of care, and it does not change.
So, because the duty of care does not change, there is no “moral hazard” issue here.
And actually, you’ve got it backwards regarding the alleged “moral hazard” and the potential extension of liability in this context. What has become increasingly clear as more people have sustained injuries from sharply-hit foul balls above the dugouts (whether distracted by their phones or not) is that “the most dangerous section of the stands” (see part 2 of the baseball rule above) should arguably be bigger than just the area around home plate, and should be extended to the ends of the dugouts. That argument is the one that concerns teams and in fact, that is the risk that is causing these ML teams to extend netting across all ML parks. In other words, the hazard IS NOT that teams will be held liable if they DON’T put up more netting (i.e., your purported moral hazard) , it’s that the lack of extended netting , after teams have become increasingly aware of the risk of injury to fans behind the dugout, will be negligent under the existing duty of care. indeed, if your “moral hazard “argument were correct (and it’s not), teams would be incentivized to reduce the netting all over the stadium that they already have.
Last point, since I believe the author is an Illinois lawyer, is that the Nelson v. Union Wire Rope Corp. case (an Illinois case) is irrelevant and pre-empted in this context. Illinois has a specific limited-liability statute for owners/operators of baseball facilities (http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2070&ChapterID=58)
“Sec. 10. Liability limited. The owner or operator of a baseball facility shall not be liable for any injury to the person or property of any person as a result of that person being hit by a ball or bat unless: (1) the person is situated behind a screen, backstop, or similar device at a baseball facility and the screen, backstop, or similar device is defective (in a manner other than in width or height) because of the negligence of the owner or operator of the baseball facility; or (2) the injury is caused by willful and wanton conduct, in connection with the game of baseball, of the owner or operator or any baseball player, coach or manager employed by the owner or operator.”
Here, one can see that teams can and will already be held liable for injuries caused by defective netting (whether that protective netting is behind home-plate, netting extended to the dugouts, or protective netting anywhere else). Again, physically extending the netting has no effect on the relevant duty of care.
Her point is that by extending the netting, there is a greater possibility of a ball or bat striking a fan due to faulty netting. Because there is simply more netting. More netting equals more possibility of faulty netting and injury. To me, that risk seems so low as to not really register, but that is the point. If you don’t extend the netting, you have no liability for the unprotected sections. If you do, you have liability in the (very) unlikely event that the netting fails to protect fans, i.e., a ball breaks through the netting due to negligent upkeep.
To me, I think the factor working against extending netting is a belief that it will make the game less intimate. Fans want to feel close to the action and netting works against that, teams would think. And if you aren’t going to be punished at all for not extending the netting, then it doesn’t take much to tip the balance towards no new nets.
Agreed, but that makes it an article about a complete non-issue (like you say, it doesn’t register). There is no more liability risk associated with defective netting over the dugouts than anywhere else in the park (it’s the same issue when a minor league team puts netting over a play area beyond the OF fence). Teams can always be sued if a fan gets hit with a ball that goes through defective netting (e.g., if there were a hole in the netting behind home-plate and the ball went through it and struck a fan). Nothing has changed.
And the second problem is the misuse of moral hazard. The real increased risk of liability for teams is not from installing the extended netting (her premise), it’s from not installing the netting. Why? Because teams aren’t concerned that they will install defective netting (they are pros at putting netting around the park already). They are concerned that all the examples of serious injuries from sharply hit balls behind the dugouts will be used to say that the standard of care should include protecting those areas.
Johnny, thanks for your comments. I understand your point, but there actually have been instances in recent years of netting defects. They are admittedly rare, but they do happen. More interestingly, extension of the netting also creates a situation where a team could be sued if the netting is not high enough, or thick enough, shaped correctly, or the like. In other words, once the netting is in place, it allows a plaintiff’s lawyer to argue the netting was improperly installed or selected, etc. Not all defects will be holes allowing balls through. Because different ballparks have different dimensions, the same netting in one park might be insufficient in another (compare Oakland, with a ton of foul territory, with Yankee Stadium, with much less).
The existence of the netting, in other words, creates an opportunity to plead a prima facie case for negligence that otherwise wouldn’t have existed. Now, it’s certainly possible that the suits won’t go anywhere. For example, in Benejam v. Detroit Tigers, Inc., 246 Mich. App. 645, 635 N.W.2d 219 (2001) , a Michigan trial court ruled that a team was liable for a woman’s injuries where the shape of the netting allowed a broken bat shard to curve around it, and awarded her about a million dollars in damages. That was eventually overturned on appeal, but we’ve seen *a lot* of cases like that recently (a similar argument was made in the Martinez case I cited in the post). So even if the team eventually wins, defending a case like that through trial and appeal can be pretty expensive. Certainly insurance would be involved, but (a) the policy limits on minor league policies likely won’t be as high on minor league teams as they are on big league teams, and (b) tendering the suit to a carrier often results in a premium increase, which minor league teams have less ability to afford. Hence the moral hazard.
But thank you for your comments, and I know you’ll always keep me on my toes. And if there’s a subject you’d like me to write about, feel free to let me know.
FYI, insufficient length and width of the netting is not evidence of defective netting (e.g., you can see that explicit exception in the Illinois statute). That makes sense because there is always going to be a place where the netting ends, and there is always the possibility that a fan gets hurt if a foul ball goes inches beyond the existing netting. But, of course, it is not negligence if the team does not extend the netting to the entire stadium.
Understanding that point is why the real liability question is whether the areas above the dugouts should be considered an area for mandatory netting (like it is behind home-plate). Teams see the writing on the wall, which is why they are incentivized to increase the netting (not, as you say, incentivized not to put up the netting).
I won’t go into the legal aspect since that is not my area, but as a fan I do not like this. There are thousands of seats in every stadium where it is nearly impossible to be hit by a foul ball. If that is a major concern for fans then they have a whole lot of options, both behind the plate in premium seats and in less expensive seats.
I personally have a difficult time following the ball off the bat when I’m behind a net and that negatively impacts my enjoyment of a game. I know it’s selfish, but I pick my seats specifically not to be behind a net and I pay attention. People should choose their seats accordingly. Common sense.