One Foul Decision

One ball, one strike

by Sean Carter
08/01/04

The game of baseball is in big trouble. It’s already reeling from rampant free agency and allegations of a doping scandal rivaling the former East German Olympic juggernaut in terms of audacity (and success).

Therefore, you can imagine that baseball officials couldn’t have been too happy to learn that they may now have to face foul ball lawsuits. Earlier this month, a New Jersey appellate court ruled that a minor baseball fan could sue for damages sustained from a foul ball.

Historically, fans have been precluded from crying foul by the assumption of the risk doctrine. In short, courts have repeatedly ruled that baseball fans assume the risk of foul balls (and ridiculously high beer prices).

Yet, the New Jersey court’s ruling threatens to make the assumption of the risk doctrine as irrelevant as the findings of the 9/11 Commission. In the case at bar, the plaintiff was hit by a foul ball while buying a beer at the concession stand. The court ruled that the assumption of the risk doctrine doesn’t apply in all areas of the ballpark; just areas where a fan could normally be expected to pay attention to the game.

As a result of this ruling, baseball teams are only shielded from liability if they could expect their fans to be paying attention to the game. Given the fact that Major League Baseball game is probably the most boring event not organized by the Democratic National Committee, this expectation is as unreasonable as my 8-year-old son; and nearly as destructive.

Let’s face it. Only the most fanatical baseball fan is paying attention to the infrequent action that takes place on the baseball diamond. Casual fans almost never watch any of the action, particularly if they bring their kids to the ballpark. Between refereeing fights over who has the best seat, who gets to use the binoculars now and who ate the most popcorn, a parent has a better chance of following the game while flying over the stadium in a commercial airliner.

By modifying a time-honored doctrine, the New Jersey court has paved the way for other courts to award huge foul ball awards. And sadly, this new breed of lawsuits won’t just affect Major League Baseball, but also possibly minor leagues and Little Leagues as well. After all, what’s to stop a disgruntled parent from suing the city, the league and even the 8-year-old Little Leaguer who accidentally hit him with a foul ball? Decency? A sense of self-respect? Yeah right! In our legal system, these concepts are as outdated as most of my jokes.

The bottom line is that this ruling is simply foul. After all, we need another avenue for lawsuits in this country like we need … well, like we need a 162-game baseball season. Now, if you will excuse me, my son’s Little League game starts in 15 minutes and I want to make sure I get an unobstructed seat along the third base side. He’s a pull hitter.

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Sean is a practicing attorney who writes a weekly humor column on current legal events called "Lawpsided." Lawpsided pieces appear in a growing number of general circulation papers across the country, including The Los Angeles Times. Moreover, his musings on the law appear on nationally recognized websites, such as jewishworldreview.com, findlaw.com, newsmax.com and etherzone.com, and legal publications, such as The National Law Journal and The Los Angeles Daily Journal. Lastly, he is a regular contributor to national magazines like Razor and Tirade. If you would be interested in publishing this piece or seeing other samples of his work, please feel free to contact him by e-mail, by phone at (626) 786-2095, or through his website at:

www.lawpsided.com