Foul Balls and Negligence: Who’s Fault is it REALLY if You’re Smoked by a Foul Ball?

Go to a baseball game (or any sporting event for that matter) and you’ll see what I mean. Just watch a game and you’ll see that lady just to the right of the protective netting typing away on her phone as Derek Jeter taps a line drive foul down the 3B line. Or you’ll see that one guy up 10 rows in prime foul ball territory rocking out with earbuds in, oblivious to what’s going on. Or the drunk Cracked_baseball Casey Westcouple standing up, turning around and trying to get the wave going as a pitch is being thrown. My favorite not-so-bright fan was the guy at a Tigers game last season who was behind home plate (also just outside the netting) who was videotaping the at-bat with his phone (not unlike the young lady I discuss later). Come on. Common sense.

While we need to study it more, I’m convinced that the perceived increase in spectator injuries is partly due to our over-connected world. While data on the number of fans hit by a foul ball or errant bat is significantly lacking in its availability, it’s not hard to imagine there may be no increase, just more publicity. Conversely, there may be more. For the sake of argument, let’s say there are more.

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In a previous post, I discussed how ballparks built in 2000 and later appear to have less foul territory than their pre-2000 counterparts. This 7% difference may contribute to an increase—if there is one. Does this mean MLB is guilty of endangering fans? Some argue that it does; others
will say it doesn’t because it brings a sense of intimacy, or closeness or oneness with the game, something very much lacking in nearly every other sport. At baseball games, we get to touch our baseball heroes, to interact with them on a truly personal level. That is one of the main things baseball has over other sports—true fan/player engagement. Not many other sports can say the same. In that sense, it’s a trade-off. We sacrifice distance between us and the players in favor of the possibility of injury.

As noted, that trade-off comes with an obvious caveat. It means, in order to be closer to the action—and even part of the action sometimes—we have to pay closer attention to what’s going on with the game. We can’t bury our noses in a smart phone or turning away from the game while there’s a batter at the plate, get hit by a foul ball then sue MLB for negligence. It doesn’t work that way. Or at least it shouldn’t.

The question I have started to see after the Pittsburgh incident is: Can the fan sue the Pirates? Sure she can. America lets people sue for anything. Will she win? Common sense says no. She clearly turned her back on the action, she was very close to the netting and the netting did what it was intended to do, stop the ball by absorbing the inertia of the foul tip. There was no equipment malfunction. It was only a very freak accident that might have happened had she been facing toward the field.

As you will see as you browse through the growing list of lawsuits related in some way to foul balls and errant bats on the FoulBallz.com site is that the word “negligence” pops up A LOT. Usually the fan who has been injured is suing because the team was negligent in its duty to protect the fan from injury. This has turned out to be, time and again, a horribly ineffective tactic for suing baseball teams.

However, what we don’t see often in the cases is what is called “contributory negligence”. This is when the fan contributed to their injury through their own actions. It is in this area that the smartphone issue arises, as well as paying attention—as the Pittsburgh incident exposed.

Again, working under the assumption that serious fan injuries are increasing (although there is no evidence showing there is), there are any number of reasons that can be contributing to it. For this article, I am working with the apparent 7% decrease in foul territory and the obsessive use of smartphones and the lack of common sense many fans seem to possess. As the timeline above shows, apps have taken over our phones (and computers and tablets). These apps are distractions—the foul ball app was even taken down due to us not wanting it to be a distraction. Look at the audience at a baseball game. You’ll see people buried in their phones not looking at the action; others will be taking selfies trying to get a player in the background; still others will be live tweeting every single pitch or videotaping the game to upload immediately to Vine.

These fans don’t pay attention. A case in point: In an April 19, 2015 tweet a young lady posted a panoramic image of the ballpark she was at. As she was taking the picture, a foul ball hit her and messed up the picture. She posted it anyway to show how the image ended up. To the right it is very shaky. What we see in this instance is proof that fans aren’t paying attention. She wasn’t paying attention, so should she be allowed to collect damages to her phone? No. This is a clear case of “contributory negligence.”

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While my heart goes out to the lady at the Pirates game, it’s clear she turned away from the action. If you watch the tape again, you’ll see the reaction of the man behind her. He jumps.

These are all distractions. Thus, the fan is guilty of contributory negligence. Warnings at games abound. They are plentiful to the point of ad nauseum. Tickets, signs and reminder announcements all have warnings. They even say to make sure to pay attention. It doesn’t get clearer than that.

So the next time you’re at a baseball game, put the phone away, at least while there’s live play. There’s plenty of time between innings, half innings and pitching changes to do whatever you want to do on the phone. Remember to pay attention.

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