By Or Regev – Thompson Rivers University JD Candidate

“It is absolutely clear that there will be changes…” These words uttered by the Commissioner of Major League Baseball (MLB), Robert Manfred, did not fall on deaf ears. At the November 19th news conference, Manfred was referring to changes to Fan Safety in ballparks, an increasingly urgent matter that has taken centre stage in his relatively young tenure as Commissioner. According to a Bloomberg News report roughly 1,750 spectators get hurt each year by batted balls, most of which are foul balls. The issue of batted balls injuring fans is not a new phenomenon. Despite this, the MLB has done little in the way of improving fan safety, choosing to rely on the defense of the “Baseball Rule” instead. The Baseball Rule holds that where a proprietor of a ball park erects a net or screen behind home plate, and it is sufficient to provide adequate protection, the proprietor has fulfilled his duty and cannot be liable in negligence. In light of increasing injuries, it is time to revisit the Baseball Rule, which undermines the legitimacy of these types of fan injuries.

On the Docket

It appears that the timing of Manfred’s address to improve fan safety may have been prompted by a lawsuit currently waiting to be tried in the U.S. District Court for the Northern District of California. On July 13th, 2015, a group of MLB ticket holders filed a class-action lawsuit against Rob Manfred and the Commissioner’s office, alleging that Manfred has failed to uphold his duties to enact sufficient safety measures for fans. The claim argues that Manfred has engaged in a widespread pattern of negligence, misrepresentations and omissions toward baseball fans at games. While the outcome of this case remains to be seen, some fans may want to consider alternate measures.

Stephanie Taubin is one of these people. In August 2015, Taubin filed a lawsuit claiming negligence, but this suit was against the Boston Red Sox principal owner, John Henry, not the MLB. Taubin was sitting in an area above home plate where protective glass had been removed for renovations. She was struck by a foul ball and suffered facial fractures and neurological damage, costing her money in medical expenses, lost wages and diminished earning capacity. Whether Taubin’s cause will be fruitful also remains to be seen, but if the Massachusetts court draws on any parallels from a 2013 NHL settlement, her case may be successful.

Cross-State Analogizing?

In April 2002, Elizabeth Hahn sued the NHL, Chicago Blackhawks, and the United Center after being hit by a hockey puck and requiring emergency brain surgery. In the suit, Hahn claimed that the Blackhawks, NHL and United Center officials knew for years that flying pucks were dangerous, but chose not to increase safety measures. Hahn was successful in reaching a settlement, which was the first case ever to establish a link between the NHL and fans injured at individual team-owned facilities. Following this settlement – as well as the unfortunate death of a 13-year-old Columbus fan who got struck in the temple by a flying puck – the NHL required all its rinks to install protective nets for the subsequent season.

The MLB’s Past and Future for Fan Safety

Frankly, MLB team owners should count their blessings. The NHL instated protective nets almost 13 years ago in response to a few injuries and a tragic death. For clarity, let’s not confuse the fact that the MLB already has netting. The fact of the matter is, the NHL had ten feet tall glass prior to installing nets. The MLB had nothing. The netting that some MLB fans are advocating for now are in addition to the existing nets; the idea is to extend them to each foul pole or a point nearby. As an MLB team owner I would be pressuring Rob Manfred to Increase Fan Safety now, and I would have pressured Bud Selig to increase fan safety thirteen years ago after Elizabeth Hahn successfully settled with the Chicago Blackhawks. It is a miracle that teams around the MLB haven’t ceded to lawsuit after lawsuit, but perhaps this is why the pressure on Bud Selig wasn’t so overwhelming. It is time to stop hiding behind the exclusion of liability prose on the back of MLB admission tickets and start effecting meaningful changes to enhance fan safety.