Spectator Injured by Foul Ball Strikes Out at Fenway

A spectator at a Boston Red Sox game who was hit and permanently injured by a foul ball has been blocked from holding Red Sox management responsible even though she was ignorant of the game, its dangers and the risk assumed in sitting in the stands at Fenway Park.

On a September evening in 1998, the plaintiff and three companions attended a Boston Red Sox baseball game at Fenway Park. The plaintiff sat in an unscreened area in the upper box section. On a count of one ball and two strikes, Red Sox outfielder Darrin Lewis hit a line drive foul ball into the stands along the first base line. The ball struck the plaintiff in the face, causing severe, permanent injuries. She had been in the ballpark no more than 10 minutes when she was hurt.

At her deposition, the plaintiff professed marked ignorance of the sport of baseball, which the Massachusetts Appeals Court acknowledged in its June 9 decision in Jane Costa vs. The Boston Red Sox Baseball Club. No. 02-P-1433.

The plaintiff claimed she was entitled to an adequate warning of the dangers of sitting in an unprotected location so that she could have made an informed choice whether to remain there. She acknowledges the existence of a disclaimer printed on her admission ticket but maintains that she did not look at the ticket and that, in any event, the disclaimer was not adequate to discharge the defendant’s duty to warn, particularly since the print was extremely small.

She further noted that, after the date of her injury, signage was installed along the first base line reading “BE ALERT. FOUL BALLS AND BATS HURT.” Such signage, according to the plaintiff, was feasible and necessary before her accident. She claims that had she been adequately informed of the danger, she would not have exposed herself to the risk of injury presented by the location of her seat.

The appeals court noted that under previous rulings the Red Sox had no duty to warn the plaintiff of the obvious danger of a foul ball being hit into the stands. However, given the plaintiff’s stated lack of knowledge about baseball, its decision to reject her argument turned on a different footing. In this case it affirmed that the landowner, the Red Sox, did not owe her a duty to warn of the dangers that would be obvious to persons of average intelligence:

“[W]here a danger would be obvious to a person of ordinary perception and judgment, a landowner may reasonably assume that a visitor has knowledge of it and, therefore, ‘any further warning would be an empty form’ that would not reduce the likelihood of resulting harm,” the court wrote, quoting from LeBlanc v. Atlantic Bldg. & Supply Co., 323 Mass. 702, 705 (1949).

The appeals court also said that this “obvious danger” principle exists independently of the doctrine of assumption of risk and was unaffected by the enactment of a state law which abolished assumption of risk as an affirmative defense. Citing the Massachusetts Supreme Judicial Court, the court explained, the abolition of assumption of risk as an affirmative defense did “not alter the plaintiff’s burden in a negligence action to prove that the defendant owed him a duty of care in the circumstances, and thus [left] intact the open and obvious danger rule, which operates to negate the existence of a duty of care,” at least insofar as a duty to warn is concerned.

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