Assuming The Risk of an Injury at a Baseball Game

Written By Christopher B. Dolan

If You’re in the Stands, Keep Your Eye on the Ball: Over the past decade, at the beginning of baseball season, I have published a column concerning who is responsible if someone gets hit with a line drive, foul ball and/or broken bat while watching a game. As a lawyer, and a big Giants fan, I like to start off the season by saying, put down your cell phone and keep your eye on the ball during play. A distraction can lead to serious and even life threatening injury.

Balls and bats leaving the playing field and entering the stands are not uncommon. In a 2014, Bloomberg News analysis of ballpark injuries, it was reported that each year in the United States roughly 1,750 spectators are injured by batted balls at major league ballparks. The study showed spectators were much more likely to be hit with an errant ball than a player was to be hit with a pitch. While most injuries are thankfully minor, there are reports of severe injuries, and even death, due the sport’s use of wooden bats and 90 mph plus fastballs.

In an article published in the Boston Globe by Catherine Cloutier on June 09, 2015, Edwin Comber, a baseball statistician, is quoted as saying that about 73% of foul balls go into the stands. A 2000 lawsuit against the Red Sox revealed that during a five-year period in the 90’s, 36 to 53 fans per year were hit by balls outside the field of play. Furthermore, there have been reports of skull fractures and even brain injuries, as a result of bats and balls entering the stands. As the fans demand to be ever closer to the action, and the field is filled with high-priced seats closer and closer to the plate and baselines, the risk of injury goes up just as fast as the price.

The issue of liability for fans’ injuries was addressed by the California Supreme Court in 1935 in the case of Quinn v. Recreation Park Ass’n, 3 Cal.2d 725, where the court held that one of the natural risks assumed by fans attending major league games is that of being struck by batted or thrown balls. The Court ruled that the franchise and/or park owner/operator is not required, nor does it undertake, to insure patrons against injury from such source. All that is required is the exercise of ordinary care to protect patrons against such injuries. Management is not obliged to make each seat safe from flying balls. The court pointed out that many patrons prefer to sit where their view is not obscured by a screen.

The duty imposed by law is performed when screened seats are provided for as many as may be reasonably expected to call for them on any ordinary occasion and if a spectator chooses to occupy an unscreened seat or is unable to buy a screened seat and chooses to occupy one that is not protected, they, “assume the risk of being struck by thrown or batted balls; and, if injured thereby, is precluded from recovering damages therefor,” as stated in Brown v. San Francisco Ball Club.

In Neinstein v Los Angeles Dodgers Inc. (1985) 185 Cal.App.3d 176, the Court of Appeals held that:

…The quality of a spectator’s experience in witnessing a baseball game depends on his or her proximity to the field of play and the clarity of the view, not to mention the price of the ticket. As we see it, to permit plaintiff to recover under the circumstances here would force baseball stadium owners to do one of two things: place all spectator areas behind a protective screen thereby reducing the quality of everyone’s view, and since players are often able to reach into the spectator area to catch foul balls, changing the very nature of the game itself; or continue the status quo and increase the price of tickets to cover the cost of compensating injured persons with the attendant result that persons of meager means might be priced out of enjoying the great American pastime. To us, neither alternative is acceptable…

Despite the Court’s unwillingness to intervene to reshape baseball through tort law, I am happy to report that all thirty teams in the MLB have decided to extend safety netting and screening all the way down the first and third baselines to the foul pole. So, if you are in the lower section, you should be better protected from line drives and broken batts. If you are in the upper decks, keep your eye on the ball because, if you are in an unprotected seat, you are legally assuming the risk of injury.

Written By Chris Dolan and Jeremy Jessup

This week’s question comes from Jayson from Redwood City, CA who asks: With all the heavy rain and snow we have experienced in California, the ski resorts will be open into the summer months and potentially see a record number of attendees. Given that so many people will converge on these resorts, especially after school lets out, what duties do they have to ensure that everyone is safe from a serious ski accident?

Dear Jayson,

This is an excellent question. Ski resorts in California are a popular destination for winter sports enthusiasts. With the increasing popularity of skiing and snowboarding, the legal liabilities of ski resorts in California have become a significant concern for resort operators and visitors alike. However, there are a few ways that a ski resort can avoid liabilities in California due to skiing accidents.

Negligence

The most basic claim against ski resorts is an injury caused by their negligence. Negligence is the most common legal theory under which ski resorts may be held liable for injuries sustained by skiers. Negligence occurs when a ski resort fails to exercise reasonable care, resulting in injury or harm to a skier. In California, ski resorts owe a duty of care to skiers who use their facilities. This duty requires ski resorts to maintain their premises in a reasonably safe, inspect it for hazards, warn skiers of potential risks, and take reasonable steps to prevent accidents. If a ski resort breaches this duty of care and a skier injures themself due to their negligence, the resort may be held liable for damages.

A liability waiver is a legal document that releases the ski resort from liability for injuries sustained by skiers. However, to avoid liability under a negligence claim, most ski resorts have you waive your rights to assert a claim for their negligence. This waiver process usually occurs when you purchase your lift ticket. In California, liability waivers are generally enforceable, provided they are clear, conspicuous, and specific. Liability waivers are not absolute protections for ski resorts. If a skier injures themself due to the ski resort’s gross negligence, a liability waiver may not be enforceable, and the resort may still be held liable for damages.

Gross Negligence

Gross negligence is a legal concept that applies in California and other states to hold individuals or organizations liable for their extreme or reckless conduct that leads to harm or injury to others. Under California law, gross negligence is a higher degree of negligence than ordinary negligence, a failure to exercise reasonable care. Under California law, gross negligence is “the want of even scant care or an extreme departure from the ordinary standard of conduct.” This means that a ski resort’s conduct must be significantly more egregious than mere negligence to be considered gross negligence. A finding of gross negligence can have significant legal consequences. For example, if a ski resort is found to have acted with gross negligence in maintaining its facilities, it may be subject to the unenforceability of its liability waiver.

It is important to note that the standard for proving gross negligence is high, and not all reckless or dangerous conduct will rise to the level of gross negligence.

Assumption of the Risk

California courts have long held that skiing is an inherently dangerous activity. By purchasing a lift ticket and skiing at a resort, a rider impliedly and expressly assumes the risks of the sport. Assumption of risk is another legal theory that limits ski resort liability. In California, riders assume the inherent risks of skiing and snowboarding, such as falling, colliding with other skiers, and encountering natural hazards like rocks and trees. However, ski resorts can still be liable for all injuries sustained by skiers. If a skier is injured due to a hazard that is not inherent to the sport of skiing or due to the ski resort’s gross negligence, the resort may be held liable despite the skier’s assumption of risk.

Assumption of the risk by the skier or rider does not absolve the ski resort from liability; ski resorts may be held liable where they create or increase the risk of unsafe, atypical conditions (i.e., gross negligence). In addition, ski resorts in California must also comply with state and federal laws governing the operation of ski resorts. For example, ski resorts must maintain safe skiing conditions, post warning signs, and develop and implement safety plans. Additionally, ski resorts must comply with the Americans with Disabilities Act (ADA), which requires that ski resorts make reasonable accommodations for individuals with disabilities.

In addition to the legal liabilities discussed above, ski resorts in California may also face liability for accidents involving ski lifts and other equipment. Resorts must inspect and maintain ski lifts to ensure their safety. They may be held liable for injuries sustained by skiers due to a malfunctioning or poorly maintained ski lift. Ski resorts must also ensure that the equipment they rent, such as skis and snowboards, are safe for use by skiers.

To limit their legal liability, ski resorts in California should take steps to ensure they maintain their facilities in reasonably safe condition. They should train their employees to operate ski lifts and other equipment properly and adequately inspect and maintain them. Also, take steps such as identifying and addressing hazards, posting warning signs, and developing and implementing safety plans.

The Food and Drug Administration (FDA) recalled three eye drop brand linked to serious vision loss, death and serious infections. See list of brands that they are recommending you stop using: Brands to Stop Using.

For additional recalls see FDA List.

At the Dolan Law Firm, our personal injury lawyers fight for our clients. We have the experience and resources to get results in your case. Contact our office to schedule a free evaluation of your case.

Written By Chris Dolan and Jeremy Jessup

Dear Jayson,

Negligence

Gross Negligence

Gross negligence is a legal concept that applies in California and other states to hold individuals or organizations liable for their extreme or reckless conduct that leads to harm or injury to others. Under California law, gross negligence is a higher degree of negligence than ordinary negligence, a failure to exercise reasonable care. Under California law, gross negligence is “the want of even scant care or an extreme departure from the ordinary standard of conduct.” This means that a ski resort’s conduct must be significantly more egregious than mere negligence to be considered gross negligence. A finding of gross negligence can have significant legal consequences. For example, if a ski resort is found to have acted with gross negligence in maintaining its facilities, it may be subject to the unenforceability of its liability waiver.

It is important to note that the standard for proving gross negligence is high, and not all reckless or dangerous conduct will rise to the level of gross negligence.

Assumption of the Risk

Written By Chris Dolan and Anna Pantsulaya

This week’s question comes from Mark in Oakland, who asks: I read your article last week on Store-front crashes and was surprised by the 7-Eleven statistics of car crashes into the store, one per day! A few weeks back, when it was raining, my friend and I were inside the convenience store, and he slipped. His feet rose in the air, and he landed on his lower back. He seems to be okay. Are business owners responsible for slip-and-falls on rainy days?

Hello Mark,

Thank you for your question. With California’s unprecedented rain, your concerns about slip-and-fall as a business invitee are not without.

What is a slip-and-fall claim?

A “slip-and-fall” is a type of California premises liability claim that occurs when someone falls and sustains an injury due to the owner or operator’s negligence. Not all falls lead to slip-and-fall liability. Slip-and-fall accidents regularly lead to broken bones, traumatic brain injuries, sprains and strains, scars, and lacerations. Slip-and-fall accidents can even cause death in the most severe cases. Slips, trips, and falls cause over 700 fatalities and other severe injuries yearly and are responsible for over 50% of all accident-related deaths. According to the CDC, one of every five slip-and-fall accidents results in a broken bone or head injury.

There are also different considerations to make depending on what caused the slip-and-fall to occur. Common causes of slip-and-fall liability in California include:

Wet floors,
Spills,
Leaks,
Poorly maintained rugs or carpeting,
Uneven/defective floors,
Lighting,
Uncovered cables and cords,
Broken or missing railings, and
Failure to warn about known hazards.

Liability for Slip-and-fall:

In California, the law of premises liability places on property owners and managers a duty of care to:

maintain their property in a reasonably safe condition, and
warn guests and visitors of dangers that may not be obvious.

The duty of care requires people who own, possess, or control property to reasonably maintain their property, inspect for and repair potentially dangerous conditions, and give adequate warning when ownership still needs to correct the dangerous condition. The general rule is that to impose liability for injury to an invitee due to a dangerous condition, the condition must have been known to the owner or occupant or have existed for such time that it was the duty of the owner or occupant to have known of it.

But who do you file a claim with when such an incident occurs? Different insurance policies are applicable depending on when and where the slip-and-fall occurred. For example, if you slipped and fell in a store or other business, you can file a claim under the company’s commercial liability insurance coverage. If you tripped and fell at a neighbor’s house, you may be able to file a claim under their homeowner’s insurance policy. If you slip-and-fall while in the course and scope of employment, you must file a worker’s compensation claim through your employer.

Does a rainstorm affect slip-and-fall liability?

We all must watch where we are going. Although there may be liability on a property/business owner for slips-and-falls, that may not always be the case. Businesses often argue that a reasonable person has the wherewithal to appreciate the increased risk of slip-and-fall during rainstorms. Nevertheless, that same logic is used to show notice to the business of the need to maintain the areas that track in the most rain due to customer use.

In Scott v. Alpha Beta Co., 104 Cal. App. 3d 305, 163 Cal. Rptr. 544, 20 A.L.R.4th 511 (2d Dist. 1980), an action for damages sustained by a business invitee who, on a rainy day, slipped and fell in the grocery store immediately after stepping off of a rubber mat. The court found the grocery store 60% negligent and the injured party 40% negligent. It held that the evidence was sufficient to allow the jury to conclude that the grocery store knew of the slippery condition of its floor and had failed to take reasonable precautions. Noting that it was raining at the time of the accident and had been doing so all day and that the grocery store had approximately 2,000 customers per day, the court explained that it knew or should have known that the floor would become wet.

This case highlights the responsibility of businesses to keep patrons reasonably safe from harm but also demonstrates that courts do consider the negligence of the patron when evaluating the extent of the owner’s liability. Businesses will use many defenses to fight even the most obvious liability against them. That is why it is essential to immediately contact an attorney who has experience preserving and gathering evidence that is important to prove your claim.

The city of San Francisco added street barriers along five blocks of Capp St from 18^th to 22^nd to deter alleged prostitution. This action may violate local statues and city fire codes. The fire department is worried about lack of access that could delay emergency response times.

In an interview with ABC news, Chris Dolan said:

“The fire code specifies the type of access that fire trucks need to have for public safety. The vehicle code allows local governments to put limitations on traffic movement based on crime. So both of these have an effect. They need to be balanced.”

“A public process including consultation with the fire department and other safety forces,” should be held in a public hearing. Dolan said “Many of the residents may have unique needs, for example, a resident may be disabled and may need access to their garage.”

Local city and emergency department need to come together to balance the needs of the community.

See full ABC News story here:

Written By Chris Dolan and Megan Irish

This week’s question comes from Rebeca from San Jose, who asks: Two weeks ago, I heard a loud commotion and went outside to see that a car had crashed into the corner convenience store. It went right into the glass front of the building, and only the trunk is visible from the sidewalk. Today it is all boarded up, and the store is closed. Has this ever happened before?

Dear Rebecca,

Unfortunately, yes, these kinds of crashes happen far more frequently than you can ever imagine, often causing injuries in addition to the apparent damage to the building. Who is responsible for these damages? The driver of the car? Surely. But is the store also responsible? Often, yes. When someone is hurt in a store front crash, they may be able to bring a claim for their injuries based on negligence and premise liability against the store.

Generally, in a negligence case, the injured plaintiff must prove the defendant has a duty, the defendant breached their duty, the breach caused the plaintiff an injury, and the plaintiff has suffered damages related to that injury. Generally, in a premise liability action, the plaintiff must show that a defendant owned, leased, or controlled the location of their injury, that the defendant was negligent in the use or maintenance of the property, that the plaintiff was harmed, and that the defendant’s negligence was a substantial factor in causing the plaintiff’s harm.

From the local coffee shop to the neighborhood grocery store and everything in between, cars can drive into the store and injure pedestrians, store patrons, and employees. Often the layout of the parking spaces outside the store leads to the vehicles’ intrusion into the building. When the parking spaces are placed directly in front of the store, which is perpendicular to the store, and the driver makes an error by pressing the gas instead of the brake pedal instead of coming to stop, the vehicle accelerates toward the building. A crash is imminent If the parking lot and storefront design do not have any barriers to stop the vehicle’s entrance onto the sidewalk and into the store. The crash can be minor and cause only property damage to the building, like a few broken windows, or it can be catastrophic and cause injury or even death to the pedestrians on the walkway, the patrons, or the employees inside the store.

This kind of “storefront crash” is a known risk to stores, and there are numerous ways to protect the storefront and keep patrons and pedestrians safe. For example, owners can install bollards to prevent a car from intruding into the space. A bollard is a slim, solid pillar that is seated into the ground. They are often about four to six inches in diameter and come up to about three or four feet. They are usually yellow to increase their visibility. They do not impede the flow of foot traffic and can easily be ADA-compliant. Also, placing attractive flower boxes with appropriate underpinnings across the front of a store can offer protection without impeding on a patron’s access to the store. Either of these or one of the numerous other options would protect the sidewalk area and storefront from any vehicle trying to park in the perpendicular stall that inadvertently jumps the curb and approaches the storefront.

The frequency of these types of collisions is staggering. Recently made public statistics demonstrate that the popular convenience store 7-Eleven has 1.14 store front car crashes a day, causing some personal injury or property damage. The now public data also shows repeated hits at the same stores. Some were hit three, four or five times. There is even evidence that one store was hit thirteen times! The recently released data also shows that between 2003 and 2017, there were 6,253 storefront crashes at 7-Eleven stores across the country in fifteen years. More public data about 7-Eleven shows another 1581 storefront crashes between 1991 and 1996.

These types of crashes happen. It’s a known hazard of stores with parking stalls perpendicular in the front of the store. And the store is oftentimes in the best position to prevent the injuries and damages associated with them. Hopefully, your local store will be repaired quickly, and no one inside was hurt.

Assuming The Risk of an Injury at a Baseball Game

Written By Christopher B. Dolan

Are You Assuming All The Risks In a Serious Ski Accident?

Written By Chris Dolan and Jeremy Jessup

Negligence

Gross Negligence

Assumption of the Risk

Eye Drops Causing Blindness Recalled By FDA

Are You Assuming All The Risks In a Serious Ski Accident?

Written By Chris Dolan and Jeremy Jessup

Negligence

Gross Negligence

Assumption of the Risk

Rainy Season: Slip and Fall Accidents Can Lead To Serious Injuries

Written By Chris Dolan and Anna Pantsulaya

What is a slip-and-fall claim?

Liability for Slip-and-fall:

Does a rainstorm affect slip-and-fall liability?

San Francisco Fire Department Concerned About Street Barriers

Cars Crash into Convenient Stores, Too Often.

Written By Chris Dolan and Megan Irish

March

Written By Christopher B. Dolan

Written By Chris Dolan and Jeremy Jessup

Negligence

Gross Negligence

Assumption of the Risk

Written By Chris Dolan and Jeremy Jessup

Negligence

Gross Negligence

Assumption of the Risk

Written By Chris Dolan and Anna Pantsulaya

What is a slip-and-fall claim?

Liability for Slip-and-fall:

Does a rainstorm affect slip-and-fall liability?

Written By Chris Dolan and Megan Irish