lawsuit gavel

Should baseball teams be held liable when foul balls injure fans?

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In most walks of life, whether someone is liable to you for injuries caused by alleged negligence is determined by a judgment call: was the harm foreseeable and did they act reasonably to prevent the harm from occurring? That’s a matter for a jury to decide, and the jury can take all of the specific facts of the case into account in making that determination.

Ballpark operators, however, have typically had a safe harbor that shields them from having a jury decide whether they acted prudently. It’s called “The Baseball Rule,” and it’s a legal doctrine which underpins those little “we’re not liable for you getting injured by flying balls and bats” disclaimers on the back of your ticket.

The way it’s usually formulated by the courts is that stadium owners and operators must provide “screened seats for as many spectators as may be reasonably expected to call for them on any ordinary occasion,” and that if they do that, they’re legally absolved of liability. Typically, providing screens behind home plate and around to each side to some degree puts owners in the safe harbor. In that case, it’s a matter of law, not fact, and the judge will usually dismiss the case before it ever gets to a jury.

That rule has been challenged more and more in recent years. It’s still the majority rule across U.S. jurisdictions, but last year, for example, an Idaho court refused to adopt it in the case of a man injured by a foul ball and allowed a jury to decide whether the ballpark owner acted reasonably based on the facts and circumstances of the case rather than to simply dismiss it per The Baseball Rule. Now, in Atlanta, a family is challenging it in the wake of their six-year-old daughter suffering traumatic brain injury from a foul ball at a Braves game in 2010.

I get asked about The Baseball Rule a lot and I’ll admit that I’ve never felt 100% confident about it either way. On the one hand, baseball’s arguments for it are reasonable: fans actually want to catch foul balls and don’t like sitting behind the screen unless they’re right down low. If you put teams in the legal crosshairs for foul ball injuries and/or mandate that they put screens way down the lines teams will have little choice but to either move fans far from the action or block their view, making the product they’re selling — good seats at a ballgame — far less attractive. No one really wins in that scenario.

On the other hand, the ballpark experience has changed quite a bit since The Baseball Rule was first recognized. There are more distractions from game action. It’s far more of a family product than it used to be and you thus get a lot of little kids who can’t be expected to defend themselves from foul balls in the stands. Parks are also far more full and seats behind the screens are far more expensive than they used to be, making that part of The Baseball Rule in which spectators “may reasonably call” for screened seats potentially unworkable. Teams are often forcing people to choose between being out in the bleachers or paying $250 for a screened seat.

I don’t want to turn ballparks into padded cells, but I also think that the risks, particularly to children, of sitting in unprotected seats down the lines are undersold by teams and under appreciated by fans. It’s dangerous down there. Maybe a good step in between letting ballpark operators off the hook completely and making them liable absolutely is to make them warn fans far more explicitly. To actually publicize to fans what can actually happen to you if you’re hit by a screaming foul ball. To make fans actually assume the risk in the form of an actual waiver instead of the assumed one written on the backs of tickets which are rarely if ever read. Perhaps to make people who take young children to games explicitly disclaim responsibility or else not sit in unprotected seats.

As it is now, the warnings are pretty passive and the risks not as well-known as they could be. And the disclaimer system is something of a joke. Making each of these things more rigorous might have some small costs involved — kid-priced seats so as to identify and differentiate those who would sit in dangerous seats with children? A second piece of paper or an usher with a clipboard taking actual liability waivers? — but those costs pale compared to the sorts of liability awards teams might face if The Baseball Rule continues to be eroded.

And they pale even more definitively compared to the price some people, particularly some children, have paid with their health and even their lives.

Report: Padres trade Matt Kemp to the Braves for Hector Olivera

SAN DIEGO, CA - JUNE 06:  Matt Kemp #27 of the San Diego Padres talks in the dugout prior to the start of the game against the Atlanta Braves at PETCO Park on June 6, 2016 in San Diego, California.  (Photo by Kent Horner/Getty Images)
Kent Horner/Getty Images
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Update (7:01 PM EDT): David O’Brien of the Atlanta Journal-Constitution reports the deal has been completed.

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ESPN’s Keith Law reported on Saturday evening that a bad contract swap involving the Braves’ Hector Olivera and the Padres’ Matt Kemp was “getting close.” Olivera has been pulled off the field, per Bob Nightengale of USA TODAY. Joel Sherman of the New York Post reports that only a last-second medical would kill the deal at this point, and that the Padres will be sending money to the Braves.

Kemp, 31, will have $64.5 million remaining on his contract through 2019 after this season, but the Dodgers will pay $3.5 million annually over those remaining three years, so the $64.5 million is really $54 million. The veteran has compiled a .262/.285/.489 triple-slash line with 23 home runs and 69 RBI in 431 plate appearances for the Padres this season.

Olivera, 31, will have $28.5 million remaining on his contract through 2020 after this season. The outfielder was handed an 82-game suspension, beginning on May 26, for his involvement in a domestic dispute on April 13. The suspension is up on August 2. He has a .501 OPS in 21 major league at-bats this season and a .278 OPS in 37 PA at Triple-A.

Dennis Lin of the San Diego Union-Tribune reports that the Padres will consider designating Olivera for assignment. The trade is all about the salary dump for the Padres, as they’d rather give outfield playing time to prospects Hunter Renfroe and Manuel Margot.

Athletics trade Billy Burns to the Royals for Brett Eibner

ST. PETERSBURG, FL - MAY 13: Billy Burns #1 of the Oakland Athletics waits on deck to bat during the fourth inning of a game against the Tampa Bay Rays on May 13, 2016 at Tropicana Field in St. Petersburg, Florida. (Photo by Brian Blanco/Getty Images)
Brian Blanco/Getty Images
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The Athletics and Royals swapped outfielders on Saturday. The Athletics sent Billy Burns to Kansas City and the Royals sent Brett Eibner to Oakland.

Burns, 26, doesn’t provide much in the way of offense, but he runs the bases well and plays solid defense. He was hitting .234/.270/.303 with 11 doubles, four triples, and 14 stolen bases in 274 plate appearances.

Eibner, 27, was batting .231/.286/.423 with three home runs and 10 RBI in 85 plate appearances. He has spent most of the season with Triple-A Omaha, where he’s put up a .902 OPS in 219 PA. Eibner played the outfield corners in the majors, but racked up a ton of time playing center in the minors, so his versatility will be valuable to the A’s.

Burns will become eligible for arbitration for the first time after the 2017 season while Eibner has hardly accrued any service time, which might explain part of the motivation behind the trade for the small-market Athletics.