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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.

Play of the Day: Fan reaches over second deck railing, catches foul ball with her hat

MILWAUKEE, WI - JULY 28:  Paul Goldschmidt #44 of the Arizona Diamondbacks hits a single in the sixth inning against the Milwaukee Brewers at Miller Park on July 28, 2016 in Milwaukee, Wisconsin. (Photo by Dylan Buell/Getty Images)
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Today’s play of the day wasn’t made by a professional athlete. Rather, it was made by a fan in the second deck on the first base side at Miller Park during Thursday afternoon’s game between the Diamondbacks and Brewers.

Phil Gosselin fouled off a 1-1 fastball from Will Smith to the right side. A fan wearing purple — perhaps in support of the D-Backs? — leaned over the railing of the second deck and snagged the ball with her bucket hat.

The Brewers beat the Diamondbacks 6-4. They took three games out of the four-game series. Heading into the August 1 non-waiver trade deadline, they’ll host the Pirates for three games.

Royals place Luke Hochevar on the disabled list

ST. LOUIS, MO - JUNE 29: Reliever Luke Hochevar #44 of the Kansas City Royals pitches against the St. Louis Cardinals in the seventh inning at Busch Stadium on June 29, 2016 in St. Louis, Missouri.  (Photo by Dilip Vishwanat/Getty Images)
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The Royals announced on Thursday evening that reliever Luke Hochevar has been placed on the 15-day disabled list (retroactive to July 25) as he’s showing signs of thoracic outlet syndrome, MLB.com’s Jeffrey Flanagan reports. Reliever Brooks Pounders has been recalled from Triple-A Omaha.

Thoracic outlet syndrome, simply put, is the compression of blood vessels and nerves between the neck and the shoulder. As we’ve seen lately, the fix for this often involves surgery to remove the pitcher’s upper rib.

Hochevar, 32, has compiled a 3.86 ERA with a 40/9 K/BB ratio in 37 1/3 innings. The right-hander, who can become a free agent after the season if either he or the Royals decline his 2017 option, was a potential trade candidate recently mentioned by Jon Heyman of Today’s Knuckleball.