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Should the Dodgers have revealed that a fan was killed by a foul ball last year?

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Last night we learned that a woman died after being hit with a foul ball at Dodger Stadium last summer. As explained in our article about it, it’s a rare, rare occurrence — only three spectators have been known to have been killed by flying baseballs in the game’s 150-year history — but it’s nonetheless a tragic story.

We learned in the story that the Dodgers entered into a settlement and confidentiality agreement with the family of the woman who was killed and that that, in part, is why we did not hear about the incident until now, several months after the fact. The Dodgers and MLB did not volunteer this information to the public. They didn’t, I suspect, because it was not at all apparent to passive onlookers at the time of the incident that the woman sustained a life-threatening injury and thus no one thought to ask them. After the settlement, of course, they had their own obligations of confidentiality.

In the wake of the story, many people asked me whether, despite no one asking them about it, the Dodgers or Major League Baseball had some sort of legal duty to tell the public that a person was killed by a foul ball at the game. I can’t think of one. But given the state of legal liability for baseball teams and leagues regarding injuries from foul balls — and given how the game has changed since that legal framework came into being — if I was the general counsel of a baseball team, I’d have made it very clear to the public that it happened, even if not obligated to do so and even if doing so did not serve any public relations purposes. I’d do it for simple, basic legal protection going forward.

Warning: some legal stuff ahead, but nothing too complicated.

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 the person getting sued 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 immunizes them from having a jury decide whether they acted prudently. It’s called “The Baseball Rule,” and it’s a legal doctrine, over a century old and bolstered over time in the case law, which underpins those little “we’re not liable for you getting injured by flying balls and bats” disclaimers you see on the back of your ticket. A lot of similar disclaimers at amusement parks or recreational facilities are easily set aside, but in baseball, this long-standing safe harbor largely remains in place, mostly unchanged and almost totally effective, to this day. As is the case with antitrust law, courts have always given baseball a bit of special treatment.

Not that it relieves ballpark operators of any obligations 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. Providing screens behind home plate and around to each side to some degree, which all major league parks do, puts owners in the safe harbor. In that case, it’s a matter of law, not fact, and the judge will usually dismiss a case involving a batted-ball injury to a spectator before it ever gets to a jury.

Though that rule has been challenged more and more in recent years, it’s still the majority rule across U.S. jurisdictions. To the extent it has been chipped away at, that chipping has been limited. For example, several years ago 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. A couple of years later, in Atlanta, a family is challenged it in the wake of their six-year-old daughter suffering traumatic brain injury from a foul ball at a Braves game in 2010. The Braves settled that case before the judge could rule on The Baseball Rule component of the case.

There are likely to be more challenges to The Baseball Rule over time, mostly because the ballpark experience and the nature of the game itself has changed pretty fundamentally since 1913. Indeed, the circumstances of a baseball game today are radically different than they were when The Baseball Rule was adopted.

  • There are more distractions from game action now than there used to be, with most of those distractions — on-field entertainment, scoreboard displays, team and league-approved smart phone apps seeking to “enhance” the in-game experience — being supplied by the teams themselves;
  • Baseball games are 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, the seats are closer to the action and, even if Major League Baseball has encouraged teams to extend protective netting down the baselines, the protected seats behind that netting are far more expensive than they used to be.

That last bit makes the 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 fairly steep prices for a screened seat. Given that this is a legal defense that hinges on the reasonable precautions a fan should take — and that like most tests of “reasonability” it’s essentially a cost-benefit determination — that price point has an impact on a court’s calculus as to what is reasonable.

Even more relevant is nature of ballparks themselves. In a recent law review article Nathanial Grow, whose work with baseball and the law we have cited here many times before, found that fans’ risk of being hit by a flying object at MLB games has increased dramatically in the past 25 years or so. The post-Camden Yards building boom has, in the aggregate, put fans about 20 percent closer to home plate than they were for most of the 20th century. as of now, around 1,750 fans are hurt each year by foul balls at MLB games. Fans are hurt, on average, more often than batters are hit by pitches. Presumably this number is on its way down somewhat thanks to the recently-extended netting, but it’s still a far more common threat than most fans likely suspect.

Finally there’s the matter of the speed at which baseballs travel out of the ballpark. We’ve always known that batted balls can scream out of the park or into the stands, but the StatCast era has begun to quantify that, with triple-digit readings being common. As Grow’s article noted, if a ball is hit between 100-110 miles per hour a fan seated 60 feet from home plate has four-tenths of a second to react. Baseball, it should be noted, has turned this into a marketing point of the game, with broadcasters, analysts and the game’s sanctioned social media accounts loudly crowing about just how fast these balls are moving. Teams and the league not merely aware of this fact, they are reveling in it and are using it to sell the game itself.

Which brings me back to the Dodgers and the tragedy that unfolded.

As noted, fan deaths due to foul balls are very, very rare. And, as noted in our original article last night, the fan who was killed was sitting above where the now-extended netting sits. This may suggest to some that this was a freak accident and, in some ways, yes, it may be appropriate to characterize it as such. But while perhaps freakish in result, there was nothing freakish in the events which led to it. It was an ordinary pitch and an ordinary foul ball on what was, otherwise, an ordinary night at Dodger Stadium. It may have been a rare occurrence, and the odds favor it not happening again any time soon, but there was nothing extraordinary about it and nothing from stopping it from repeating itself again.

If you’re the Dodgers, you know all of this. You also know that, due to all of the extended netting and the publicity which surrounded it, fans may have been lulled into a false sense of security about where and how they might be injured by a flying baseball. You are also, simultaneously, telling fans just how totally awesome it is that baseball players can hit balls at 100+ m.p.h. and isn’t that great fun. Finally, and most importantly, you know that your legal protection from being sued over a batted ball injury of fatality depends on a legal doctrine that hinges on a fan’s knowing assumption of all of these risks.

While I’m not a fan of  “The Baseball Rule,” against the relevant factual and legal backdrop, if I’m the Dodgers’ lawyers, I make it very well known that a fan died at the ballpark last year. I let as many Dodgers fans know that 100 m.p.h. foul balls can kill a person and that simply being behind the netting won’t keep you 100% safe. Maybe the Dodgers have reasons for not having done that — and now that it’s out, I suppose the matter is moot — but I can see no upside to not letting fans know about injuries or deaths that occur in the ballpark.

Orioles set new MLB record with 259th home run allowed

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A third-inning solo home run by Austin Meadows off of Asher Wojciechowski on Thurday night marked the 259th home run Orioles pitching has allowed this season, setting a new major league record, per MASN’s Roch Kubatko. The previous record was held by the 2016 Reds at 258. Willie Adames hit No. 260, a game-tying solo shot in the fifth inning. The Orioles will have 34 more games to add on to their record after tonight.

The Yankees have famously accounted for 61 of the 260 home runs (23.5%) against Orioles pitchers this season. The Red Sox are next at 28 followed by the Twins and Blue Jays at 23 each.

David Hess has accounted for the most home runs on the O’s staff, yielding 28 dingers. Dylan Bundy is next at 25 homers allowed.

The Orioles are not the only team that will pass the 2016 Reds. The Mariners are on pace to allow 275 home runs. The Yankees, 266. Phillies, 262. Angels, 259. Pretty amazing.