Thursday, August 25, 2011 was a rainy evening in the Bronx, and many fans at Yankee Stadium had their umbrellas out. While those umbrellas may have protected fans from the rain, they also obscured Andy Zlotnick’s view of home plate from his seat down the first base line. So, when Hideki Matsui ripped a line drive foul, Zlotnick never saw it. According to a recent story in the New York Times, the ball crushed the bones around Zlotnick’s left eye socket and fractured his sinus and upper jaw. Four years later, Zlotnick feels pain at the touch of the left side of his face, his vision is blurred, and his mouth is partially numb. Zlotnick’s injuries cost him $25,000 out of pocket, but the New York Yankees maintain they bear no responsibility because of the long-standing rule that fans who attend baseball games assume certain risks.
You can read the language of the baseball rule on the back of every ticket: “The bearer of the ticket assumes all risk and danger incidental to the sport of baseball.” Foul balls, inadvertently thrown bats or splintered bats often fly into the stands at Major League ballparks. If fact, about 1,750 fans each year suffer injuries “incidental to the sport,” compared to 1,536 times a batter actually playing the game was hit by a pitched ball last season. Yet despite the number of injuries, some as severe as — or worse than — Zlotnick’s, baseball remains immune to lawsuits because of the traditional notion that fans assume the risk when they attend a game.
Nevertheless, Zlotnick filed a personal injury lawsuit in 2012 against the Yankees and Major League Baseball. In July 2013, the judge set a deposition schedule. Then, after taking Zlotnick’s deposition in February 2014, lawyers for the Yankees filed for summary judgment, urging a dismissal based on assumption of risk. The judge has not yet rendered a decision.
Zlotnick may have a better-than-usual chance with his lawsuit because of the role the umbrellas played in his injury. Many Major League parks ban umbrellas or only allow fans to use them during rain delays. Zlotnick asserts that it was the Yankee’s umbrella policy that contributed to his injury, and the main goal of his lawsuit is to compel the Yankees to change that policy.
If Zlotnick is successful, other fans and their attorneys may wonder if baseball’s assumption of risk defense is showing age. Standards of safety change with the times, especially when advances in technology allow for improved safety measures at little cost to would-be defendants. Baseball has resisted calls to put additional safety netting up along its field level seats because fans pay a premium for those seats with their great view of the field. But if it is possible to protect fans with sheer, virtually transparent netting, perhaps this is something baseball should consider. Teams that take the lead on this issue could send a strong signal to the traditionalists that they must follow or risk liability under new industry standards for fan safety.
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