Atlanta Braves face lawsuit over ball-to-face injury

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In the “baseball rule," when you enter a baseball stadium, you are assuming the inherent risk that you could be hit by a ball. A lawsuit against the Atlanta Braves could change that rule.

Courts across the country have been eroding a century-old legal doctrine that comes with your popcorn and Cracker Jacks.

It’s called the “baseball rule," and it generally means that when you enter a baseball stadium, you are assuming the inherent risk that you could be hit by a ball.

A Georgia lawsuit is further challenging that rule.

It stems from an Atlanta Braves World Series game in 2021.

Here to talk about the “baseball rule” and the lawsuit is St. Louis attorney Garrett Broshius, who spent six years playing in the minor leagues before becoming an attorney and sports law expert.

Orlando Montoya: What is the origin of the baseball rule?

Garrett Broshius: So a little over a hundred years ago, courts started grappling with the effects of having foul balls flying into the stands and spectators being hit by those foul balls. It was, you know, alongside the origin of professional baseball as we know it. And at that time you have to remember that fans could get very close to the field. And so unlike today where there are distinct barriers and fans aren't allowed to get anywhere close to the field, back then, if you look at old pictures, you'll see spectators can get right up next to the foul lines at these games. And what the courts eventually decided a hundred years ago is that a person assumes the risk of being hit by a foul ball when they attend a baseball game. And so it's an old common law doctrine called assumption of the risk that bars a lawsuit from an injury.

Orlando Montoya: Where does the baseball rule stand now in the light of recent court rulings?

Garrett Broshius: So what we've seen over the past 100 years is we've seen courts kind of take a new approach more recently to the baseball rule. And it's really a continuation of some things that have happened over the course of the last century. So in the 1970s, courts started looking at some of these old defenses that were in injury law and saying, "well, we don't necessarily like absolute bars to lawsuits. Instead, let's let more things get to the jury." So whereas before you had systems that absolutely barred lawsuit center negligence, instead you had a doctrine that replaced it called comparative negligence, where you let the jury decide is one person 30% at fault, the other person 70% at fault. Or is one person 40% or 50% or whatever, we began having more trust in juries. And so more things began going to the jury. And so what you've seen over the last couple of decades, then, is you've seen that sort of transition into the baseball rule, too, where we don't like this absolute bar to lawsuits.

Orlando Montoya: And that leads us to the 2021 World Series Atlanta Braves lawsuit. You're not involved in that suit, but you have seen the most recent ruling from the Georgia Court of Appeals. Can you describe briefly what the plaintiffs are claiming in that case?

Garrett Broshius: Yeah, and this is not surprising to see the Georgia Court of Appeals come down in this situation, because basically what the plaintiffs are alleging is that they're hit by a ball that's thrown from an outfielder in between innings. And so this is a little different than your normal scenario of a foul ball hitting a person during the game. And so the allegation by the plaintiff is that, well, this isn't just incidental to the game itself. But it's instead something extra and less expected. When you attend a baseball game, it's in between innings, you don't necessarily expect one of the fielders to throw a ball into the stands.

Orlando Montoya: What else should the courts consider in this case?

Garrett Broshius: Well, there are a couple other things I think that are in play here. And one of the things I think that are at play is as the courts consider these types of things, they think about, okay, well, who was really negligent here and should we have that absolute bar or not? And so one of things down the road in this case that they're going to be looking at is, well, was the fan paying attention? How often do things like this occur? Because the assumption of the risk doctrine relies on the notion that things should be — certain types of things are expected. And so when a fan attends a baseball game, you expect a foul ball to happen during games, you assume that risk. So other courts in the last two decades looked at things like mascots doing activities between innings and whether something like that. There's a case from Missouri that involved a mascot throwing a hot dog. And a fan was unfortunately hit in the eye by this hot dog. It sounds kind of goofy, but it really hurt his eye. And the courts let that case go forward because you don't expect and you don't assume the risk of being hit by a hot dog thrown by a mascot in between innings. How hard did the outfielder throw this ball? Did he just lob it in or did he actually fire it in the way that the allegations are made out to be? Let the jury weigh these things, work it out.

Orlando Montoya: Are there arguments to be made that the baseball rule should be limited because the game and the law have changed in the last 100 years? I mean, balls are much faster, therefore much more dangerous. Fans are distracted more with their phones. Netting is more widely used and society and the law with it have evolved to be more focused on people's safety. What are your thoughts?

Garrett Broshius: Yeah, absolutely. I think you're seeing that. I think that's why you're seeing some erosion of this rule. With your normal typical foul ball, this rule is still going to apply. But what you have seen is you've seen pressure on Major League Baseball to extend netting in recent years, for instance. And eventually they did add that netting. So, and that's a reflection of we as a society demanding certain standards and upgrades and I think the law mirrors that expectation in society sometimes, to. Especially when you have common law stuff like this, common law meaning that it evolves over time. Things do reflect society's expectations sometimes.

Orlando Montoya: We reached out to the Atlanta Braves for their comments on this case. They did not respond. Do you think they'll ultimately prevail or settle this matter?

Garrett Broshius: Well, over 90% of things like this do settle. So I would say after this appeal and once the case goes back, I think there is a very good chance that it does settle. For people like me who like reading about these types of decisions, you almost hope it doesn't settle because you always welcome new developments in the law on this. But I think most likely it would settle at some point once it goes back before it goes to a trial.

Orlando Montoya: That's St. Louis attorney and sports law expert, Garrett Broshius. Thanks for speaking with me.