Commentary: Baseball’s Protection From Litigation Needs to Change

We live in a society that is both risk-averse and litigation-mad. Not surprisingly, these two things go hand in hand.

After a handful of crashes involving Toyota Motor Corp. automobiles, said to be the result of sudden acceleration, the company undertook a huge recall, while being sued by both crash victims and the government. It ultimately paid about $2.3 billion to settle the cases. Mattel Inc. recalled 19 million toys after discovering that one of its Chinese manufacturers had used lead paint – even though the lead level was minimal, and no one could point to a single child who had been harmed. It was nonetheless hit with lawsuits, which it settled two years later. And of course, McDonald’s Corp. was once famously sued when a woman burned herself after spilling a cup of hot coffee on her lap. Although the lawsuit was widely ridiculed, most disposable coffee cups now come with warnings.

To put it another way, it doesn’t take much for the plaintiff’s bar to rev into action – or for companies to react by improving the safety of their products, even when those products are already pretty safe. Yet while plaintiffs’ lawyers can be overly opportunistic, what would life be like if they didn’t exist – if people were unable to sue when they were injured, and if companies didn’t have to fear such lawsuits? There are at least two industries I can think of that offer examples of what such a world would be like. One is the gun industry, which, thanks to Congress, cannot be sued when its products kill people.

And the other is baseball.

According to a landmark article written in 2014 by Bloomberg’s David Glovin, some 1,750 fans are injured each year by foul balls or broken bats that fly into the stands. Most of these injuries are minor, of course, but some of them are very serious. A man who loses his eye after being hit with a screaming foul ball. A child whose skull is shattered. A woman whose head is split open when it is pierced by a splintered bat.

Every new baseball season brings at least two dozen injuries that are that bad or worse. Yes, it’s true that, with Major League Baseball attendance topping 73 million in 2016, the percentage of fans who are seriously injured is minuscule. Nonetheless in most other corners of the American economy, an annual toll of two dozen serious injuries would be more than enough to justify a mass tort. Fans with the worst injuries from bats and balls often require multiple surgeries and months if not years of recovery. They would make very sympathetic plaintiffs. Andrew Zlotnick, a New York real estate lawyer who had his left eye and face smashed in by a hard-hit foul ball at Yankee Stadium in 2011, told me that the left side of his face is still so painful to the touch that his wife can’t kiss him there.

However sympathetic they might be, these injured fans have almost no ability to have their day in court. That’s because every ticket to a baseball game comes with a disclaimer that reads something like this: “The bearer of the ticket assumes all risk and danger incidental to the game of baseball.” This “assumption of risk” doctrine is hardly unique to baseball – auto racing employs it, for instance. Yet in 2013, when there was a terrible crash at Daytona International Speedway that seriously hurt more than a dozen people, the injured fans were not only able to sue NASCAR, they also came away with significant settlements. Baseball fans don’t have that same recourse because the assumption of risk doctrine is so deeply embedded in the case law surrounding baseball injuries. There’s even a nickname for it: “the baseball rule.”

There are two reasons this matters. The first is that a modern professional baseball game is different from the game of 30 or 40 years ago. Players are bigger and stronger (and, perhaps, pumped up on steroids). Many of the newer ballparks, seeking to create a more intimate experience, have put the stands closer to the foul lines, shortening the distance between the fans and the field. There are all kinds of stadium-created distractions, including free Wi-Fi. A hard-hit foul ball takes about a second to get into the stands; even without any distractions, a child in the path of that ball has no chance. In truth, neither do most adults. How, exactly, are you supposed to assume a risk you can’t get out of the way of?

The second reason is that the vast majority of baseball injuries are completely preventable. All the teams would have to do is put the kind of netting that now exists behind home plate down the foul lines. In late 2015, Major League Baseball commissioner Rob Manfred “encouraged” teams to extend netting an additional 70 feet from home plate – which hardly covers those fans who are truly in harm’s way. Since then a handful of teams have extended nets to the end of the dugouts. That’s still not enough: The foul balls that are truly crushed usually go beyond the dugout into the seats down the first- and third-base lines.

Adding netting down the foul lines wouldn’t be terribly expensive. They could still allow fans to catch harmless pop flies, while avoiding foul line drives and broken bats. The nets could be lowered between innings so that players could toss balls to little kids between innings. And modern nets scarcely impede a fan’s ability to see the game.

Baseball teams, however, worry that the fans who buy those up-close seats – usually season ticket holders who pay premium prices – won’t want to sit behind netting. Sensibly enough, they want to keep those fans happy. But it is also true that there is no pressure on the teams to do more to protect their fans. If someone gets hurt, the team usually sends them a signed bat and ball – and maybe a player visits the fan in the hospital – and then it’s back to business as usual.

On Wednesday, after lobbying by Zlotnick, who has become the leading advocate for more netting, a New York City councilman named Rafael Espinal Jr. filed a bill to force the Yankees and the Mets to extend the netting at Yankee Stadium and Citi Field. If the bill gets any traction, that will create one kind of pressure. Zlotnick, meanwhile, has a long-running lawsuit against the Yankees. Like most injured fans who try to sue, he lost at the lower court level. But he is appealing, arguing that a legal reconsideration of the assumption of risk doctrine in baseball is long overdue.

I’m no fan of the plaintiff’s bar. Over the years, I’ve written stories and columns complaining about abusive shareholder litigation, about asbestos lawsuits, about mass torts that forced companies to pay billions despite a lack of scientific evidence, and so on. But baseball’s callous disregard of serious injuries at the ballpark has caused me to come to the sad conclusion that the only thing worse than plaintiffs’ lawyers is no plaintiffs’ lawyers. I guarantee that if injured fans were able to successfully sue baseball, netting would go up tomorrow.

Until then, baseball will continue to look the other way when its customers are hurt. Just because it can.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.