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HARTFORD, Conn. � Michael Teixiera took one for the team. He lost his personal injury case against the New Britain Baseball Club Inc., after he was struck in the testicles by an errant ball. But if Connecticut continues to follow the “limited duty rule” applied by New Britain Superior Court Judge Dan Shaban, the traditional proximity of ballplayers and spectators can be preserved. “[O]ne of the great lures of the game that still remains to bring spectators to the park, young and old alike, is the anticipation and hope that by the end of the game they will leave with a souvenir in the form of a ball that has come off the field of play,” Shaban observed. Teixiera, a former varsity baseball player at Florida State, took his young son to a New Britain Rock Cats game on July 3, 2004, and was enjoying the all-you-can-eat barbecue at an area known as The Patio, near the first base line. Players were warming up on the field, and Teixiera couldn’t tell whether the ball that hit him was thrown or batted. He was represented by John Houlihan Jr., of Hartford’s RisCassi & Davis. Teixiera charged that the ball club lacked adequate fencing, that it allowed players to throw towards The Patio, and that it failed to adequately warn of a serious danger. The ball club was represented by Hartford’s Howd & Ludorf. It moved for summary judgment on the grounds that Teixiera assumed the risk, that warnings were either not required or legally adequate, and that under the “limited duty rule,” the ball club was not liable. That rule, adopted by about half the states, requires a baseball club to erect protection behind home plate. As long as patrons can choose between shielded and unshielded seating, the park has fulfilled its duties. Based on the rule in the other half of the states, Teixiera contended he was a business invitee, entitled to the broader premises liability standard requiring the owner to use ordinary care to make the premises reasonably safe. Shaban relied on the reasoning of the Michigan appellate court in its 2001 ruling in Benejam v. Detroit Tigers. (The Tigers were a charter member of the American League when it was founded in 1901 to rival the National League.) The doctrine that partial screening fulfills the park owner’s duty of care, the Michigan court wrote, “prevents burgeoning litigation that might signal the demise or substantial alteration of the game of baseball as a spectator sport.” On the duty to warn issue, Shaban first concluded that the ball club had none because the danger was open and obvious. Alternatively, signs warning to watch out for foul balls would discharge the duty. “There was adequate notice to enable the plaintiff to take whatever precautionary measures he felt were appropriate under the circumstances to secure his safety,” Shaban concluded. Teixiera has decided not to appeal. His lawyer, Houlihan, did not immediately return a call for comment. Vossler, for the ball club, said “I think it’s a great decision; the judge was correct on the law and on the facts.” Shaban noted in his history-rich analysis that in the 137 years since baseball has been played professionally “baseballs have been batted and thrown on and around the field of play with spectators always close to the field.” Up until the 1940s, he noted, many parks even allowed spectators to watch on the field, along the outfield fence and down the foul lines. Thomas B. Scheffey is a reporter with The Connecticut Law Tribune, a Recorder affiliate based in Hartford.

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