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A Philadelphia dentist who suffered permanent eye damage when he was struck by a foul ball while attending a 2001 Phillies game could have anticipated the risk of such an event and may not sue the ball club or the city of Philadelphia for negligence over the incident, a Pennsylvania Commonwealth Court panel has ruled. Affirming the decision of Philadelphia Common Pleas Judge Joseph I. Papalini to grant summary judgment to the Phillies and the city in Pakett v. The Phillies, the judges concluded that the no-duty rule typically applied to claims stemming from spectator sports-related injuries applies to Neil Pakett’s case, as well. “[Neil Pakett and his wife, Jeanette,] contend that here, … the ‘no-duty’ rule is inapplicable because the risk to which Pakett was exposed was not one of the risks inherent to the game of baseball,” Judge Rochelle S. Friedman wrote. She added later, “Pakett maintains that … his action was based on an alleged construction defect, i.e., a backstop configuration that did not comply with applicable engineering principles and did not afford spectators in dangerous locations adequate protection or sufficient response time to either catch or move away from [a] foul ball. We cannot agree.” Friedman was joined by Judge Doris A. Smith-Ribner and Senior Judge Joseph F. McCloskey. According to Friedman’s opinion, Pakett, who was sitting in Section 232 the day he was struck by the foul ball, had sat in that section a number of times in preceding years and was aware that foul balls were occasionally hit into that area over the course of a typical game. In the bottom of the first inning, a foul ball was hit toward Section 232, and Pakett saw the ball coming and held up his bare hand to catch it, according to the opinion. But Pakett didn’t catch the ball, which hit him in the right eye, causing temporary blindness. Pakett has undergone surgery on his eye, but has not yet regained total vision. Pakett and his wife filed separate negligence suits against the ball club and the city, citing failure to create a backstop large enough to protect spectators sitting in certain areas. According to the opinion, Pakett was sitting in a seat 80 feet from home plate, to the left of a plastic barrier put in place behind the backstop in 1996. The backstop at the now defunct Veterans Stadium was installed in 1971 and ran from the first base side to the third base side, according to the opinion. Overhead netting was set up in the 1980s. In orders handed down in October 2004, Papalini granted both the Phillies’ and the city’s motions for summary judgment in Pakett. “Applying what is generally known as the ‘no-duty’ rule, the trial court held that, as a matter of law, neither the city nor the Phillies had a duty to protect Pakett from, or warn Pakett of, the risk of being struck by a foul ball while he was sitting in the stands watching a game,” Friedman wrote. In support of his case, Pakett presented the testimony of two experts, the first of which argued that the backstop should have been wider, the second, that if the backstop had been erected on a different angle, the seat in which Pakett was sitting would have been protected, Friedman wrote in a footnote. On appeal, Pakett relied heavily on the Pennsylvania Supreme Court’s 1978 decision in Jones v. Three Rivers Management Corp., a case that involved a negligence action brought by a woman struck by a foul ball during pre-game batting practice as she stood in a walkway behind the stadium’s stands. While acknowledging that the “no-duty” rule usually bars claims brought by those injured while attending spectator sports events, the Jones court declined to apply that rule in that case, holding that application of the rule should not be extended to cases involving injuries that could be said to result from a facility’s particular architectural design. “In order to defeat summary judgment, plaintiffs had to show either that the danger was not an ‘inherent risk’ of the game of baseball or that the backstop in Veterans Stadium deviated in some relevant way from the established custom in ballparks,” Friedman wrote, citing Jones. “Under the present facts, plaintiffs cannot satisfy either of these burdens; therefore, they have not established an exception to the ‘no-duty’ rule.” The Paketts were not able to produce any evidence that the measurements of the backstop and the netting at the Vet differed relevantly from those found at other major baseball stadiums, according to the opinion. “Because the trial court did not err in concluding that recovery is foreclosed to plaintiffs, we affirm,” Friedman wrote. Robert Foster of Reger Rizzo Kavulich & Darnall in King of Prussia, Pa., who represented the Phillies along with Robert Reger, said Pakett is one of three ballpark injury cases his firm has been involved with recently. The plaintiff has appealed to the state Supreme Court in one, and to the Superior Court in the other. “Three pending [ballpark injury] cases at one time was unusual” for us, Foster said. “It usually takes a fairly serious injury for someone to find a reason to try to break the threshold.” The Paketts’ case was handled by attorneys from Eisenberg Rothweiler Schleifer Weinstein & Winkler; attorneys from Marshall Dennehey Warner Coleman & Goggin represented the city on appeal. Calls to both firms seeking comment were not immediately returned.

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