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Sports-injury litigation took on a new dimension in New Jersey last week as the state Supreme Court ruled that a ballpark patron hit by a foul ball while buying a beer can sue the park owner for negligence. The ruling alters the long-standing “baseball rule” — a limited-duty-of-care doctrine that for more than a century has shielded stadium owners from litigation. Fans agree to assume a risk of injury, such as from a foul ball or thrown bat, as part of the experience of being close to the game. To foster that up-close feel, there is very little separating fans and the field. But the Sept. 13 ruling, which affects the eight minor league baseball stadiums that have opened in New Jersey in the past 10 years, may prompt teams and owners to erect nettings, screens and other protective barriers between fans and the field to avoid liability. Justice James Zazzali led a 5-2 majority in striving to keep the baseball rule viable for parts of the ballpark but not others. He drew a distinction between “the stands” — actually, the seats at a stadium — and concourse areas where concession stands are typically located. “We hold that the limited duty rule, which restricts the tort liability of owners, applies in situations where an injury occurs in the stands,” Zazzali wrote in Maisonave v. Newark Bears Professional Baseball Club, Inc., A-59/60-04. “However, public policy and fairness require application of traditional negligence principles in all other areas of the stadium, including, but not limited to, concourses and mezzanine areas.” In this case, Louis Maisonave was hit with a foul ball while buying a beer from a vending cart at Newark’s Bears and Eagles Stadium in 1999, when the new ballpark’s permanent concessions were still under construction. Vending carts were located on the mezzanine, along both the first- and third-base lines, in full view of the field. In fact, since vendors stood with their backs to the field, patrons could watch the game as they were buying food and beverages. But according to the suit, Maisonave was chatting with other fans and reaching for money when someone said, “Look out!” Gray areas such as these will test the reach of the court’s ruling. Ballparks vary greatly in design, and deciding which areas constitute “the stands” may become a venue-by-venue fact determination. Zazzali made an effort to define “the stands,” saying it “includes the stairs that fans ascend and descend to access their seats in the stands” as well as “areas immediately adjacent to the stands designated as ‘standing room only,’ and dedicated solely to viewing the game.” But “multipurpose areas, such as concourses and playground areas,” where fans’ attention is distracted from the game, are outside the limited-duty rule. “Once the fan has disengaged him- or herself from the activity on the field and has left the stands, that individual is no longer trying to catch foul balls or even necessarily watching the game,” he wrote. These other areas of the stadium are governed by the business invitee rule, by which a premises owner owes a duty of reasonable care to guard against dangerous conditions it knows about or should have discovered. “Nothing about the game of baseball distinguishes it from other businesses in a way that justifies preferential treatment for stadium owners and operators for injuries that occur outside the stands,” Zazzali said. Zazzali noted that the majority of state courts addressing the issue have adopted the limited-duty rule, but he also cited commentators urging the rule’s elimination, such as a University of California at Los Angeles Law Review article opining that “stadium owners are so insulated from legal responsibility that they are under little pressure to add more protection for fans.” Zazzali concluded, “Although it has drawn criticism, we are not prepared to say that the rule’s time has come and passed. It would be unfair to hold owners and operators liable for injuries to spectators in the stands when the potential danger of fly balls is an inherent, expected, and even desired part of the baseball fan’s experience.” Many fans dive for balls hit toward the stands, some bringing baseball gloves, he noted. The trial judge who dismissed Maisonave’s suit found that the Newark Bears had shouldered the duty of care imposed by Schneider v. American Hockey & Ice Skating Center, Inc., 342 N.J. Super. 527 (2001), which requires sports arena owners to provide screening to stop projectiles from entering the most dangerous locations. Arena owners generally comply with that doctrine by screening the area behind home plate, as exists at Bears and Eagles Stadium. But Zazzali said owners should reassess whether that screening covers the “most dangerous” locations, noting that line drive fouls are usually faster than balls fouled back behind home plate. In a partial dissent, Justice Roberto Rivera-Soto, joined by Justice Jaynee LaVecchia, said the majority was improperly creating “a hybrid duty of care for exactly the peril addressed by the limited duty rule.” He said he would apply “the same duty of care (the limited duty rule) for the same peril (objects leaving the playing field) irrespective of the plaintiff’s location when injured.” One of the defense attorneys in the case gives the majority credit for at least trying to avoid evisceration of the limited-duty rule, which would change the fundamental experience of being a spectator at a ball game. “By crafting the ruling the way they did, I think they wanted to avoid that, but I don’t see that’s going to happen,” says James Horan, of Mautone & Horan in West Orange, the lawyer for the vendor, Gourmet Dining Services. A sports defense lawyer not involved in the case, Alan Goldberger, says every stadium and arena injury will now become a jury issue. “The Supreme Court made it a fact question — where was the spectator and what was his reasonable expectation [of safety] under the circumstances?” says Goldberger, who defends coaches and referees. “If nobody sold any souvenirs and nobody sold any beer and you would just sit and watch, then it would be different,” says Goldberger, of Goldberger & Goldberger in Clifton. “The owner doesn’t want you to sit in your seat all night; they want you to buy a knish or some sushi or a hat.” Minor league teams, which target families with children, typically have more entertainment than the major leagues, says Gil Fried, an attorney who wrote a book on sports facility management. One stadium in Arizona has a swimming pool just beyond the outfield wall, says Fried, an associate professor of management at the University of New Haven. In Japanese baseball stadiums, the entire lower deck of seats is screened, says Fried. Fried hails the New Jersey ruling, noting that even with all the distractions at ballgames here, owners are reluctant to install more than the minimal screening they now provide, and courts have been reluctant to order more protection. “The courts have given them carte blanche, a get-out-of-jail-free card, if they provide some screening,” says Fried. Kevin Kelly, general counsel for the New Jersey Cardinals of Sussex County, predicts his team will be minimally impacted by the ruling because fan injuries from balls are so rare. He typically sees one letter a year from a fan hit by a ball, far fewer than the number of ordinary slip-and-fall complaints. “I’m able to live with it. I know [other team owners] were upset by it, but if you read the decision, it’s not that bad,” says Kelly, of Kelly & Ward in Newton. Horan says that when the case is tried on remand, he will point out that Maisonave knew he could be hit by a ball while standing in line but was not paying attention. “It’s not over by any means. I think we have a very strong defense based on plaintiff’s conduct,” he says. The Bears’ attorney, Timothy Schipske of Rawle & Henderson in Marlton, says his client has not authorized him to speak publicly about the matter. Maisonave’s attorney, Frank DiGiovanni of Kessler, DiGiovanni & Jesuele in Westfield, did not return calls.

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