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The Philadelphia Phillies owe no duty to a fan injured by a baseball thrown into the stands at the end of an inning by outfielder Marlon Byrd, according to a split three-judge Superior Court panel. It didn’t matter that the ball was thrown intentionally into the stands, the court ruled, upholding a lower court’s decision to throw out the fan’s negligence suit against the Phillies and Byrd over his injuries. In Loughran v. The Phillies, the 2-1 panel led by Senior Judge Peter Paul Olszewski said getting hit by a ball after a play has stopped is the same risk that a baseball game attendee assumes when he is hit by a ball that is in play. Appellant Jeremy Loughran had argued that throwing the ball into the stands is not common so he couldn’t have assumed the risk when he entered the stadium of being hit by such a ball — an argument Olszewski rejected. Loughran had argued that in order for the no-duty rule to apply, throwing a ball into the stands would have to be considered a “common, frequent or expected part of the game.” Olszewski disagreed. “When determining what is [a] ‘customary’ part of the game, it is our opinion that we cannot be limited to the rigid standards of the Major League Baseball rulebook; we must instead consider the actual everyday goings on that occur both on and off the baseball diamond,” Olszewski said. “[W]e must consider as ‘customary’ those activities that although not specifically sanctioned by baseball authorities, have become as integral a part of attending a game as hot dogs, cracker jack and seventh inning stretches.” Olszewski compared the scenario to fans arriving early to watch batting practice in hopes of catching a souvenir ball. “Although not technically part of the game of baseball, those activities have become inextricably intertwined with a fan’s baseball experience, and must be considered a customary part of the game,” he said. “Similarly, both outfielders and infielders routinely toss caught balls to fans at the end of an inning.” The court also dismissed Loughran’s argument that he did not see any balls being thrown into the stands by players during the game. Olszewski said that testimony at the trial court, before Judge Arnold L. New, showed that the similar instances happened at least 20 times during the game Loughran attended. The case was based on the state’s “no duty rule,” which the court said applies to “‘common, expected and frequent’ risks of the game.” In his dissent, Judge John T. Bender said there was a clear difference between a thrown ball and one hit by a batter or thrown while the game is in play. “I am unwilling to accept the premise that simply because the custom is commonplace, the commonality of the custom provides blanket immunity from the way it is carried out.” The majority and the dissent both relied on the state Supreme Court’s 1978 decision Jones v. Three Rivers Management Corp. but drew from different parts of the case. “‘Only when the plaintiff introduces adequate evidence that the amusement facility in which he was injured deviated in some relevant respect from established custom will it be proper for an ‘inherent-risk’ case to go to the jury,’” Olszewski said, quoting Jones. Loughran’s attorney, solo practitioner Steven E. Wolfe, said his client’s injury was caused by an event that could not have been considered an inherent risk. Bender agreed with Loughran’s argument and said Jones made a distinction between situations in which a spectator could be struck by a batted ball. He said, “[I]n the minds of the Jones court, not all batted balls were to be regarded in the same manner, and it was necessary to consider the how, where and when of being struck by the batted ball before declaring that the operator owed no duty to protect the patron from that occurrence.” Bender said Jones also applied the “no duty” rule to when the risk involved is necessary to the activity. He said Byrd’s throwing of the ball into the stands was not necessary to the game. Wolfe said this was “an instance that is outside the scope of what a baseball game is and what a baseball game is intended to be.” According to the opinion, Loughran attended a Phillies game in July 2003. Byrd, a centerfielder for the Phillies, caught a fly ball for the last out of the top half of the seventh inning. He then began walking toward the dugout, according to Wolfe. Olszewski said that Byrd then threw the ball into the stands, injuring Loughran. Loughran was treated twice at Veterans Stadium Infirmary and then at St. Mary’s Medical Center. The opinion said his immediate injuries included bleeding around his left eye, a concussion, facial contusions and abrasions. Subsequent injuries included severe headaches, vomiting, confusion, incoherence, hallucination and depression, according to the opinion. Loughran filed a negligence action against the Phillies and Byrd, and the trial court awarded summary judgment to the team and its player, Olszewski said. The Superior Court then affirmed the lower court. Olszewski was joined by Judge John L. Musmanno. “Both Judge New at the trial level and the Superior Court unduly expanded the no duty rule,” Wolfe said about the opinion. Wolfe said he will most likely appeal the decision to the state Supreme Court. Robert J. Foster of Reger Rizzo Kavluich & Darnall in King of Prussia, Pa., represented the Phillies and Byrd. He was not available Tuesday for comment.

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