Brian KONKEL published an article in the Chicago Daily Law Bulletin - "Illinois lawsuit may be next chapter in ‘baseball rule.'"

A case recently filed in Cook County Circuit Court further illustrates the importance of providing adequate protections to patrons attending sporting events, and again, raises the question as to what should be deemed reasonable.

In June 2014, Darlene Pollard attended the Asics Junior National Volleyball Championship at Navy Pier to watch her granddaughter participate. While there, she was struck and injured by an errant volleyball.

Pollard filed suit against a number of entities that hosted the tournament. See Pollard v. Midwest Junior Volleyball Inc. (16 L 5613, filed June 6). Spectator injury has been a growing concern in recent years, with sports like baseball and hockey taking additional preventative measures to protect fans, but this case demonstrates that spectator injuries can occur in any context. Facility owners must take note.

Pollard alleges that she was struck by a volleyball that struck some safety netting, but failed to stop the ball’s flight before it struck Pollard.

She alleges that the defendants violated their duty of care in several ways, including failure to provide a safe area for spectators to watch matches, failure to provide adequate safety netting to stop or slow volleyballs, failure to warn spectators that netting was inadequate to protect spectators and seating spectators too close to matches for the netting to be effective.

Ordinarily, Illinois law immunizes land owners when the land is open to the public for recreational use under the Recreational Use of Land and Water Areas Act. 745 ILCS 65/1 et seq. Under the act, a landowner owns no duty to keep the premises safe for entry or give warning of any dangerous condition. Id. at Section 3.

However, the immunity provided under the act does not extend when patrons are charged an entry fee onto the land. Id. Section 6(b).

Here, Pollard paid an entry fee to watch the tournament. This distinguishes her case from Vaughn v. Barton, 402 Ill. App. 3d 1135 (5th Dist. 2010). In Vaughn, the court held that the act provided immunity to the defendant youth baseball association. The court emphasized that even though children paid to participate in the league, the spectators were not charged an entry fee. The participation fee did not amount to a fee for entry onto the land. Id. at 1144-45.

With respect to the entry fee and abolition of immunity for the land owner, Pollard’s case is more similar to Lundquist v. Nickels. 238 Ill. App. 3d 410 (1st Dist. 1992). The court in Lundquist affirmed liability against a landowner who charged a woman a fee to ride a motorcycle on the owner’s land. Id. at 436.

The woman was injured after the motorcycle she was driving went over a drop-off on the premises. Id. at 414. The court held that the property owner owed a duty to exercise ordinary care in repair and maintenance of the property.

The Pollard case is also easily analyzed through the lens of the “baseball rule.” The rule is a judicially created exception to the general principles of land owner liability that limits the liability of facilities owners and operators. See Benejam v. Detroit Tigers Inc., 246 Mich. App. 645 (2001).

The rule developed as the game evolved in the 19th century into the fast-paced game we know today. As baseball grew, the area behind home plate was commonly known as the “slaughter pen” due to the frequency of fan injuries from batted balls.

While the rule varies state by state, the general rule is that facilities can fulfill the limited duty requirement by providing screened seating in the grandstand and offering patrons the opportunity to occupy a protected seat.

In Illinois, the baseball rule is codified by the Baseball Facility Liability Act. 745 ILCS 38/1 et seq. Under the statute, facilities are immune unless the screen or backstop is defective in a manner other than width or height because of the negligence of the owner or operator of the facility. Id. at Section 10.

While the Pollard case involves volleyball, not baseball, her allegations are consistent with imposing liability under the act, because she alleges that the netting provided was inadequate. Whether the netting was defective because of the negligence of the defendants will likely be a key question in the case.

The defendants in Pollard are likely to raise an assumption-of-risk defense as well, but the defense may not apply here. The assumption-of-risk defense was raised by defendants in Pickel v. Springfield Stallions Inc., a case involving a spectator injury at an arena football game. 393 Ill. App. 3d 1063 (4th Dist. 2010). The court in Pickel held that primary assumption of risk did not apply, as this was akin to saying that the defendants owed no duty to the plaintiff, who was merely a spectator, not a participant. Id. at 1076.

The Pollard case again raises the question as to the reasonableness of spectator protections. As the baseball rule suggests, if the protective netting was defective, defendants are likely to be held liable. On the other hand, what if the netting was simply inadequate under the circumstances? There seems to be a growing consensus in the sports world that the bare minimum is not enough when it comes to spectator protections.

In response to the growing concern over fan safety, Major League Baseball issued a recommendation that teams extend netting 70 feet from home plate, to at least the inner edges of the dugouts.

The NHL extended netting above the glass behind the nets following the 2002 death of a 13-year-old fan struck by an errant puck during a Columbus Blue Jackets game.

As professional leagues take additional measures, amateur and recreational facility operators will be pressured to do the same. The Pollard case suggests that reasonableness of protective measures will continue to come under attack.

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