Being Close to the Action Could Mean Taking Home More Than a Souvenir

This past weekend, baseball bats have flown into the stands on at least three separate occasions, in at three different ball parks. The most serious incident was Friday night when a 44-year-old woman was struck in the head by a broken bat at Fenway Park. She was sitting in the second row between home plate and third base when a bat shattered on a groundout. The barrel of the bat sailed into the stands, striking the woman in the forehead. She was treated in the stands before being rushed to Beth Israel Deaconess Medical Center with what police described as life-threatening injuries. She has since been upgraded to fair condition.

While there has always been danger from foul balls, in the last decade or two, shattered bats have caused numerous injuries. This is mainly due to the increased popularity of maple wood bats like the one that shattered and hit the Fenway Park spectator. Players opt for maple bats because maple is stronger than ash, and thus better for hitting the ball long distances. The problem is that maple bats are prone to shattering into large pieces that can fly into the stands, while ash bats usually splinter into shards that remain on the field. Should the Major League Baseball (MLB) Players Association do more, by either finding a way to make maple bats safer or banning them entirely? The MLB can’t simply change equipment rules without agreement of the Players Association, and with players, looking for any possible advantage to improve their performance in the batter’s box banning maple bats is highly unlikely. Would full netting down the foul line be sufficient?

Full netting down the first – and third base lines is standard in Japan and some baseball teams use temporary netting down the foul lines during batting practice. Yet, at most major league parks the netting covers only the backstop behind the catcher, stopping down the lines before each dugout. FOX Sports’ Ken Rosenthal says sources told him that during collective bargaining negotiations in both 2007 and 2012, the MLB requested more protective netting, but owners balked saying it would restrict the view of fans who pay high ticket prices for such premium seats with the chance of snagging a souvenir ball or getting a player’s autograph.

According to a study by Bloomberg News, “Foul ball injuries are becoming more severe because new or renovated ballparks feature seats closer to the field, players are stronger and fans are distracted by loud music, exploding scoreboards and mobile phones. Fans in newer stadiums sit 7 percent closer to fair territory than at older venues.”

On average, there are 250 pitches in a game. To expect fans to watch every pitch is probably unreasonable. Even the most vigilant fan has little chance of reacting in time to avoid injury when ball is traveling at nearly 100 mph or a shattered bat comes sailing into the stands.

While there have been few lawsuits, teams say they warn spectators of foul ball risks on ticket stubs, seat backs and stadium signs. Every Red Sox ticket stub says: “The holder of this ticket voluntarily assumes all risks and danger of property loss and personal injury incidental to the game of baseball and related activities at Fenway Park, including specifically [but not exclusively] those relating to the structure and conditions of Fenway Park, and the danger of being injured by thrown or flying objects including bats and balls.” In addition, Fenway Park displays a dozen signs facing fans in the front row of box seats with the warning: “BE ALERT FOUL BALLS AND BATS HURT.” Teams and stadium owners also rely on the “Baseball Rule,” that shields them from liability as long as netting protects spectators in the most dangerous seats — those immediately behind and around home plate.

For the Fenway Park fan, she may have a legal right to recover damages from the Sox, despite the “Baseball Rule.” Massachusetts abolished assumption of the risk back in 1974. That means that if a landowner is aware of and/or creates an unsafe condition on his property – in this case, if the ballpark was aware of an unsafe condition or unsafe design — one would have the ability to pursue a claim under that theory, even if it’s considered an open and obvious risk that by going to the ball park one might get hit by a foul ball or flying bat.

While the severity of the Fenway Park accident has brought renewed calls for MLB to take greater steps to keep fans safe, barring a fan actually being killed by a bat or ball – it is unlikely that MLB will change its policy regarding protective netting anytime soon. In the past, MLB has discussed the risks to fans at its annual meetings, but has deferred decisions to individual teams. I wonder if MLB is going to wait until someone dies before enhancing safety measures. Why do we always have to wait for a tragedy to change our safety standards? My readers may recall four years ago when a Texas Rangers player was tossing a baseball to a fan and the man flipped over a railing and fell 20 feet onto concrete. The Rangers immediately decided to raise the height of the railings in their ballpark from 33 inches to 42 inches, and MLB implemented a rule prohibiting players from tossing baseballs that far into the stands.

Critics say it’s time to update the “Baseball Rule”, and to make baseball parks safer for fans. When the team owners get together in August for their quarterly meetings, it’s imperative that new Commissioner Rob Manfred tells them that all ballparks must change before the 2016 season. In the meantime, fans should keep their eyes not only on the ball, but on the bat.

Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.