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Woman hit in face by foul ball loses case against Ind. independent league team

By Heather Isringhausen Gvillo | Jul 2, 2014


INDIANAPOLIS (Legal Newsline) - The Indiana Supreme Court held on Friday that an independent league baseball team provided sufficient warnings to a fan who suffered broken bones and permanent loss of vision in one eye after being hit with a foul ball.

"It's hard not be romantic about baseball. But are stadiums and franchises, by virtue of baseball's status as our national pastime, governed not by our standard principles of premises liability but rather entitled to a special limited-duty rule? We think not," Justice Mark S. Massa wrote.

"Nevertheless, we find the defendant in this case is entitled to summary judgment, so we reverse the trial court."

The court ruled in favor of defendant South Shore Baseball, LLC, doing business as Gary SouthShore RailCats and Northwest Sports Venture, reversing the summary judgment denial and remanded the case for further proceedings consistent with the opinion.

Justices Brent E. Dickson, Robert D. Rucker, Steven H. David and Loretta H. Rush concurred.

Plaintiff Juanita DeJesus, a fan of the Gary SouthShore RailCats of the American Association, attended the team's opening day game at their home stadium, the U.S. Steel Yard in Gary, Ind., on May 23, 2009.

DeJesus and her fiancé, James Kerr, sat in a lower section along the first base line, which fell just outside of the protective netting behind home plate.

Prior to the start of the game, an announcer warned the fans to watch out for objects leaving the field. A warning sign was also posted.

Additionally, the back of the ticket warned DeJesus of possible injury, stating, "The ticket holder assumes all risks incident to the game or related events to which this ticket admits holder; including risk of loss, stolen or damaged property and personal injury."

The ticket again cautioned spectators about the danger of being injured by thrown or batter baseballs.

Within the first inning of the game, the second batter hit a pop-up foul ball. DeJesus claims she looked up to see where the ball had gone when it hit her in the face.

She suffered several fractured facial bones and permanent blindness in her left eye as a result of the hit.

DeJesus sued South Shore Baseball and the Steel Yard, accusing the defendants of negligence in failing to make sure the premises was reasonably safe for guests and of failing to design, construct and maintain the ballpark with sufficient protective screening. She also alleged they breached their duty to her because they failed to extend the protective netting far enough along the foul ball line.

South Shore Baseball responded by seeking summary judgment, arguing it fulfilled its duty to warn her of known dangers.

However, DeJesus contended the design of the stadium was not sufficient.

Ultimately, Judge Calvin Hawkins of the Lake Superior Court denied South Shore Baseball's summary judgment motion. The defendant appealed.

The Court of Appeals concluded there was no genuine issue of material fact as to either DeJesus's premises liability claim or her negligence claim.

Therefore, it reversed the trial court's decision and remanded the case with directions to grant South Shore Baseball's summary judgment.

The Supreme Court granted transfer and agreed with the appeals court.

The Indianapolis Indians filed a friend-of-the-court brief and urged the court to adopt the Baseball Rule, which holds that a ballpark operator that "provides screening behind home plate sufficient to meet ordinary demand for protected seating has fulfilled its duty with respect to screening and cannot be subjected to liability for injuries resulting to a spectator by an object leaving the playing field."

Massa declined the use of the Baseball Rule.

"Although we appreciate a well-turned double play," Massa wrote, "we will take this particular pitch."

South Shore Baseball claims the Court of Appeals adopted the Baseball Rule 70 years ago in the Emhardt decision, where the court concluded that baseball fans assume ordinary hazards of the game when choosing a seat in an unscreened portion of the stadium.

However, Massa held that the Baseball Rule is not applicable here due to the Indiana Comparative Fault Act.

"[W]e are not convinced that any sport, even our national pastime, merits its own special rule of liability," he wrote.

Massa explained that both parties agree South Shore Baseball warned DeJesus of the danger of foul balls by printing a warning on her ticket, posting a sign and making an announcement over the loudspeaker. Therefore, the defendant argued she should have recognized the danger and protected herself against it. The court agreed.

As for DeJesus' argument that South Shore Baseball negligently failed to provide sufficient protective netting, Massa wrote that her claim fails as a matter of law because she did not allege an increased risk of harm and cannot establish reliance.

During her deposition, DeJesus admitted that she had seen foul balls enter the stands at the stadium at previous games and that a ball could potentially be hit in her direction.

The court agreed that the evidence shows DeJesus was not relying on the netting to protect her and concluded that summary judgment was proper.

From Legal Newsline: Reach Heather Isringhausen Gvillo at

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