Baseball improved fan safety, but in court, it's teams that are protected

But for Andy Zlotnick, a Manhattan man grievously injured by a foul ball at Yankee Stadium on Aug. 25, 2011, the fight is far from over.

That rainy afternoon, a screaming line drive hit by the Oakland Athletics’ Hideki Matsui whistled through a cluster of umbrellas and struck Zlotnick’s face, crushing his left eye socket, fracturing his jaw and leaving him with permanently impaired vision. Since then, he has been waging a quixotic battle against what has been a virtually unbeatable foe: the so-called “baseball rule,” which for more than a century has shielded clubs from liability if a fan is injured by a thrown or batted ball or a flying bat.

The disclaimer on the back of every ticket to every Major League Baseball game has, since 1913, made it all but impossible for fans injured at a ballgame to sue either the club or the league.

The disclaimer says: “The holder assumes all risk and danger inherent to the game of Baseball, whether occurring prior to, during, or subsequent to, the actual playing of the game, including specifically (but not exclusively) the danger of being injured by thrown bats, fragments thereof, and thrown or batted balls, and agrees that the (name of club) are not liable for injuries resulting from such injuries.”

Lawyers call the disclaimer a primary assumption of risk. In plain English, it means if you get hurt at a baseball game, it is no one’s fault but your own.

That has not stopped Zlotnick, despite two facial surgeries and several hundred thousands of dollars in medical and legal expenses.

His original lawsuit against the New York Yankees and MLB was dismissed in 2015, and last October, an appellate court rejected his arguments to have that judgment overturned. In fact, the New York state Supreme Court even ordered Zlotnick to pay the league and the Yankees $745 in court costs, which he has refused to pay.

The next, and possibly final step, is the state Court of Appeals in Albany, which has received arguments from both sides and is expected to rule soon on whether Zlotnick’s appeal can proceed.

“For me, it’s not about the money,” he said. “It’s about seeking justice and making sure the next guy who sits in my seat doesn’t get hurt like I did. I have pain every waking moment of every day. I can’t heal the wound, but I can try to help others not have to suffer the way I did.”

Three fans, including a 2-year-old, suffered serious injuries from foul balls or flying bats at Yankee Stadium last season. The announcement that the Yankees — after months of stalling — would extend their netting along the field-level seats to the point in the outfield where they angle back out of harm’s way was satisfying to Zlotnick. He was sitting in Section 12 that day in 2011 and would have been protected by the new netting.

The fact that every major league club has said it will have extended netting in time for opening day would appear to have given closure to Zlotnick’s fight.

But in his mind, there is still one more hurdle to be cleared: a century of legal precedent that has made it nearly impossible for fans injured at a ballgame to reap any financial compensation from teams or the league, not even to recoup medical expenses.

The precedent was set 105 years ago, when a Missouri appellate court ruled against the claim of one S.J. Crane, who suffered a broken rib and internal injuries after being hit by a foul ball during a game involving the Kansas City Blues of the American Association.

The court ruled that since Crane had chosen a seat in an unprotected section down the third base line, he “assumed the ordinary risks of such position.” His request for an award of $100 to cover his medical expenses was denied. The ruling stated that as long as a team provided protective netting behind home plate, it had no further obligation to any spectators who chose to sit in an unprotected seat.

That ruling has protected Major League Baseball teams, which had not made many changes in the protective barriers between its game and its fans until the groundswell of protest that began when a young woman was badly injured by a broken bat that flew into the stands at Fenway Park in June 2015.

Five months later, Manfred issued the recommendation that teams extend the netting 70 feet in each direction, from the area directly behind home plate to the near end of both dugouts.

Only the Texas Rangers, the Washington Nationals, the Kansas City Royals and the Minnesota Twins extended their netting before the 2016 season. And by the midway point of the 2017 season, just six more teams, including the New York Mets, joined them.

The consensus among teams was that more netting, which would be placed in front of the highest-priced tickets in the park, might alienate some fans.

But the incidents at Yankee Stadium last year, including a 2-year-old girl suffering facial fractures, seemed to galvanize public support for extended netting. A poll conducted by HBO Real Sports and Marist University in October found that 60 percent of respondents were in favor of extending netting, up from 54 percent the previous year; 76 percent said they did not think sitting behind a net would detract from their experience of watching the game.

By the end of the 2017 season, all but a handful of teams had announced plans to extend their netting. The Yankees announced their intentions on the last day of the season, with details revealed in January. Through a team spokesman, Yankees executives declined to be interviewed for this article.

While more fans are now protected by netting in the ballpark, the teams and the league continue to be protected by the “baseball rule.”

That is why Zlotnick has been unable to get the Yankees to reimburse him for his out-of-pocket medical expenses arising from the surgery to repair his injuries. Or, since an initial conversation with team president Randy Levine back in 2011, even to get them to return his phone calls.

It is why the family of the 2-year-old girl who suffered a broken nose, an orbital fracture and bleeding on the brain on Sept. 20 will face an uphill battle if they ever decide to sue the Yankees.

And it is why, of all the thousands of spectators who suffer serious injuries from flying objects — a 2014 statistical analysis by Bloomberg News determined that approximately 1,750 fans per year are injured at major league games — only a handful have successfully sued a baseball team.

In 2010, the Georgia Court of Appeals allowed a man whose 6-year-old daughter’s skull was fractured by a foul ball at Turner Field to sue the Atlanta Braves. The suit was settled in April.

In 2014, the Supreme Court of Missouri overturned the dismissal of a lawsuit against the Kansas City Royals by a spectator who was hit in the eye by a hot dog tossed into the stands by the team mascot. Such injury, the court ruled, “is not one of the risks inherent in watching the Royals” at Kauffman Stadium.

That same year, the Indiana Supreme Court refused to enforce the baseball rule in a woman’s case against the South Shore RailCats, a minor-league team in Gary, Indiana, saying it was “not convinced that any sport, even our national pastime, merits its own rule of liability.” But the court dismissed her suit on the grounds that the club had satisfied its obligation to provide protective screening. (The Idaho Supreme Court also declined to use the baseball rule in a similar case in 2013.)

It is unclear whether those rulings are an indication of shifting legal attitudes toward the authority of the baseball rule.

Michael McCann, an associate dean of the University of New Hampshire School of Law who specializes in sports law, acknowledged there was not a large enough sample size, but said, “Logically, courts are beginning to think critically about the baseball rule and understanding that it leads to inequities in some cases. It’s simple and straightforward, pretty black and white, but in law school we discourage that kind of thinking. And in some cases, there are mitigating circumstances.”

Zlotnick and Jay Loos, who lost the vision in his left eye after being hit by a line drive at Wrigley Field last August, are continuing to pursue their lawsuits.

In February, an Illinois court dismissed Loos’ lawsuit against the Chicago Cubs, but ruled that his lawsuit against Major League Baseball could proceed. Loos is seeking damages in excess of $50,000.

Zlotnick and his lawyer, Brian Isaac, are challenging the baseball rule as outdated.

“This particular rule augurs back to when we didn’t have Jumbotrons, you didn’t have free Wi-Fi in the ballparks, you didn’t have fans with smartphones and you didn’t have athletes who were 6-7 and 250 pounds who were hitting balls with exit velocities of 130 miles per hour,” Isaac said. “The danger has to be assessed against the modern realities.”

Over the past three years, fan safety at baseball games has greatly improved. But, legally, no one at the ballpark is protected better than the owners of the home team.

This article originally appeared in The New York Times.

Baseball improved fan safety, but in court, it's teams that are protected

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