MLB Fans Swing ‘n Miss on Safety Netting Suit in Ninth Circuit

The Ninth Circuit Court of Appeals concluded that Gail Payne and Stephanie Smith lack standing to seek an order requiring more safety netting and other protective measures at all Major League Baseball ballparks, pointing to the League’s evidence indicating that the risk of injury is very slim. The Ninth Circuit refused to reinstate the lawsuit, affirming U.S. District Judge Yvonne Gonzalez Rogers’ ruling in November 2016 that tossed out the suit. Judge Rogers had agreed that injuries to baseball spectators, especially children, are more severe now than they were in the past, but said an individual fan’s statistical risk was too low to sustain a lawsuit based on the “certainly impending injury” standard.

The two fans wanted safety nets extended from behind home plate to both foul poles and proposed a class action in July 2015 accusing MLB of failing to protect spectators at ballparks. Out-of-state teams were trimmed from the suit in April 2016, leaving claims that the L.A. Dodgers and Oakland Athletics should mandate the netting changes. The fans appealed in March, arguing that Judge Rogers had focused too narrowly on statistics.

“MLB’s victory just means it has sentenced its fans to countless more skull fractures, closed head injuries, and broken jaws. Eventually, a fan will be killed by a foul ball or broken bat and then MLB will immediately declare surprise, remorse and order all nettings extended,” stated Robert C. Hilliard, who represents the fans.

Payne and Smith argued that fans are in greater danger from baseballs and broken bats today than they were in the past, because pitchers throw harder and today’s bats splinter more easily. Payne claimed she has to duck foul balls at every game she attends. Judge Rogers had pointed out that, while Payne sought an injunction to prevent an injury she might suffer in the future, she has never been injured at a game. Even if she does attend future games, the MLB’s evidence showed that her risk of being injured is .0027 percent per game. The Ninth Circuit panel agreed, ruling that Payne’s “general anxiety” of “hypothetical future harm” could not sustain the suit, and that Payne could address her fears by sitting in a different section.

Smith, in contrast, was injured during a June 2015 L.A. Dodgers game, and suffered a partially collapsed lung. However the panel held she also did not establish standing. Smith testified that she had no intention of attending another MLB game during the 2016 or 2017 seasons, meaning there was no imminent risk of her being injured, and even if she did attend a game, the risk of injury is far below one percent.

The issue has not gone unnoticed in pro-baseball circles. Major League Baseball currently requires teams to provide netting from home plate to the dugouts. However, ten teams have put up additional netting, and three more said they would do so after a foul ball struck a 2-year-old girl in the face at Yankee Stadium in September.

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