Daily Blast - February 20, 2020 - Lewis Brisbois Bisgaard & Smith LLP

When It Comes to the Primary Assumption of Risk Doctrine, California Courts Refuse to Play Ball…

California courts continue to precipitously erode the defense of primary assumption of risk and increase sports organizers’ and sponsors’ liability for injuries to spectators. In Summer v. United States Baseball Federation (February 18, 2020, B282414, B285029) __Cal.App.5th__, plaintiff attended the US Baseball’s national team trials at Blair Field located on California State University of Long Beach’s campus where she was struck in the face by a line drive foul ball that caused her serious injury. (Summer, supra, at p. 4.) She was seated in the grandstand, i.e. “spectator bleachers,” which did not have a protective screen or netting. (Ibid.)

Plaintiff sued the City of Long Beach, CSULB and US Baseball, asserting causes of action for

negligence and premises liability. As to defendant US Baseball, plaintiff alleged it sponsored the game at which she was injured and controlled the stadium on that day. She further alleged inadequate protective netting was provided for spectators at Blair Field in the perceived zone of danger behind home plate. The presence of some limited netting at the stadium gave plaintiff a false sense of security that watching the game in a seat beyond this protected area would be safe. Plaintiff further alleged US Baseball and the other defendants were aware of the inadequate nature of the netting, yet failed to provide any warnings regarding the danger of being struck by a batted ball. US Baseball successfully demurred on the grounds the primary assumption of risk barred any liability and being struck by a baseball is an open and obvious danger.

On appeal, Division Seven of the Second Appellate District Court of Appeal (Los Angeles) reversed the order sustaining the demurrer, holding US Baseball “had a duty not only to use due care not to increase the risks to spectators inherent in the game but also to take reasonable measures that would increase safety and minimize those risks without altering the nature of the game.” (Summer, supra, at p. 15-16.) According to the appellate court, installing protective netting down the first- and third-base lines at least to the dugouts would increase safety and minimize risk to fans sitting in those areas without altering the nature of the game. (Ibid.) Thus, plaintiff’s argument she could amend the complaint to include allegations incorporating the views of experienced baseball professionals that extending the protective netting will minimize the inherent risk of being injured by a foul ball without fundamentally changing the game adequately identified an enforceable duty—at least for pleading purposes. (Id. at p. 17.)

Regarding US Baseball’s claim the danger was open and obvious, the appellate court held whether the danger of injury from foul balls in unprotected seating was sufficiently obvious to relieve US Baseball of its duty to warn plaintiff of its existence was a question of fact that could not be resolved on demurrer. (Summer, supra, at p. 19.)