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By Brian R. Socolow
One
of the most important, though often overlooked, aspects of every
professional sporting event is ensuring that the ballpark, arena or stadium
is a safe part of the fan experience. As athletes get bigger and faster, and
sporting events increasingly serve as family entertainment, the legal rules
governing fan safety and the fan experience are undergoing a major shift
that team owners and stadium operators should be aware of as their fans try
to protect themselves from foul balls, errant pucks and even their own
actions.
The Duty of Care and the
"Baseball Rule"
Fans who attend professional sporting events are legally considered invited
guests on another’s property and the arenas, stadiums and ballparks that
fans flock to are subject to many of the same laws governing guests as other
commercial enterprises. In general, a commercial enterprise that invites the
public onto its property has a duty of care towards those who are invited.
This means that a property owner must make sure that the property is
reasonably safe and free from dangerous elements that the owner knows about,
or should know about. If a property owner fails to provide a safe
environment, someone who is injured on the property can sue for negligence.
But courts have long recognized that sporting events
are not like most commercial enterprises because sporting events involve
potentially dangerous activity and equipment. As early as 1913, courts
adopted a specialized negligence standard for baseball parks called the
“limited duty rule.” Courts reasoned that fans who attend baseball games are
aware of the inherent dangers of attending a baseball game, such as being
hit by a foul ball or a thrown bat, and that the fans assume the risk of
being injured. Courts in many states have adopted this rule, and some courts
have expanded it to apply to other sports. Some states, including Illinois
and Colorado, have even passed legislation that essentially provides the
same limited duty for baseball stadium owners.
This duty has been interpreted to require stadiums to
provide some protected seating, and it reduces a stadium owner’s liability
when fans who choose to sit in unprotected areas are injured.
Ticket Warnings and
Disclaimers
In addition to taking advantage of the baseball rule, stadium owners try to
limit their liability through printed warnings on tickets and disclaimers of
liability that remind ticket buyers of the inherent dangers of the event
they are planning on attending, such as flying pucks or batted balls.
There is well-developed case law involving ski resorts
and the travel industry regarding warnings about dangers and disclaimers of
liability printed on tickets. Courts have held that such disclaimers are
enforceable if they are “reasonably communicated” to the ticket buyer. This
usually means that text in very small type would not be considered
reasonably communicated, unless the ticket buyer had been given notice of
the language on the ticket (for example, if a sign near the ticket-buying
window contained the same language and/or told the ticket buyer to read the
warnings and disclaimers on the ticket).
Evolving
Standards of Liability
As baseball, hockey and other sports have evolved over the years, with
bigger, faster players and stadiums offering more in-game entertainment,
courts have refined the limited duty rule in several important ways. Courts
have held that where the inherent dangers of a sport are not known, fans
have not assumed the risk involved in attending a game and can sue a stadium
owner for an injury. For example, more than 50 years ago, one Ohio court
held that the risks of hockey were not common knowledge, s o an injured
spectator did not assume the risk of injury. This argument usually does not
succeed anymore, as most sports have become well known through television.
The fan experience has also changed. Not long ago, the
only excitement at the arena was the game being played. Now, with
professional sports geared toward creating a family entertainment
experience, the action on the court, ice or field isn’t the only activity at
the game. Fan-friendly activities during time-outs, innings or periods are
now commonplace, not to mention the explosion of dining and beverage options
designed to give fans something to do other than follow the game action. The
physical layout of arenas has also changed, with many providing seating
closer to the field of play, and even wider, more open concourses behind
seating areas.
All of these changes have created new legal issues in
fan safety. For example, courts have had to address how mascots affect fan
safety. In one case, a court found that a baseball league whose team mascot
distracted a fan, who was then hit by a fly ball, could be sued for
negligence.
More recently, the limited duty rule has been modified
by creating a two-tier level of care owed by stadium owners. In a case
decided in 2005, a New Jersey court held that the limited duty of care
applies to seats in the stands, but liability for injuries that occur in all
other areas of the stadium should be governed by traditional rules of
negligence. The case involved a fan who was injured while buying a hot dog
from a vendor on the mezzanine of the stadium. The court reasoned that a fan
knows that being in the stands, close to the action on the playing field,
involves a certain amount of risk, but that a fan would not consider buying
a hot dog, far from the activity on the playing field, to be a dangerous
activity.
Searches at
Sporting Events
An issue related to fan safety is security at sporting events. Stadium
owners must walk the fine line between protecting fans and players and not
angering fans with unreasonable security measures. When the Tampa Sports
Authority, the owner of the stadium where the Tampa Bay Buccaneers play,
began requiring pat-downs of everyone attending Buccaneers games, a season
ticket holder filed a lawsuit against the stadium owner. The Tampa Sports
Authority implemented the pat-downs after the NFL and the Buccaneers
demanded them because of concerns of terrorist attacks at large gatherings
such as football games.
Both state and federal court judges held that “mass
suspicionless pat-downs” violated the Florida and U.S. Constitutions. The
federal court judge had concluded that the Tampa Sports Authority was acting
on behalf of the state and that the Fourth Amendment to the U.S.
Constitution prohibits suspicionless searches. A similar case was brought
involving pat-downs at Chicago Bears games. The issues raised by mass
pat-downs and other stadium security measures will likely continue to be the
subject of lawsuits over the next few years.
Dram Shop Laws and
Alcohol Liability
For a segment of the fan population, part of the fan experience involves
beer purchases at the stadium. One of the thornier problems for stadium
owners is who is responsible for preventing fans from getting drunk and
getting injured, or injuring others. About 40 states have “dram shop laws,”
which can subject a property owner to liability in some situations if an
individual gets drunk and inju res himself or someone else.
In some states, these laws are very narrow — for
example, holding a tavern owner liable for serving alcohol to someone who is
under age. In other states, the laws are very broad, allowing a plaintiff
(either the person who was intoxicated or the person who was injured) to sue
a property owner for injuries stemming from someone’s intoxication. Usually,
a plaintiff must be able to show that serving alcohol was a proximate cause
of the injury and that the injury was a reasonably foreseeable consequence
of serving alcohol.
A tragic case involved a fan attending a Giants
football game who consumed large quantities of beer at the game and at two
bars after leaving the stadium, and then caused a car accident that
paralyzed a child. The parents of the child sued the owner of the stadium as
well as the Giants, the NFL, the tavern owners, the car manufacturer, and
the beer concessionaire at Giants Stadium.
The plaintiffs settled with the Giants, the NFL and the
NJ Sports and Exposition Authority, but the concessionaire went to trial,
and a jury handed down a $135 million verdict against the driver and the
stadium owner. However, the following year, a New Jersey appeals court
overturned the jury amount, reinstated the NFL and the Giants as defendants,
and ordered a new trial. The plaintiffs have asked the state supreme court
to review the appellate court’s decision.
Parting Thoughts
Fans are an integral part of every sporting event, and players, team owners
and stadium owners work hard to make sure that fans have an enjoyable and
memorable experience at every sporting event. As part of this process, team
and stadium owners need to continue to think about fan safety, especially in
light of bigger stadiums, interactive half-time events and the changing
security needs of popular events.
fm
Brian R. Socolow
(bsocolow@loeb.com )
is a partner at Loeb & Loeb LLP. He represents organizations in the sports
industry and other businesses.
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