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Vol. 7, Iss. 2
March 7, 2018

Oh, Canada! Toronto Court’s Unique Foul Ball Injury Case

Regular readers of this publication (and I thank you for that) know that I have a soft spot for cases involving fans seeking recovery for injury sustained by being hit by a foul ball (or a tossed-into-the-stands hot dog) at a baseball game. The fans virtually always lose on account of the so-called court-created “baseball rule.” The baseball rule generally provides that a baseball stadium operator is not liable for a foul ball injury as long as it screens the most dangerous part of the stadium and provides screened seats to as many spectators as may reasonably be expected to request them.

But despite the challenge of overcoming the baseball rule, many injured fans still try. The cases generally involve an effort to find an exception, of some sort, to the rule.

My thanks to CO reader, and Toronto coverage lawyer Michael Teitelbaum, of Hughes Amys, LLP (author of “Ontario Insurance Law & Commentary” (2018)) for sending me a copy of the Ontario Superior Court of Justice’s late January decision in Legacy v. The Corporation of the City of Thunder Bay. It is a baseball injury case, but unlike any I’ve ever seen.

Lorrinda Maureena Anne Legacy was driving past Port Arthur Stadium, in Thunder Bay, Ontario, when her driver’s side window shattered. An object hit her head. She pulled over and discovered a baseball on the floor of her car. The baseball had been hit from inside the stadium during batting practice. [I have dreamed of catching a foul ball at a baseball game. I’d even take it this way.]

Ms. Legacy filed suit. But here’s the rub. The stadium was the home ballpark for the Thunder Bay Border Cats. However, the ball had been hit by a player on the visiting team – the Deluth Huskies. The Huskies argument was that a visiting baseball team cannot be liable for injury caused by a baseball being hit out of the home team’s stadium. The opinion does not say this specifically, but, surely, the argument is that a visiting team has no duty to maintain or operate the stadium to keep fans or someone like Ms. Legacy safe. The Huskies cited a House of Lords decision stating that “playing baseball is not a tort.”

I’ve never seen this “visiting team” issue raised in a foul ball injury case. Maybe because it’s so obvious that the visitors are not liable, even if a visiting player hits the foul ball that causes injury. And maybe that will be the outcome here. But the court concluded that it was premature to make that decision. The City (the owner of the stadium) and the Huskies had not yet delivered statements of defence (Canadian spelling – and my spell check gives me the squiggly red line to tell me I’m an idiot).

The court noted a couple of peculiarities about the case that could serve as basis to find liability on the visiting Huskies. First, the protecting netting had large gaps or holes in it. Second, the visiting Huskies players were allegedly hitting balls from third base and not home plate. Based on these circumstances, the court concluded as follows:

“If the Duluth Huskies players knew that they were hitting baseballs out of the stadium onto a busy city street because, for example, the protective netting which was obviously there to prevent such a mishap, was, to their knowledge, rendered ineffective because of gaps or holes, could they be liable?

If the Duluth Huskies were hitting balls out of the park from the vicinity of third-base, rather than home plate, rendering the stadium safety design features ineffective because of their choice of batting position, could they be liable?

These scenarios are within the allegations of negligence pleaded by the plaintiff and may be sufficient to trigger a duty of care.”

The court did not discuss the baseball rule or something similar. I do not know if it’s as difficult for a plaintiff to prevail in a foul ball injury case in Canada as it is in the U.S.

Legacy is an usual case because it involves a claim against a visiting team. And even if that should be an easy no-liability situation, it may be that, with facts like these, liability can be found on the visitors.

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