¶ 1 This is an appeal from an order granting summary judgment in favor of appellees.
¶ 2 On July 5, 2003, Jeremy Loughran (appellant) attended a baseball game between the Philadelphia Phillies (Phillies) and the Florida Marlins. Appellant's
¶ 3 Appellant filed the current negligence action against Byrd and the Phillies on March 8, 2004 and on March 8, 2005, the trial court granted summary judgment in favor of appellees, holding that "the applicable law clearly states that recovery is not granted to those who voluntarily expose themselves to risks by participating in or viewing an activity." Trial Court Opinion, 5/3/2005, at 1. This timely appeal follows.
¶ 4 Our standard of review of an order granting or denying a motion for summary judgment is well established:
Sackett v. Nationwide Mut. Ins. Co., 880 A.2d 1243 (Pa.Super.2005).
¶ 5 On appeal, appellant lists five separate "questions involved." See Appellant's Brief, at 4. For purposes of our review, however, they can be combined into one issue: whether the trial court's application of the "no duty" rule to this case was proper.
¶ 6 We must first note that appellant's claim was brought under a negligence theory. It is axiomatic to say that in order to succeed on a negligence claim, the four basic elements of duty, breach, causation, and damages must be established. Appellees moved for summary judgment on the grounds that "as a matter of law, [appellees] did not owe a duty to [appellant] to protect him from the risk of being struck by a thrown baseball while sitting in the stands, [and that] [appellant] assumed the risk of being struck by a thrown ball by sitting in an area where he knew balls could be thrown." Defendant's Motion for Summary Judgment, 1/4/2005, at ¶¶ 22, 23 (Docket Entry 24).
¶ 8 We think it necessary to first examine the nature of the "no duty" rule and specifically, its application on the baseball diamond. We have previously stated that "[t]he operator of a place of amusement is `not an insurer of his patrons,' and therefore, patrons will only be able to recover for injuries caused by the operator's failure to exercise `reasonable care in the construction, maintenance, and management of the facility.'" Romeo v. The Pittsburgh Associates, 787 A.2d 1027 (Pa.Super.2001) (quoting Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978)). The "no duty" rule applies to bar a plaintiff's claims for injuries suffered as a result of common, frequent and expected risks inherent during the activity in question. Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978). "Only when the plaintiff introduces adequate evidence that the amusement facility in which he was injured deviated in some relevant respect from established custom will it be proper for an `inherent-risk' case to go to the jury." Id. at 550. It can be said that the "no duty" rule has evolved into a modified version of the assumption of the risk doctrine, which has been largely abolished in Pennsylvania. Romeo v. The Pittsburgh Associates, 787 A.2d 1027 (Pa.Super.2001).
¶ 9 Appellant first challenges the trial court's finding that his being hit by a ball thrown by the centerfielder is an inherent risk. Appellant argues that his injuries were not the result of "a throw that could in any way be construed as a common, frequent or expected part of the game." Appellant's Brief, at 13. In support of this argument, appellant offers that "he had never seen an outfielder throw a ball into the seats; that he had never seen a player throw a ball overhand into the seats from any location on the field; and that he was completely surprised by Byrd's throw into the stands, and was not expecting an outfielder to throw a ball into the crowded outfield seats after play had ended." Id. at 13.
¶ 10 Appellant correctly surmises that the application of the "no duty" rule hinges on whether the activity in question is a "common, frequent, or expected part of the game." He argues that because the third out had been made, the inning was over, and therefore Byrd's throw can neither be expected, nor even part of the game. When determining what is "customary" part of the game, it is our opinion that we cannot be limited to the rigid standards of the Major League Baseball rule book; we must instead consider the actual everyday goings on that occur both on and off the baseball diamond; we must consider as "customary" those activities that although not specifically sanctioned by baseball authorities, have become as integral a part of attending a game as hot dogs, cracker jack, and seventh inning stretches. Fans routinely arrive early for batting practice in hopes of retrieving an errant baseball as a souvenir, and fans routinely clamor to retrieve balls landing in the stands via home runs or foul balls.
¶ 11 We note that during the particular game in question, there were at least twenty (20) occasions of a ball entering the stands. Defendant's Motion for Summary Judgment, 1/4/2005, at ¶ 13 (Docket Entry 24). At least two of those balls were thrown to fans near appellant by players. Id. at ¶¶ 13(f), 13(i). Appellant admits to having attended numerous baseball games in the past, and to having witnessed balls tossed into the stands on previous occasions. N.T., 10/29/2004, Oral Deposition of Jeremy Loughran, at 57-60. Regardless of appellant's current contention that he did not directly see the balls thrown into the stands by the players, our courts have held that even a first-time spectator at a baseball game is imputed with the common or "neighborhood knowledge" of the risks of the game. Schentzel v. Philadelphia National League Club, 96 A.2d at 186.
¶ 12 Appellant also argues that if the trial court's decision stands, baseball fans could be said to have assumed the risk of injuries from "a resin bag, baseball glove, baseball bat, spiked shoe, catcher's mask, or some other object that may be intentionally thrown into the stands by a player." Appellant's Brief, at 14. We cannot agree with appellant's contention that the analysis of a spiked shoe or catcher's mask thrown into the stands would be the same as the current situation, as players are not regularly booed for failing to throw their shoes or equipment into the stands, nor are fans routinely seen clamoring or jockeying for position to retrieve a thrown shoe or mask. Likewise, as previously stated, the "no duty" rule applies only to "common, expected, and frequent" risks of the game; players do not commonly throw their spiked shoes into the stands following an out.
¶ 13 We agree with the trial court that the injuries received by appellant from actions taken by Phillies centerfielder Byrd constituted an inherent risk of the game. Countless Pennsylvania court cases have held that a spectator at a baseball game assumes the risk of being hit by batted balls, wildly thrown balls, foul balls, and in some cases bats. See Schentzel v. Philadelphia National League Club, 173 Pa.Super. 179, 96 A.2d 181 (1953); Iervolino v. Pittsburgh Athletic Co., 212 Pa.Super. 330, 243 A.2d 490 (1968). See also, Dalton v. Jones, et al., 260 Ga.App. 791, 581 S.E.2d 360 (2003) (holding that the doctrine of assumption of risk precluded recovery from the Atlanta Braves and their centerfielder when the centerfielder tossed a ball to fans in between innings, resulting in a permanent eye injury to a spectator). Even a casual baseball spectator would concede it was not uncommon for a player to toss a memento from the game to nearby fans. While appellant makes much of the manner in which the ball was thrown,
¶ 14 Because we find that the trial court did not err in applying the "no duty" rule to the case at bar, we must affirm its grant of summary judgment.
¶ 15 Order AFFIRMED.
¶ 16 Dissenting Opinion by BENDER, J.
BENDER, J., dissenting:
¶ 1 I respectfully dissent. In the present case, on July 5, 2003, Appellant attended a Philadelphia Phillies game and was seated in the outfield stands. With two outs in the Florida Marlins seventh inning, a ball was hit to the Phillies' centerfielder, Marlon Byrd. Byrd caught the fly ball that ended the Marlins inning and, as one would expect after recording the final out of an inning, Byrd began running off the field toward the Phillies' dugout. However, after Byrd took a few strides he turned and threw the ball, overhand, into the stands where it struck a spectator in the face and, allegedly caused considerable injury. The evidence is clear that the ball was not thrown into the stands accidentally while in the course of game play. Had it been, I would readily join the Majority's disposition. But, as I see it, and as I believe the law sees it, there is a difference between a ball that enters the stands on an errant throw during game play and one thrown into the stands gratuitously and outside the parameters of game play.
¶ 2 As the Majority notes, the assumption of the risk doctrine has been largely abolished in Pennsylvania. However, to be more precise, one might assert that the assumption of the risk doctrine was finally abolished, at least in most part, in the case of Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339 (2000). Prior to that time, appellate courts in the Commonwealth had considered the premise that the passage of the Comparative Negligence Act
¶ 3 A year after Hughes announced that the doctrine of assumption of the risk had been abolished as a common law defense, a panel of this Court essentially resurrected the essence of the assumption of the risk doctrine, at least as it applied to professional
¶ 4 In Romeo, a panel of this Court concluded that a woman who had been struck by a batted ball at a Pittsburgh Pirates game had, as a matter of law and not as a matter of a failure of proof, no cause of action against the Pittsburgh Pirates Baseball Club. In reaching the conclusion that the plaintiff had not stated a cause of action upon which recovery could be granted, the panel concluded that the Pirates owed no duty to protect the plaintiff from the risk of being struck by a batted ball. On its face, this statement seemingly differed from the conclusion that the plaintiff, in going to the game, had "assumed the risk" of being struck by a batted ball. However, the panel's discussion of the law supporting this decision invoked many terms familiar to readers of assumption of the risk cases. Indeed, the panel cited a passage from Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983), in which Chief Justice Roberts noted that the assumption of the risk doctrine is merely another way of stating the fact that the possessor/operator owes no duty to an invitee.
¶ 6 If a baseball player owed a duty of care to ensure that a thrown or batted ball would not strike a patron, he might hesitate in attempting to throw out a runner trying to stretch a double into a triple for fear of the ball "sailing" on him and striking a patron. Similarly, a player might think twice about attempting to hit an inside pitch for fear of pulling it into the stands and smacking a spectator, and a batter might look at a called strike on the outside corner as opposed to "protecting the plate" because he knows from experience that hitting a pitch on the outside corner can lead to a screaming foul in the direction he is facing. Of course, it would be ridiculous to impose such a duty of care upon a player participating in a sporting event. The game of baseball would be forever changed. Similarly, if a duty was imposed upon the baseball club to protect those patrons seated in all portions of the stands from a thrown or batted ball, some form of netting or barrier would need to be erected to protect fans, which would diminish the view of all patrons, even where the risk of getting struck by a ball was remote.
¶ 7 But Appellant was not struck by a ball thrown in the course of game play. Appellant was struck by a ball thrown into the stands after play had ended for the half-inning. The Majority seemingly finds no distinction between a ball thrown in play and one thrown outside of play. Apparently, in the Majority's view, a thrown ball is a thrown ball. Unlike the Majority, I believe there is a distinction between a ball thrown within the confines of the game and one thrown for a purely gratuitous purpose. I also believe the law recognizes this distinction. In fact, Jones, the case Romeo so heavily relied upon, itself made a distinction between the circumstances under which a fan was struck by a batted ball.
¶ 9 In discussing the "no-duty" rule, the Court stated:
Jones, 394 A.2d at 551. The Court ultimately concluded that the answer to this second question was "no." Thus, in the minds of the Jones Court, not all batted balls were to be regarded in the same manner, and it was necessary to consider the how, where and when of being struck by the batted ball before declaring that the operator owed no duty to protect the patron from that occurrence.
¶ 10 A careful reading of Jones, reveals that the no-duty rule applies not just when one's injury is caused by a risk inherent to the activity, but also when the risk in question is necessary to the activity. This point is illustrated when the Jones Court stated: "[m]ovies must be seen in a darkened room, roller coasters must accelerate and decelerate rapidly and players will bat balls into the grandstand." Id. at 550-51. However, as Jones put it, "even in a `place of amusement' not every risk is reasonably expected. The rationale behind the rule that the standard of reasonable care does not impose a duty to protect from risks associated with baseball, naturally limits its application to those injuries incurred as a result of risks any baseball spectator must and will be held to anticipate." Id, at 551. The qualification of the above sentence with the words "will be held to anticipate" reflects that not all risks associated with an activity will be immunized from liability. Reading both passages together, it can be seen that the risks that will be immunized are those that are not only inherent to the activity, but those necessary to preserve the essential nature of the activity.
¶ 11 I do not doubt that Marlon Byrd threw the ball that hit Appellant without malicious intent. It also appears to be true that there is a custom of tossing a ball into a stand as a means of providing a souvenir to fans. I am willing to accept that this custom is in place. However, I
¶ 12 First, the Majority's reliance upon common practice to legitimize a finding of no duty contradicts a statement made in Jones. There the court provided the following caution: "The question of whether a risk is properly to be anticipated cannot be answered by looking to whether exposure to such risks is customary in the trade. This would permit defendant/stadium operators to avoid liability for universally prevalent negligent conditions, an undesirable result." Id. at 551 n. 6. Thus, the mere fact that baseball players frequently toss balls into the stands does not dictate the conclusion that a patron will be deemed to have assumed the risk of being struck by a ball purposely thrown into the stands or that no duty exists as to the manner in which the custom is carried out.
¶ 13 Secondly, imposing a duty of care into the practice of gratuitously providing a souvenir baseball to a lucky fan in no way detracts from or endangers the game being played on the field. As such, it is not necessary for the preservation of the activity to immunize the operator against the risk in question. Referring again to the quote from Jones, if movie houses are made to lighten the theatres so that no one trips, the movie-going experience would be greatly diminished if not destroyed. If amusement parks are made to design roller coasters so as to eliminate all jerkiness and smooth out all changes in direction they would no longer be capable of being classified as "thrill rides" and the word "amusement" might be deleted from the term "amusement parks." But if baseball players, and their employers, are charged with exercising reasonable care in the practice of providing souvenir balls to patrons, the "Fall Classic" will remain a classic sporting contest and all those regular season and playoff games preceding it would still be played in a manner consistent with Abner Doubleday's original intent.
¶ 14 It is important to dissect the Majority's exact holding to understand the ramifications of that holding. The Majority does not hold that a duty existed to exercise ordinary caution in the practice of tossing a souvenir ball into the stands at the end of an inning, but there was a lack of evidence of a breach of that duty. The Majority holds that because baseballs routinely fly into the stands, and because it could be considered a custom for ball players to gratuitously toss a ball into the stands after actual game play has ended, The Phillies baseball club and Marlon Byrd owed "no duty" to a spectator in the stands with respect to the practice of tossing a ball into the stands. What this means is that now, absent an actual positive intent to injure, the practice of throwing a ball into the stands can be undertaken with complete immunity and in complete disregard for prudence. Now, neither context nor the actual manner in which a ball is thrown into the stands is material as no duty is owed to a spectator with respect to this practice. Extending the Majority's holding to a logical end, a baseball player can, from a mere few feet
¶ 15 Additionally, given the Majority's rationale that the practice of providing souvenirs to fans invokes no duty because the practice is commonplace at games, where would this rationale end? Another common practice at ball games is the hotdog or t-shirt launch. Both promotions/practices involve providing lucky fans with either a souvenir or a treat. The hotdog launch typically involves loading a foil wrapped hotdog into a cannon-like propulsion device and launching it to waiting fans located in the stands. The t-shirt toss can be accomplished the same way, but is sometimes accomplished by employing a large slingshot. Given the Majority's analysis, because these entertaining sideshows to the game are common place, when a spectator attends a game he assumes the risk of being struck by a hotdog or t-shirt propelled from one of these devices. Also, because these events could be deemed to have become inextricably intertwined with the baseball experience, the baseball clubs and those executing the giveaways have no duty to spectators in conducting them. Of course, this would mean that if one of those executing the hotdog launch imprudently aimed at spectators seated a couple of rows into the stands they would be immune if a spectator lost an eye after getting hit nearly point blank by a foil wrapped hotdog.
¶ 16 In my view, since the act of tossing a ball to fans as a souvenir is extraneous to the game and not necessary to the playing of the game, a spectator does not "assume the risk" of being struck by a ball entering the stands for this purpose, nor is there any valid reason in law or policy to extend the immunity of the "no duty" rule to this practice. Rather, if a baseball player wants to go beyond the confines of the game and provide a gratuitous souvenir to a fan, he should be charged with the obligation of doing it in a reasonably safe and prudent manner. Here, there is certainly evidence from which a factfinder might conclude that the manner in which Byrd threw the ball into the stands was imprudent.
Id. at 125.
Hughes, 762 A.2d at 341. It appears clear that the Restatement regards the facts of Romeo to fall within the assumption of the risk doctrine which Hughes indicates has been abolished in Pennsylvania, save for statutory exceptions. Hughes continued on with a Jones no-duty analysis because the legislature had specifically reserved assumption of the risk as to ski slope operators. Thus, there is no basis for reading the Supreme Court's application of the Jones no-duty analysis to the facts of Hughes as indicating that the no-duty rule had continuing viability in other contexts.