LOUGHRAN v. THE PHILLIES
888 A.2d 872 (2005)
Jeremy LOUGHRAN, Appellant
v.
THE PHILLIES and Marlon Byrd, Appellees.
Superior Court of Pennsylvania.
Argued September 14, 2005.
Filed November 23, 2005.
Steven E. Wolfe, Holland, for appellant.
Robert Foster, King of Prussia, for appellees.
Before: MUSMANNO, BENDER, and OLSZEWSKI, JJ.
OLSZEWSKI, J.:
¶ 1 This is an appeal from an order granting summary judgment in favor of appellees.1 Appellant claims the trial court misapplied the "no duty" rule in finding that a spectator at a major league baseball game is not owed a duty by either the team or individual player to protect against a ball thrown into the stands; and that the trial court incorrectly found that his injury was an inherent risk of attending the game. We disagree with appellant, and affirm the order of the trial court. ¶ 2 On July 5, 2003, Jeremy Loughran (appellant) attended a baseball game between the Philadelphia Phillies (Phillies) and the Florida Marlins. Appellant's
Brief, at 5. At the end of the top half of the seventh inning, appellant was injured when Philadelphia centerfielder, Marlon Byrd, after catching a ball for the last out, threw the ball into the stands. Id. Appellant was treated twice at the Veterans Stadium Infirmary and later at St. Mary's Medical Center. Id. at 6. Appellant's immediate injuries included bleeding around his left eye, a concussion, facial contusions, and abrasions.2Id. Appellant has since been treated for severe headaches, vomiting, confusion, incoherence, hallucinations, loss of balance, head and neck pain, photophobia, eye spasms, sleep disruption, and depression. Id. ¶ 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:
We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Our scope of review of a trial court's order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion.
Sackett v. Nationwide Mut. Ins. Co.,880 A.2d 1243 (Pa.Super.2005).
1. Because the summary judgment motion and all corresponding filings were made by both Marlon Byrd and the Philadelphia Phillies, we will refer to them collectively as "appellees."
2. The bleeding was immediately treated at the infirmary. Appellant refused ambulance transport to a local hospital, and instead was driven to St. Mary's Medical Center by his girlfriend. It was at St. Mary's that appellant was diagnosed with a concussion and facial contusions. Appellant's Brief, at 6.
3. Specifically, appellant posits the questions: 1) Whether a spectator at a baseball game assumes the risk of being struck in the face by a ball; 2) Whether being struck in the face by a ball is an inherent risk of attending a game; 3) Whether the "no duty" defense is available to appellees; 4) Whether the "no duty" rule was properly applied; and 5) Whether summary judgment was appropriate. Appellant's Brief, at 4.
4. Throughout his brief to this Court, appellant uses the words "forcefully," "with sufficient force," "overhand," "arbitrarily," "unexpectedly," "intentionally," and "carelessly" to describe the manner in which Byrd threw the ball into the stands. There was no testimony regarding the force at which the ball injuring appellant was thrown, nor how it compared to the other balls reaching the stands; and it does not appear that Byrd's intent to throw the ball as a souvenir was ever questioned. Additionally, appellant admittedly did not see the ball as it was thrown, and could not testify as to it being thrown overhand or underhand. N.T., 10/29/2004, Oral Deposition of Jeremy Loughran, at 57-60.
5. 42 Pa.C.S. § 7102(a)-(b).
6. The passage from Carrender reads, in relevant part:
It is precisely because the invitee assumes the risk of injury from obvious and avoidable dangers that the possessor owes the invitee no duty to take measures to alleviate those dangers. Thus, to say that the invitee assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers.
Id. at 125.
7. The Romeo panel stated: "The `no-duty' rule set forth in Jones clearly incorporates the concept of assumption of the risk utilized in earlier cases." Romeo, 787 A.2d at 1031.
8. That recovery for injury resulting from being struck by a batted ball has been most often precluded on the basis of assumption of the risk can be seen from the Supreme Court's quotation of the Restatement of Torts in summarizing the various types of assumption of the risk cases. The quoted passage follows:
The Restatement Second of Torts, § 496A, summarizes the general principle of assumption of the risk as follows: "A plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm." In practice, the doctrine was more complicated. The comment to the Restatement notes that the doctrine has been used by the courts "in at least four different senses, and the distinctions seldom have been made clear." Id. § 496A comment C. Those four meanings are summarized in the comment as follows:
2. A second, and closely related, meaning is that the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances. Thus a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without taking precautions to protect him from being hit by the ball. Again the legal result is that the defendant is relieved of his duty to the plaintiff.
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.
9. Notably baseball clubs do provide protective screens between home plate and the seating area immediately behind home plate, presumably to protect patrons seated there. Query: if baseball clubs owe no duty to patrons to protect them from being struck by a batted ball can the baseball clubs remove the protective netting without fear of being sued? Can the maintenance crew ignore a rip in the netting and fix it at their leisure knowing all along that the net is provided not out of any duty but gratuitously?
10. Although it does not appear that the Majority's analysis is premised upon a lack of evidence, the Majority seems to hedge its position some by asserting in footnote 4 that there was a lack of evidence that Byrd threw the ball in a forceful manner. I cannot agree. Although Appellant was not watching Byrd when Byrd threw the ball that struck him, if Appellant's allegations are true, the ball struck Appellant with sufficient force to break his eyeglasses, bloody his face and cause a concussion. Thus, basic physics indicates that the ball was thrown with considerable force. Moreover, a statement of Appellant's companion indicates that Byrd threw the ball hard in overhand fashion.