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Spectator Injuries May Be Actionable

Question

I've often wondered about whether I would have grounds for suit if I attended a sporting event and was injured. With baseballs, pucks, golf balls, and the like flying about, do I assume the risk of injuries or is the club responsible?

Nicole N.
Almaden Valley

Dear Nicole:

If you have read this column before, you probably have seen the words, "It depends on the circumstances." Well, this is particularly true in this area. Let me give you two examples of recent cases.

John Lowe v. California League of Professional Baseball 65 Cal. Rptr.2d 105 (1997) was a case involving a fan who went to a Rancho Cucamonga Quakes baseball game. Unfortunately, John was seriously injured when the team's mascot distracted him. "Tremor" was a caricature of a dinosaur, about seven feet tall with a tail that protruded from his costume.

"Tremor" was behind John and had been touching John with his tail. John, distracted by the tail, turned toward the mascot, momentarily taking his eyes off the playing field. Just then, a foul ball struck John before he could react to it, seriously injuring him.

The California Court of Appeal held that the baseball club had a duty to John, the spectator, not to increase the inherent risks to which spectators at professional baseball games are regularly exposed and which they assume. Consequently, it would be up to a jury to determine whether the mascot, cavorting in the stands and distracting John's attention, while the game was in progress, constituted negligence in the form of increasing the inherent risk to a plaintiff of being struck by a foul ball.

The second example of a recent sporting event case is Dilger v. Moyles 63 Cal.Rptr.2d 591 (1997). As most of us golf duffers know, it is customary to shout "fore" when your golf shot unfortunately goes off target and is headed toward another person. But does this custom rise to a legal duty? Not according to the California Court of Appeal in this case.

Dorothy was injured when he was struck by an errant golf ball hit by Dave, a fellow golfer. Dorothy brought suit against Dave for damages, claiming that Dave was negligent in failing to yell a warning of "fore." Unfortunately for Dorothy, the Court of Appeal ruled that her suit was barred by the doctrine of express assumption of the risk. The alleged failure to yell the "fore" warning when Dave hit the errant shot was not intentional or reckless conduct outside the range of ordinary activity involved in golfing, but rather was within the range of inherent risks other golfers assumed by playing. The court ruled that even professional golfers run the risk of being hit by shots that go awry.

So you can see, Nicole, cases go both ways. The best thing you can do if you have a specific case is to see your own attorney for legal advice because every case is different, and it really does depend on the circumstances.