Gunther v. Charlotte Baseball, Inc.

Decision Date07 June 1994
Docket NumberCiv. A. No. 0:93-1210-17.
Citation854 F. Supp. 424
CourtU.S. District Court — District of South Carolina
PartiesMary Sue GUNTHER, Plaintiff, v. CHARLOTTE BASEBALL, INC., Defendant.

Jim Anders and James M. Whitlark, Fedor, Anders, Massey & Whitlark, Columbia, SC, for plaintiff.

James C. Cothran, Jr., Holcombe, Bomar, Cothran & Gunn, Spartanburg, SC, for defendant.


JOSEPH F. ANDERSON, Jr., District Judge.

On May 22, 1990, Mary Sue Gunther was invited by a friend to attend her first baseball game, a minor league contest between the Triple A-Charlotte Knights and the Jacksonville Suns. Unfortunately, during the game a foul ball struck the plaintiff in the face, causing severe and painful injuries. Gunther thereafter initiated this action against Charlotte Baseball, Inc., the owner of the Knights and the stadium in which they play. Gunther's complaint alleges negligence in the design and operation of the park.

The matter is now before the court upon the defendant's motion for summary judgment. The case presents a question of first impression in South Carolina: whether a patron at a baseball game assumes the risk of injury incurred by being struck by a batted ball. For the reasons stated below, the court has concluded that the South Carolina Supreme Court would answer this question in the affirmative. Accordingly, summary judgment must be granted to the defendant.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is well established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987).

The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 993, 8 L.Ed.2d 176 (1962). When the defendant is the moving party and the plaintiff has the ultimate burden of proof on an issue, the defendant must identify the parts of the record that demonstrate the plaintiff lacks sufficient evidence. The nonmoving party, here the plaintiff, must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Viewed in the light most favorable to the plaintiff, the facts are as follows: Gunther, a thirty-seven year-old woman from New York, was in Charlotte, North Carolina on a business trip. While there, she accepted a friend's invitation to attend a game at the Charlotte Knight's newly christened field, known as "Knights' Castle," located across the South Carolina border in Fort Mill, South Carolina. Gunther contends that she had never before attended a baseball game, although she acknowledged that she had watched the sport on television "in passing."

Gunther occupied a seat in the second row of bleachers (one row away from the field) behind the third-base dugout and eighty-one feet from home plate. Throughout the game, a mascot walked back and forth on top of the third-base dugout to entertain the fans.

The standard practice of the Charlotte organization is to warn the spectators via the public address system several times about the hazards of foul balls: once before the game begins and two or three times during the game. The pre-game warning is given directly before the singing of the National Anthem, and other warnings are given at appropriate times during the game. Gunther contends that she arrived at the stadium as the game was beginning, thus missing the first warning, and that she was injured in approximately the third inning,1 before any subsequent warnings were given.2

Immediately before the plaintiff was struck by the foul ball, another ball was fouled back onto the press box, shattering the glass window and causing Gunther to divert her attention momentarily to the press box area, over her right shoulder. As she turned back to watch the game, a second foul ball struck Gunther squarely in the face, causing serious injuries to her face and to the bony orbit encasing her eye.

The Knights' stadium, described by its owners as a "state of the art" facility, was in its maiden season when Gunther's injury occurred. Approximately twenty home games had been played there prior to the game Gunther attended. The plaintiff has produced a newspaper article from a local newspaper regarding her injury, which indicates that the press box glass had been shattered by foul balls on three or four occasions prior to the May 22 game. Plaintiff contends that these earlier incidents served as notice to the defendant that its facility was defectively designed and that balls shattering the press box glass on regular occasions would foreseeably distract fans, diverting their attention from the game and rendering them vulnerable to foul balls hit in their direction.

The defendant takes issue with the plaintiff's contention regarding prior incidents of broken glass. The defendant argues that the newspaper article is inadmissible hearsay and that a search of its own records has failed to turn up repair orders for shattered press box glass prior to Gunther's injury. The defendant's general manager, Marc Farka, acknowledged at his deposition that several other glass breaking incidents occurred, although he could not say with certainty whether they occurred before or after Gunther's injury. Additionally, a memorandum of a June 21 meeting between the Knights' owner and the stadium's architect to discuss "unfinished work and other issues" indicates that the architect was instructed to look into the possibility of installing shatter-proof glass in the press box. Therefore, mindful of the obligation to consider the inferences to be drawn from the evidence in the light most favorable to the plaintiff, the court will assume that several glass breaking episodes pre-dated Gunther's injury.

The undisputed evidence indicates that the screen behind home plate at the Knights' stadium is the highest in the league and extends almost from dugout to dugout. Although it is possible to extend the protective screen further, the Charlotte organization (like most clubs around the country) chose not to do so, because some fans wish to have a completely unobstructed view of the game.

As noted previously, Gunther contends that she had never before witnessed a live performance of what has been described as our national pastime. She had, however, seen portions of games on television when other family members watched them. At her deposition, Gunther could not recall whether she had seen any other foul balls leave the field prior to the one that shattered the press box glass. She acknowledged, however, that she realized the ball comes off the bat with power. She stated: "They hit it. They hit it hard. Their goal is to get it out of the stadium, you know, or make a home run." Specifically, the plaintiff's deposition included the following:

Q. Would you assume that if the ball is coming at the batter from another pitcher, sometimes hard and sometimes not, depending on the pitch, and a batter swings back at the ball real hard, the ball is going to go somewhere fast?
A. Yes.
Q. You just didn't believe it would come in the stands?
A. No. Well, not that it wouldn't come into the stands, but I never assumed that it would hit me in the face.
Q. You thought it would come into the stands, but it wouldn't hit you?
A. Sometimes you see a ball go into the bleachers. That's my assumption.
Q. Where do you consider the bleachers?
A. Way up.
Q. So, in other words, your assumption was that the ball would go way past you, but not go near you?
A. Yeah. Usually they loft high.
Q. You weren't aware that also the ball could hit the bat and go low?
A. Not really, no.

Plaintiff's deposition, pp. 13-14.

The South Carolina Supreme Court has never had occasion to apply the assumption of risk doctrine to spectators at baseball games. Thus, this court must predict how the South Carolina court would rule if squarely presented with the issue. "In applying state law in diversity cases, a federal court ... must apply the law that it conscientiously believes would have been applied in the state court system." 19 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4507, at 88-89. In deciding how the courts of South Carolina would rule, the court is authorized to consider "all available legal sources, including restatements of the law, treatises, law review commentaries, decisions from other jurisdictions whose doctrinal approach is substantially the same, and `the majority rule.'" Id. at 100-03.

The overwhelming weight of authority from other jurisdictions holds that baseball patrons assume the risk of being struck at games.3 The California Supreme Court stated this dominant position nearly sixty years ago:

One of the natural risks assumed by spectators attending professional games is that of being struck by batted or thrown balls; ... the management is not required, nor does it undertake to insure patrons against injury from such source.... If a spectator chooses to occupy an unscreened seat, or ... is unable to secure a screened seat and consequently occupies one that is not protected, he assumes the risk of being struck by thrown or batted balls; and, if injured thereby, is precluded from recovering damages therefrom.

Quinn v. Recreation Park Ass'n, 3 Cal.2d 725, 46 P.2d 144, 146 (1935).


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