Lee v. National League Baseball Club of Milwaukee, Inc.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtCURRIE; BROADFOOT
Citation4 Wis.2d 168,89 N.W.2d 811
Decision Date06 May 1958
PartiesMrs. May LEE, Respondent, v. NATIONAL LEAGUE BASEBALL CLUB OF MILWAUKEE, Inc., Appellant.

Page 811

89 N.W.2d 811
4 Wis.2d 168
Mrs. May LEE, Respondent,
v.
NATIONAL LEAGUE BASEBALL CLUB OF MILWAUKEE, Inc., Appellant.
Supreme Court of Wisconsin.
May 6, 1958.

[4 Wis.2d 172] Bender, Trump, Davidson & Godfrey, Milwaukee, Kneeland A. Godfrey, Milwaukee, of counsel, for appellant.

Jerome D. (Jerry) Grant, Milwaukee, for respondent.

CURRIE, Justice.

The issues presented on this appeal are as follows:

(1) Was the defendant negligent in failing to take proper steps to protect the plaintiff from injury by the acts of other spectators at the time the foul ball was batted into the box near where the plaintiff was seated?

(2) If the first question is decided in the affirmative, did such negligence constitute a proximate cause of the plaintiff's injuries?

(3) Did the plaintiff assume the risk of being injured as a result of patrons scrambling for a foul ball and knocking her out of her chair?

It has generally been held that one who invites the public to a public amusement place operated by him is liable for injury sustained by an invitee as a result of acts of third persons, if such operator has

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not taken reasonable and appropriate measures to restrict the conduct of such third parties, of which he should have been aware and should have realized was dangerous. Edwards v. Hollywood Canteen, 1946, 27 Cal.2d 802, 167 P.2d 729, 733; Oliver v. Oakwood Country Club, Mo.1951, 245 S.W.2d 37, 41; Hughes v. St. Louis National League Baseball Club, 19498 359 Mo. 993, 224 S.W.2d 989, 994, 16 A.L.R.2d 904; Fimple v. Archer Ballroom Co., 1949, 150 Neb. 681, 35 N.W.2d 680, 683-684; Tyrrell v. Quigley, 1946, 186 Misc. 972, 60 N.Y.S.2d 821, 822; Boardman v. Ottinger, 1939, 161 Or. 202, 88 P.2d 967, 969, and Quinn v. Smith Co., 5 Cir., [4 Wis.2d 173] 1932, 57 F.2d 784, 785. See also, Annotation, 20 A.L.R.2d at pages 8, 32, sec. 13.

The leading Wisconsin case on this issue of the duty, which the operator of a place of amusement is required to exercise in order to protect his patrons from the wrongful acts of third persons, is Pfeifer v. Standard Gateway Theater, Inc., 1951, 259 Wis. 333, 48 N.W.2d 505. In that case a boy, while a patron in the defendant's moving picture theater, was injured as a result of being struck in the eye by an object thrown or projected by some third person. There was testimony that for some time prior to the accident a group of older boys seated near the plaintiff had been throwing popcorn boxes and shooting paper wads by means of rubber bands. There was a dispute in the evidence as to whether the defendant at the time had any employee present patrolling the theater aisles. The trial court directed a verdict for the defendant. This court reversed and held that a jury issue was presented as to whether the defendant had been negligent in failing to properly patrol its theater. A number of cases from other jurisdictions were cited which held that whether the number of guards furnished or other precautions taken by the owner, who has assembled a large crowd of people on his property, are sufficient to control the actions of a crowd, is ordinarily a question for the jury to determine under all the circumstances.

At the time the plaintiff was knocked from her seat in the stampede and scramble by about a dozen other spectators to secure the foul ball as a souvenir, the usher stationed in the box had been withdrawn from his customary station therein and was standing at the extreme front of the box with his back to most of the persons occupying the box. His position at the front of the box was not for the purpose of maintaining order and protecting patrons, but so that he would be in a position to go out onto the playing field as soon as the game was over to perform other duties there.

[4 Wis.2d 174] Counsel for the defendant urge that the defendant had no reason to anticipate that the withdrawal of the usher might result in a patron such as the plaintiff being injured by the acts of the crowd. Special stress is placed upon the testimony that no person had previously been injured in a scramble for a ball batted into the stands at any prior baseball game in the stadium during the operation of the same by the defendant. However, it is conceded that the crowd...

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17 practice notes
  • Goldberg v. Housing Authority of City of Newark, No. A--3
    • United States
    • New Jersey Supreme Court
    • 3 d1 Dezembro d1 1962
    ...to ride a tricycle in the locker room. The lad unintentionally hit a bather. In Lee v. National League Baseball Club of Milwaukee, 4 Wis.2d 168, 89 N.W.2d 811 (Sup.Ct.1958), an elderly lady was injured when a number of copatrons at a ball park scrambled for a foul ball. Defendant had provid......
  • Mayer v. Housing Authority of Jersey City, No. A--653
    • United States
    • New Jersey Superior Court – Appellate Division
    • 30 d2 Junho d2 1964
    ...the presence of guards, would have been effective to prevent the Page 427 injury. See Lee v. National League Baseball Club of Milwaukee, 4 Wis.2d 168, 89 N.W.2d 811 By reason of the foregoing, the trial judge properly denied the defendant's motions to dismiss, and for judgment in its favor.......
  • Johnson v. Mid-South Sports, Inc., MID-SOUTH
    • United States
    • Supreme Court of Oklahoma
    • 26 d2 Fevereiro d2 1991
    ...of injury from negligence of third persons which could have been prevented by the proprieter. 16 In Lee v. National League Baseball Club, 4 Wis.2d 168, 89 N.W.2d 811, 816 (1958), the Wisconsin Supreme Court was faced with a factual situation in which a baseball fan had been crushed in the r......
  • Martin v. George Hyman Construction Co., No. 12356.
    • United States
    • 21 d2 Novembro d2 1978
    ...v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1915) (several baseballs in air at one time); Lee v. National League Baseball Club of Milwaukee, 4 Wis.2d 168, 89 N.W.2d 811 (1958) (negligent supervision of spectators in scramble for foul 13. Cf. Willis v. Stewart, supra at 817-18 (requirement of "an......
  • Request a trial to view additional results
17 cases
  • Goldberg v. Housing Authority of City of Newark, No. A--3
    • United States
    • New Jersey Supreme Court
    • 3 d1 Dezembro d1 1962
    ...to ride a tricycle in the locker room. The lad unintentionally hit a bather. In Lee v. National League Baseball Club of Milwaukee, 4 Wis.2d 168, 89 N.W.2d 811 (Sup.Ct.1958), an elderly lady was injured when a number of copatrons at a ball park scrambled for a foul ball. Defendant had provid......
  • Mayer v. Housing Authority of Jersey City, No. A--653
    • United States
    • New Jersey Superior Court – Appellate Division
    • 30 d2 Junho d2 1964
    ...the presence of guards, would have been effective to prevent the Page 427 injury. See Lee v. National League Baseball Club of Milwaukee, 4 Wis.2d 168, 89 N.W.2d 811 By reason of the foregoing, the trial judge properly denied the defendant's motions to dismiss, and for judgment in its favor.......
  • Johnson v. Mid-South Sports, Inc., MID-SOUTH
    • United States
    • Supreme Court of Oklahoma
    • 26 d2 Fevereiro d2 1991
    ...of injury from negligence of third persons which could have been prevented by the proprieter. 16 In Lee v. National League Baseball Club, 4 Wis.2d 168, 89 N.W.2d 811, 816 (1958), the Wisconsin Supreme Court was faced with a factual situation in which a baseball fan had been crushed in the r......
  • Martin v. George Hyman Construction Co., No. 12356.
    • United States
    • 21 d2 Novembro d2 1978
    ...v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1915) (several baseballs in air at one time); Lee v. National League Baseball Club of Milwaukee, 4 Wis.2d 168, 89 N.W.2d 811 (1958) (negligent supervision of spectators in scramble for foul 13. Cf. Willis v. Stewart, supra at 817-18 (requirement of "an......
  • Request a trial to view additional results

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