Neinstein v. Los Angeles Dodgers, Inc.

• Citation: 185 Cal.App.3d 176,229 Cal.Rptr. 612
• Court: California Court of Appeals
• Decision Date: 05 September 1986
• Parties: Shirley NEINSTEIN, Plaintiff and Appellant, v. LOS ANGELES DODGERS, INC., Defendant and Respondent. B018119.

Page 612

229 Cal.Rptr. 612

185 Cal.App.3d 176

Shirley NEINSTEIN, Plaintiff and Appellant, v. LOS ANGELES DODGERS, INC., Defendant and Respondent.

B018119.

Court of Appeal, Second District, Division 2, California.

Sept. 5, 1986.

Charles J. Fleishman, Los Angeles, for plaintiff and appellant.

Shelden, Kulchin and Klein, Aaron E. Shelden and Barry G. Florence, Encino, for defendant and respondent.

COMPTON, Associate Justice.

Plaintiff Shirley Neinstein attended a baseball game at Dodger Stadium. She occupied a seat on the first base side in an unscreened area. During the course of the game she was struck by a batted ball. She subsequently instituted this personal injury action, ¹ alleging that defendant was negligent in failing to protect her against such an occurrence. The trial court granted defendant's motion for summary judgment. This appeal follows. We affirm.

The rules governing adjudication of a motion for summary judgment are well known. In making its determination, the trial court may rely on "affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken" (Code Civ.Proc., § 437c), and may also draw reasonable inferences from the facts before it. (Michael R. v. Jeffrey B. (1984) 158 Cal.App.3d 1059, 1065, 205 Cal.Rptr. 312.) All reasonable inferences are drawn in favor of the party opposing the summary judgment (Rubio v. Swiridoff (1985) 165 Cal.App.3d 400, 403, 211 Cal.Rptr. 338); however, that party has the burden of showing that triable issues of fact exist. (Osmond v. EWAP, Inc. (1984) 153 Cal.App.3d 842, 850, 200 Cal.Rptr. 674.) Where no triable issues of fact are presented, and the sole remaining question is one of law, it may appropriately be determined on a motion for summary judgment. (Leo F. Piazza Paving Co. v. Foundation Constructors, Inc. (1981) 128 Cal.App.3d 583, 589, 177 Cal.Rptr. 268.)

Inasmuch as this case reaches this court on appeal from a summary judgment in favor of the defendant, it is only necessary for us to determine whether there is any possibility that plaintiff may be able to establish her case. (Osmond v. EWAP, Inc., supra, at p. 850, 200 Cal.Rptr. 674.) Furthermore, a motion for summary judgment is addressed to the sound discretion of the trial court. In the absence of a clear showing of abuse of discretion, the judgment will not be disturbed on appeal. (Leo F. Piazza Paving Co. v. Foundation Constructors, Inc., supra, at p. 589, 177 Cal.Rptr. 268.)

The evidence before the court at the time it ruled on defendant's motion revealed the following:

Plaintiff and her husband had occupied the identical seats on a previous occasion, thus she knew before entering the stadium that her seat was located in an unprotected area. Plaintiff did not request a seat in a protected area of the ballpark. During the first inning of the game a foul ball struck and injured her. She received treatment at the ballpark's first aid station and returned to her seat until she left the stadium.

Plaintiff, a self-described "ardent Dodger rooter", had been following the team since she attended a game at Ebbets Field when the baseball club was still the Brooklyn Dodgers. In addition to her previous visits to major league games, she had watched baseball on television since 1958. Moreover, plaintiff attended her two sons' "little league" games and had seen home movies of every game in which they played. In her deposition, plaintiff admitted that she had witnessed baseballs hit into the stands and was "generally familiar" with the game; however, in a subsequent declaration she denied that she "understood the game of baseball" and the danger to which spectators are subject.

Dodger Stadium is a multi-level facility which seats 56,000 patrons. Since its opening in 1962, a protective screen which measures 75 feet by 25 feet has been in place behind home plate. This screen protects approximately 2,000 field seats and an additional 1,000 loge seats. ² Additionally, of the 53,000 unscreened seats, there are approximately 20,000 seats on the reserved level and 6,000 seats in the right and left field pavilions where the chances of being struck by a batted or thrown ball are extremely remote.

In their declarations, two veteran Dodgers' employees in charge of ticket sales stated that, as far as they were aware, no spectator had ever requested seats in the screened area for reasons of protection. They further declared that if a patron were to request a seat in a protected area, every effort would be made to accommodate them.

The backside of each ticket issued by the Dodgers reads: "The holder assumes all risk and danger incidental to the Game of Baseball, whether occurring prior to, during, or subsequent to, the actual playing of the game, including specifically (but not exclusively) the danger of being injured by thrown bats and thrown or batted balls, and agrees that the Participating Clubs, their Agents and Players, are not liable for injuries resulting from such causes."

We think it appropriate at this juncture to narrow the focus of this case by stating what is not at issue. Plaintiff makes no contention that any liability on the part of the Dodgers rests on the notion that the particular player who hit the ball was negligent in so doing.

Nor does our review involve us in the Dodgers' duty to provide a premises free from the myriad of hazards which may exist in any large multi-level structure or which inheres in the conduct of any of the various activities which go on there besides the play of the game itself.

The simple issue here is whether the owner of a baseball stadium has a duty to protect spectators from the natural hazards generated by the way in which the game itself is played. In determining whether an individual, such as plaintiff, should be compensated for his or her injury and in crafting a rule which would permit or reject such compensation there is a group of persons other than the immediate parties whose interests are worthy of consideration. Those are the literally millions of persons who attend baseball games all over the country.

The quality of a spectator's experience in witnessing a baseball game depends on his or her proximity to the field of play and the clarity of the view, not to mention the price of the ticket.

As we see it, to permit plaintiff to recover under the circumstances here would force baseball stadium owners to do one of two things: place all spectator areas behind a protective screen thereby reducing the quality of everyone's view, and since players are often able to reach into the spectator area to catch foul balls, changing the very nature of the game itself; or continue the status quo and increase the price of tickets to cover the cost of compensating injured persons with the attendant result that persons of meager means might be "priced out" of enjoying the great American pastime.

To us, neither alternative is acceptable. In our opinion it is not the role of the courts to effect a wholesale remodeling of a revered American institution through application of the tort law.

In the seminal case of Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 46 P.2d 144, the California Supreme Court attempted to accommodate the competing interests by stating: " 'With respect to the law governing cases of this kind, it has been generally held that one of the natural risks assumed by spectators attending professional games is that of being struck by batted or thrown balls; that the management is not required, nor does it undertake to insure patrons against injury from such source. All that is required is the exercise of ordinary care to protect patrons against such injuries [citation], and in doing so the management is not obliged to screen all seats, because ... many patrons prefer to sit where their view is not obscured by a screen. Moreover, the management is not required to provide for screened seats for all who may apply for them. The duty imposed by law is performed when screened seats are provided for as many as may be reasonably expected to call for them on any ordinary occasion [citations]; and 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 therefor.' " (Id., at p. 729, 46 P.2d 144.) (Emphasis added.)

Were we deciding this issue without the precedent of Quinn v....