Romeo v. Pittsburgh Associates

• Decision Date: 04 December 2001
• Citation: 787 A.2d 1027,2001 Pa Super 343
• Parties: Nancy A. ROMEO and James N. Romeo, her husband, Appellants, v. The PITTSBURGH ASSOCIATES, d/b/a The Pittsburgh Pirates Baseball Club.
• Court: Pennsylvania Superior Court

787 A.2d 1027

2001 Pa Super 343

Nancy A. ROMEO and James N. Romeo, her husband, Appellants, v. The PITTSBURGH ASSOCIATES, d/b/a The Pittsburgh Pirates Baseball Club.

Superior Court of Pennsylvania.

Submitted October 15, 2001.

Filed December 4, 2001.

Steven B. Larchuk and Brian S. Malkin, Wexford, for appellants.

Stephen J. Del Sole, Pittsburgh, for appellee.

Before TODD, J., CERCONE, President Judge Emeritus, and OLSZEWSKI, J.

OLSZEWSKI, J.

¶ 1 Nancy and James Romeo appeal from the order sustaining preliminary objections and dismissing their complaint. We affirm.

¶ 2 On July 13, 1998, appellants, who reside in Ohio, traveled to Pittsburgh with their two sons to attend a Pittsburgh Pirates baseball game at Three Rivers Stadium. Complaint, 2/09/01, at 3-5. Before doing so, appellants contacted appellee and purchased tickets to the game. Id. at 5, 9-10. The back of these tickets contained a disclaimer, which stated that ticket holders assumed the risk of certain dangers during the course of the game, including batted balls. Id. at Exhibit A.

¶ 3 When appellants arrived, they presented the tickets, entered the stadium, and sat in the seats designated by their tickets. Id. at 5. Their seats were located in a field box, six rows from the field on the third baseline in field box seats, Section 73, Row F, Seats 5 through 8. Id. While protective screening was located behind home plate, no screening, netting, or other barrier shielded appellants' seats from the field. Id.

¶ 4 During the course of the baseball game, Ms. Romeo turned her head briefly to the left, away from the action on the field. Id. When she turned back toward home plate, a batted ball struck her in the face and mouth. Id. As a result, she suffered a variety of injuries, including, inter alia, the permanent loss of one of her teeth, nerve damage to another tooth, cuts and lacerations to her mouth, headaches, and nausea. Id. at 5-6.

¶ 5 On February 9, 2001, appellants filed a Complaint in Civil Action against appellee alleging liability for Ms. Romeo's injuries based on numerous legal theories. Specifically, appellants assert that appellee was negligent, strictly liable, liable for breach of contract, liable for breach of warranty, and liable for violating the Unfair Trade Practices and Consumer Protection Law ("UTPCPL") and/or Plain Language Consumer Contract Act ("PLCA"). Appellee filed Preliminary Objections pursuant to Pa.R.C.P. 1028, arguing that none of appellants' allegations stated a claim upon which relief could be granted. On April 9, 2001, the trial court issued an order sustaining these Preliminary Objections and dismissing appellants' complaint. This appeal followed in which appellants raise the following questions:

1. Does a business which stages entertainment known as "Major League Baseball", have any duty whatsoever under a negligence, assumed duty, strict liability, and/or contract theory of law, regarding its knowing exposure of its business invitees sitting in unprotected areas of the business premises to the risk of serious personal injury from line-drive foul balls?

2. Where during the ticket selling process such a business fails to reasonably advise its customers of such a risk, selectively protects through screening only those patrons paying the highest prices, and then adds a "fine print" disclaimer to the reverse of admission tickets, has that business violated the Pennsylvania Unfair Trade Practices Act and/or the Pennsylvania Plain Language Consumer Contract Act?

Appellant's Brief at 2.

¶ 6 Our standard of review for preliminary objections is well settled.

All material facts as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where doubt exists as to whether a demurrer should be sustained, this doubt must be resolved in favor of overruling it.

Muhammad v. Strassburger, 526 Pa. 541, 587 A.2d 1346, 1349 (1991). Appellants pled many different causes of action in their complaint, and we will address the viability of each theory of liability in turn.

Negligence

¶ 7 The operator of a place of amusement is "not an insurer of his patrons," and therefore, patrons will only be able to recover for injuries caused by the operator's failure to exercise "reasonable care in the construction, maintenance, and management of the facility." Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546, 549 (1978). The quantum of care owed will depend on the "character of the exhibitions given and the customary conduct of the patrons invited." Id.

¶ 8 In light of these principles, Pennsylvania Courts have formulated the "no-duty" rule which provides that operators of a baseball stadium, amusement park, or other such amusement facilities have no duty to protect or to warn spectators from "common, frequent, and expected" risks inherent in the activity. Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 343 (2000). Individuals attending these types of activities are deemed to anticipate such obvious risks and therefore to assume them. Id. Former Chief Justice Roberts clarified this interrelation between the "no-duty" rule and the assumption of risk analysis relied upon in early cases.

By voluntarily proceeding to encounter a known or obvious danger, the invitee is deemed to have agreed to accept the risk and to undertake to look out for himself.... 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.

Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 125 (1983) (citations omitted).

¶ 9 On several occasions, this Court specifically considered the liability of a baseball stadium operator for injuries sustained by a patron hit by a foul ball during a baseball game. In a number of early cases, we held that spectators may not recover because they assume this risk of injury when they observe a game from the field or in the bleachers. Schentzel v. Philadelphia National League Club, 173 Pa.Super. 179, 96 A.2d 181, 186 (1953); Iervolino v. Pittsburgh Athletic Co., 212 Pa.Super. 330, 243 A.2d 490, 491 (1968).

¶ 10 During each and every baseball game, foul balls regularly careen into the grandstand and are oftentimes even caught by spectators. See Schentzel, 96 A.2d at 186. This reality is a "matter of such common everyday practical knowledge" that all individuals will be deemed familiar with such `neighborhood knowledge.' Id.; Jones, 394 A.2d at 550. In Schentzel, a woman attending her first baseball game was struck by a foul ball and sued the stadium operator for negligence. Id. at 183. This Court overturned a jury verdict for the woman on the grounds that even she, as a first-time spectator, assumed the risk of being hit by a foul ball by watching the game from the stands. Id. at 186. As a result, the stadium owner was not subject to liability. Id.

¶ 11 We reached a similar conclusion in Iervolino where a patron at a Pittsburgh Pirates baseball game was hit by a foul ball while sitting seven or eight rows behind the first baseline. Iervolino, 243 A.2d at 491. This Court again reversed a jury verdict ruling that despite the spectator's proximity to the field, she assumed the risks of injury from a foul ball. Id. at 492.

¶ 12 With a few minor exceptions, the assumption of risk doctrine has since been abolished in Pennsylvania, and as previously discussed, the Pennsylvania Supreme Court recast the assumption of risk analysis of Schentzel and Iervolino in terms of the "no-duty" rule. Jones, 394 A.2d at 551-52. In Jones, a spectator filed a negligence action against a stadium operator after she was hit by a foul ball while using an interior walkway at the stadium. Id. at 548. Our Supreme Court held that the operator could be liable as a matter of law, because this type of risk was not a "common, frequent, and expected" part of the game. Id. at 551-52. In holding that the "no-duty" rule did not apply to this situation, the Court reasoned that the openings in the interior concourse through which the ball passed were "not an inherent feature of the spectator sport of baseball." Id.

¶ 13 Appellants argue that this shift in Jones from an assumption of risk analysis to a "no-duty" analysis renders Schentzel and Iervolino devoid of precedential value. Appellants severely misinterpret Jones. The "no-duty" rule set forth in Jones clearly incorporates the concept of assumption of risk utilized in earlier cases. The passage from Justice Robert's opinion in Carrender, discussed above, reinforces this interpretation. See Carrender, 469 A.2d at 125.

¶ 14 In turning now to the facts of the present case, we conclude that the "no-duty" rule applies, because the risk of being struck by a foul ball while sitting in the bleachers is exactly the type of "common, frequent, and expected" risk inherent in a baseball game. As both Schentzel and Iervolino held, one need not be an avid baseball fan to appreciate the risk that a batted ball can and will enter the grandstand during the course of a game. As a result, under Jones, appellee had no duty to protect appellants from or to warn them about the risk of injury from a foul ball.

¶ 15 This case is clearly distinguishable from Jones where the Supreme Court found the "no-duty" rule inapplicable, because the risk of being hit by a ball in the interior concourse was not a common one, inherent to the game. Here, on the other hand, appellants faced the same basic risk as the spectators in Schentzel and Iervolino: being hit by a foul ball while sitting in the stands. The Court in Jones expressly stated that "[r]ecovery is not granted to those who voluntarily expose themselves to the kind of risks involved in Iervolino [ ] and Schentzel [ ], by...