Rudnick v. Golden West Broadcasters

• Citation: 156 Cal.App.3d 793,202 Cal.Rptr. 900
• Court: California Court of Appeals
• Decision Date: 31 May 1984
• Parties: Loretta M. RUDNICK, Plaintiff and Appellant, v. GOLDEN WEST BROADCASTERS, Defendant and Respondent. G000039. Civ. 30032.

Page 900

202 Cal.Rptr. 900

156 Cal.App.3d 793

Loretta M. RUDNICK, Plaintiff and Appellant, v. GOLDEN WEST BROADCASTERS, Defendant and Respondent.

G000039.

Civ. 30032.

Court of Appeal, Fourth District, Division 3, California.

May 31, 1984.

Martin N. Daniel, Inc., Beverly Hills, for plaintiff and appellant.

Shields, Anderson & Garrison and Marc S. Soble, Los Angeles, for defendant and respondent.

OPINION

CROSBY, Associate Justice.

Loretta Rudnick was struck by a foul ball during a California Angels baseball game. She appeals from a judgment of dismissal of her personal injury action against the team's corporate owner, Golden West Broadcasters, after a defense motion for summary judgment was granted.

I

Rudnick was struck by the ball while seated in an unscreened section of Anaheim Stadium in the area near first base. Her complaint alleged Golden West was an occupier of land who "invited the public to attend and observe baseball games at Anaheim Stadium ... for a stipulated admission fee." Two causes of action were stated, one for negligent construction, maintenance, operation, and repair of the stadium's premises and a second for breach of an implied warranty that spectators sitting in the stadium's unscreened areas would be sufficiently protected from baseballs which might be hit in their direction. Golden West's motion for summary judgment did not differentiate between the two theories of liability.

Golden West answered and denied the allegations of the complaint, pleading affirmative defenses of contributory negligence and assumption of risk. After some discovery, Golden West moved for summary judgment. The motion was supported by the declaration of the director of stadium operations which stated, "I have held this job since December 1980. I am responsible for the day to day operations and running of Anaheim Stadium. As such I have knowledge regarding the screening on the ball field where the California Angels play. [p] The width of the backstop screen is 69 feet, 10 inches. The height is 12 feet 5 inches from playing field to top. The screen covers spectators completely in [the] homeplate [sic] area as [the] screen backstop is affixed to netting that runs up to the corner part of the press box. The width of the screen covers the area behind home plate that would also include a portion of the seating toward each dugout. The screen is composed of number nine gauge steel wire mesh. The guidelines are composed of 3/4-inch steel bridge strands, while the uprights are 1/2-inch steel. [p] The screen at Anaheim Stadium covers approximately 2,300 seats. It is placed in the areas as described because this is where the vast majority of the foul balls are hit. The screen is in place for every [A]ngels' game and was in place on [the date of Rudnick's injury]."

Golden West also argued Rudnick voluntarily sat in the unscreened area with knowledge foul balls commonly enter the stands there and supported this contention with excerpts from her deposition. In opposition, Rudnick claimed the comparative negligence of the parties presented a triable issue of fact. She stated in her own declaration she was relatively unfamiliar with the game of baseball, assumed unscreened sections of the stadium were safe for spectators, and was previously unaware of the danger posed by errant balls.

The trial court granted Golden West's summary judgment motion based on Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 46 P.2d 144. Quinn held spectators who choose to sit in unscreened seats assume the risk of being struck by batted balls and management has no duty to protect them so long as a sufficient number of screened seats are provided for those who might request them.

II

Assuming Quinn is still the law, the declaration of the stadium manager is nevertheless insufficient to support the judgment. It utterly fails to demonstrate "screened seats are provided for as many [fans] as may be reasonably expected to call for them on any ordinary occasion." (Quinn v. Recreation Park Assn., supra, 3 Cal.2d at p. 729, 46 P.2d 144.) The declaration blandly notes 2300 screened seats are provided without mentioning what is a matter of common knowledge: the Angels regularly draw crowds ten to twenty times that size.

Moreover, the declaration makes no effort to correlate the number of screened seats with the number of requests reasonably to be expected for them and does not allege any screened seats are truly available to fans who are not longtime season ticket holders. By contrast, the ballpark reviewed in Quinn provided more than twice as many screened seats as Anaheim Stadium does and was only one-fourth the size. Accordingly, under its own legal theory Golden West Broadcasters did not carry its burden on the motion, and the judgment must be reversed.

III

The balance of the opinion represents only the view of the author, as Justice Sonenshine concurs solely in the preceding parts and Justice Trotter concurs separately. (See Castro v. Superior Court (1970) 9 Cal.App.3d 675, 681, 88 Cal.Rptr. 500.) These additional thoughts are intended to answer Rudnick's chief contention on appeal which is adopted in the concurring opinion. Rudnick argues the Quinn rationale has been wholly eliminated by the holdings in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 and Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561. Not so.

The liability of a baseball team to the spectators remains unchanged under modern California tort theory because the scope of the duty of care required of management established in Quinn has not been affected by recent changes in the law. As one respected authority states, "when the plaintiff has reasonably assumed a risk (e.g., sat in a baseball stadium in an area without protective screening), his conduct will not be considered as 'fault' under comparative negligence. Rather, the court will decide whether the defendant breached a 'duty' to the plaintiff. In the baseball case, the question would be whether defendant discharged his duty by providing some protective screening and warning of the risks involved." (Schwartz, Comparative Negligence (1975 special Cal. supp.) § 2(D), p. 4.)

The law has traditionally treated the national pastime in a sui generis manner. ¹ In 1935, when ordinary assumption of risk could be an absolute bar to a plaintiff's recovery, the Supreme Court fashioned the special rule in Quinn for baseball spectators who chose to sit behind home plate: they did not assume the risk. Management had an overriding duty to provide screened seats for a reasonable number of patrons. (Quinn v. Recreation Park Assn., supra, 3 Cal.2d at p. 729, 46 P.2d 144.)

In Ratcliff v. San Diego Baseball Club (1938) 27 Cal.App.2d 733, 81 P.2d 625, a spectator was struck by an errant bat as she walked in an unscreened aisle on the way to her screened seat. The court observed flying bats were not an ordinary threat to aficionados of the game, and the accident could have been avoided if the existing home plate screen had been extended "an additional two or three feet." (Id., at p. 736, 81 P.2d 625.) In the court's view, management breached its duty of care to protect spectators from an unusual, but not unforeseeable, risk. The phenomenon of a baseball bat flying into the stands was not so common as to charge a fan with assumption of that risk, however; judgment for plaintiff was affirmed.

A directed verdict for the defense was affirmed in Brown v. San Francisco Ball Club, Inc. (1950) 99 Cal.App.2d 484, 222 P.2d 19, where an adult plaintiff was struck by an erratically hurled ball in an unscreened seat near the first base line. The court emphasized the ballclub's limited duty to paying customers: "respondent fully discharged its duty toward appellant, as concerns the risk to her of being hit by thrown or batted baseballs, when it provided screened seats for all who might reasonably be expected to request them, in fact many more screened seats than were requested. Hence, the injury suffered by her when struck by a thrown ball, while voluntarily occupying an unscreened seat, did not flow from, was not caused by, any failure of performance by respondent of any duty owed her, and did not give rise to a cause of action in her favor against respondent for damages for such injury." (Id., at p. 488, 222 P.2d 19, emphasis added.)

Brown is noteworthy for its careful distinction between the concepts of traditional assumption of risk by plaintiff and defendant's duty of care; and the decision is based as much on the finding of no duty--and hence, no negligence by the defendant--as on assumption of risk by plaintiff: "the evidence ... does not take her outside the application of the rule announced in [Quinn ]; ... she assumed the risk of injury in respect to which she complains; ... the injury was not caused by any negligence upon the part of the respondent; and ... determination thereof was a proper function of the trial court upon motion for directed verdict." ² (Id., at p. 492, 222 P.2d 19, emphasis added.) No court has ever criticized, much less overruled, the definition of management's duty to the fans of Quinn and its progeny; and many have followed it since.

IV

In Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, the Supreme Court abandoned the doctrine of contributory negligence in favor of a system of comparative fault and abolished unreasonable assumption of risk as a defense, the form which overlaps contributory negligence, i.e., where the "plaintiff's conduct in encountering a known risk may be in itself unreasonable, because the danger is out of all proportion to the advantage which he is seeking to obtain ...." (Prosser, Torts (4th ed. 1971) § 68, pp. 440-441, fn. omitted.) Did Li change the duty rules uniquely applicable to baseball, where the plaintiff's conduct in choosing a seat has invariably been viewed as reasonable? No. In fact, the...