S. Shore Baseball, LLC v. DeJesus

• Decision Date: 15 February 2013
• Docket Number: No. 45A03–1205–CT–222.,45A03–1205–CT–222.
• Citation: 982 N.E.2d 1076
• Parties: SOUTH SHORE BASEBALL, LLC, d/b/a Gary South Shore Railcats, and Northwest Sports Venture, LLC, Appellants–Defendants, v. Juanita DeJESUS, Appellee–Plaintiff.
• Court: Indiana Appellate Court

982 N.E.2d 1076

SOUTH SHORE BASEBALL, LLC, d/b/a Gary South Shore Railcats, and Northwest Sports Venture, LLC, Appellants–Defendants,

v.Juanita DeJESUS, Appellee–Plaintiff.

No. 45A03–1205–CT–222.

Court of Appeals of Indiana.

Feb. 15, 2013.

Nicholas J. Parolisi, Jr., Mitchell H. Frazen, James R. Branit, Litchfield Cavo LLP, Chicago, IL, Attorneys for Appellants.

Duke T. Escue, Walter J. Alvarez, David A. Wilson, Walter J. Alvarez, P.C., Crown Point, IN, Attorneys for Appellee.

OPINION

BRADFORD, Judge.

On May 23, 2009, Juanita DeJesus was injured when she was hit on the head by a foul ball at a Gary South Shore Railcats minor league professional baseball game. DeJesus subsequently filed suit against South Shore Baseball, LLC d/b/a Gary South Shore Railcats and Northwest Sports Venture, LLC (collectively, “Appellants”), alleging that the Appellants were liable for her injuries under a theory of premises liability and for negligently failing to place protective screening continuously from first to third base. Appellants filed a motion for summary judgment, claiming that, under both Indiana law and the nationwide majority rule, they could not be held liable for DeJesus's injuries. The trial court denied the Appellants' motion for summary judgment. Soon thereafter, Appellants sought and were granted permission to bring this interlocutory appeal. Concluding that, as a matter of law, Appellants cannot be held liable for DeJesus's injuries, we reverse the judgment of the trial court and remand with instructions for the trial court to issue an order granting summary judgment in favor of the Appellants.

FACTS AND PROCEDURAL HISTORY

On May 23, 2009, DeJesus attended the Gary South Shore Railcats opening day baseball game with her fiance and two friends. The Railcats are a professional minor league baseball team. The undisputed facts indicate that DeJesus was a baseball fan, particularly a fan of the Railcats. DeJesus had attended numerous Railcats games before the game on May 23, 2009, and was aware of the risk of foul balls leaving the field of play and entering the stands.

DeJesus was also aware of numerous warnings provided by Appellants regarding the risk of objects leaving the playing field and entering the stands. Specifically, DeJesus was aware of the warning printed on the back of her ticket:

WARNING. By using this ticket and entering the Stadium, the ticket holder assumes all risk and danger incidental to the game of Baseball, whether such risks occur prior to, during, or subsequent to the actual playing of the game, including specifically, (but not limited to) the danger of being injured by thrown bats and thrown or batted balls. The holder further specifically agrees that SouthShore Baseball, LLC ... [is] not liable for any injuries from such causes and hereby waives and releases the same from any such causes.

Appellants' App. pp. 76, 81, 165. DeJesus was also aware of the warning signs posted in each aisle of the seating area which read “Please Be Aware Of Objects Leaving The Playing Field.” Appellants' App. pp. 77, 79, 81. DeJesus also arrived at the stadium early enough on the day in question to hear the following warning read by the stadium announcer:

The Gary SouthShore RailCats management would like to remind you of the risks inherent to the game of baseball. Thrown bats and batted or thrown balls may enter the seating area at a high rate of speed and, as a result, can be very dangerous. Please be alert at all times and watch out for the youngsters in attendance tonight. The Gary SouthShore RailCats and the City of Gary shall not be liable for injuries or loss of personal property or equipment.

Appellants' App. pp. 81–82.

Shortly after the beginning of the game, the second batter hit a pop-up foul ball. DeJesus saw the batter make contact with the ball and saw the ball pop up in the air. DeJesus noticed that the people sitting around her were looking up in the air, so she looked up in the air as well. DeJesus heard someone say, “Look out,” and while DeJesus was looking for the ball, it hit her in the face. Appellants' App. p. 63. As a result of being hit by the foul ball, DeJesus suffered serious injuries, including several fractured bones in her face and blindness in her left eye.

DeJesus filed a complaint against South Shore Baseball, LLC on November 24, 2009, alleging that South Shore was liable for her injuries under a theory of premises liability. On March 2, 2011, DeJesus filed her first amended complaint, which restated her claim against South Shore Baseball and added a claim against Northwest Sports Venture, LLC, in which DeJesus claimed that Northwest Sports Venture was liable for her injuries because it negligently failed to provide protective screening continuously from first to third base. ¹ Appellants filed a motion for summary judgment in which they asserted that, as a matter of law, they could not be held liable for DeJesus's injuries. The trial court denied Appellants' motion. Soon thereafter, Appellants requested and were granted permission to seek this interlocutory appeal.

DISCUSSION AND DECISION

Appellants contend that the trial court erroneously denied their request for summary judgment. Specifically, Appellants claim that the trial court should have granted their motion for summary judgment because, as a matter of law, they cannot be held liable for DeJesus's injuries.

I. Standard of Review

An appellate court reviewing summary judgment analyzes the issues in the same way as would a trial court. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind.1999). A party seeking summary judgment must establish that “the designated evidentiary matter shows 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.” Ind. Trial Rule 56(C). The party moving for summary judgment bears the initial burden to establish its entitlement to summary judgment. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind.2005). “Only then does the burden fall upon the non-moving party to set forth specific facts demonstrating a genuine issue for trial.” Outcalt v. Wardlaw, 750 N.E.2d 859, 862 (Ind.Ct.App.2001), trans. not sought. The reviewing court must “construe the evidence in favor of the non-movant, and resolve all doubts against the moving party.” Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 461 (Ind.2002).

Pfenning v. Lineman, 947 N.E.2d 392, 396–97 (Ind.2011).

II. Premises Liability

In filing suit against the Appellants, DeJesus claimed that the Appellants should be found liable for her injuries under a theory of premises liability. The elements of premises liability are well-established.

A landowner owes to an invitee or social guest “a duty to exercise reasonable care for his protection while he is on the landowner's premises.” Burrell v. Meads, 569 N.E.2d 637, 639 (Ind.1991). To articulate the contours of this duty, we have adopted the Restatement (Second) of Torts § 343 (1965):

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Burrell, 569 N.E.2d at 639–40.

Pfenning, 947 N.E.2d at 406. Because DeJesus's premises liability claim against the Appellants is predicated on their actions as operators of the baseball stadium, the above-stated requirements apply. Thus, for the Appellants to obtain summary judgment, the designated evidence must demonstrate that at least one of the elements of premises liability is not satisfied. See id.

The Appellants argue that the relevant facts are undisputed and preclude a finding that they should have expected that DeJesus would fail to discover or realize the danger of being struck by a foul ball and fail to protect herself against it. Appellants also argue that the potential for foul balls to enter the stands does not involve an unreasonable risk of harm to invitees. We agree.

“It is well known ... that it is not possible, at baseball games, for the ball to be kept at all times within the confines of the playing field,” Lorino v. New Orleans Baseball & Amusement Co., 16 La.App. 95, 133 So. 408 (1931), and “[a]nyone familiar with the game of baseball knows that balls are frequently fouled into the stands and bleachers.” Erickson v. Lexington Baseball Club, 233 N.C. 627, 65 S.E.2d 140, 141 (1951). “Such are common incidents of the game which necessarily involve dangers to spectators.” Id.;see also McNiel v. Fort Worth Baseball Club, 268 S.W.2d 244, 246 (Tex.Civ.App.1954) (noting that a ball being batted into the stands is a circumstance which is commonly incident to the inherent nature of the game of baseball). However, danger notwithstanding, it is widely accepted that “[w]hether baseball fans are viewed as participants in the game itself or merely passive spectators, one thing is certain: the chance to apprehend a misdirected baseball is as much a part of the game as the seventh inning stretch or peanuts and Cracker Jack.” Rudnick v. Golden West Broadcasters, 156 Cal.App.3d 793, 202 Cal.Rptr. 900, 905 (1984). “In other words, spectators know about the risk of being in the stands and, in fact, welcome that risk to a certain extent.” Benejam v. Detroit Tigers, Inc., 246 Mich.App. 645, 635 N.W.2d 219, 222 (2001).

Moreover, the Pennsylvania Superior Court ² has held that it “think[s] the frequency with which foul balls go astray, alight in the grandstand or field, and are sometimes caught and retained by onlookers at baseball games is a matter of such common everyday practical knowledge as to be a subject of judicial notice.” Schentzel v....