Summer J. v. U.S. Baseball Fed'n

• Citation: 45 Cal.App.5th 261,258 Cal.Rptr.3d 615
• Decision Date: 18 February 2020
• Docket Number: B285029,B282414
• Court: California Court of Appeals
• Parties: SUMMER J., a Minor, etc., Plaintiff and Appellant, v. UNITED STATES BASEBALL FEDERATION, Defendant and Respondent.

45 Cal.App.5th 261

258 Cal.Rptr.3d 615

SUMMER J., a Minor, etc., Plaintiff and Appellant,

v.UNITED STATES BASEBALL FEDERATION, Defendant and Respondent.

B282414

B285029

Court of Appeal, Second District, Division 7, California.

Filed February 18, 2020

As Modified on Denial of Rehearing March 9, 2020

Steven B. Stevens, Professional Law Corp., Steven B. Stevens, Los Angeles; The Law Offices of Thomas M. Dempsey, Thomas M. Dempsey ; Selarz Law Corp. and Daniel E. Selarz, Los Angeles, for Plaintiff and Appellant.

Manning & Kass, Ellrod, Ramirez, Trester, Sevan Gobel and Ladell Hulet Muhlestein, Los Angeles, for Defendant and Respondent United States Baseball Federation.

PERLUSS, P. J.

Writing for the New York Court of Appeals to reverse a judgment in favor of a young man injured while riding an attraction at the Coney Island amusement park, then-Chief Judge Benjamin Cardozo applied the common law doctrine volenti non fit injuria ("to a willing person, injury is not done") and explained, "One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball." ( Murphy v. Steeplechase Amusement Co. (1929) 250 N.Y. 479, 482-483, .)¹ Chief Judge Cardozo’s embrace of a baseball fan’s fundamental responsibility to protect himself or herself from injury from a foul ball—often referred to as the "Baseball Rule"² —was consistent with the state of the law throughout the country. The California Supreme Court in Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 46 P.2d 144, although holding a stadium operator had a limited duty to provide a screened area at the ballpark, nonetheless observed, " ‘[I]t 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.’ " ( Id . at p. 729, 46 P.2d 144.) More than 60 years later, the court of appeal in Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 123, 65 Cal.Rptr.2d 105 noted, "[F]oul balls hit into the spectators’ area clearly create a risk of injury. If such foul balls were to be eliminated, it would be impossible to play the game. Thus, foul balls represent an inherent risk to spectators attending baseball games.... [S]uch risk is assumed." ³

(See generally Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 181, 229 Cal.Rptr. 612 ["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 sharp contrast to this judicial view of fans’ accountability for their own protection from balls hit into the stands, at Major League Baseball’s 2019 winter meetings Commissioner Rob Manfred announced that all 30 major league teams will expand the protective netting in their stadiums "substantially beyond the end of the dugout" for the 2020 season and that seven or eight stadiums will run netting all the way to the foul poles. (Young & Cosgrove, Baseball commissioner says all 30 MLB teams will expand protective netting for 2020 season (Dec. 11, 2019) 2019/12/11/baseball-commissioner-says-all-30-mlb-teams-to-expand-protective-netting.html> [as of Feb. 18, 2020], archived at .) Extended netting is also being installed in many minor league ballparks. (Reichard, All MLB Ballparks Will Feature Extended Netting in 2020 , Ballpark Digest (Dec. 11, 2019) 2019/12/11/all-mlb-ballparks-will-feature-extended-netting-in-2020/> [as of Feb. 18, 2020], archived at .)

To what extent should this modern, practical view of the importance of protective netting shape the legal system’s understanding of the risks inherent in attending a baseball game and the responsibility of stadium owners to minimize spectator injuries from foul balls? Phrased more specifically in terms of California tort law and the doctrine of primary assumption of risk, would the provision of adequate protective netting in a perceived zone of danger behind home plate (or for field-level seating along the first- and third-base lines between home plate and the dugouts) increase safety and minimize the risk of injury to spectators without altering the nature of baseball as it is played today in professional and college ballparks? We conclude it would and, accordingly, reverse the judgment entered in favor of the United States Baseball Federation (US Baseball) after the trial court sustained without leave to amend US Baseball’s demurrer to the first amended complaint of 12-year-old Summer J., who was seriously injured by a line drive foul ball while watching a baseball game sponsored by US Baseball.

FACTUAL AND PROCEDURAL BACKGROUND

Summer attended US Baseball’s national team trials on August 17, 2013 at Blair Field, located on the campus of California State University, Long Beach (CSULB), a stadium jointly owned and maintained by the City of Long Beach and CSULB. Summer was seated in the grandstand or "spectator bleachers," an area of the stadium without a protective screen or netting. When she was "momentarily distracted from the field of play," Summer was struck in the face by a line drive foul ball, which caused serious injury, including damage to her optic nerve.

Through her guardian ad litem, Lee J., Summer sued the City of Long Beach, CSULB and US Baseball, asserting in her original and first amended complaints causes of action for negligence and premises liability.⁴ As to US Baseball, Summer alleged it sponsored the game at which she was injured and controlled the stadium on that day. She further alleged inadequate protective netting was provided for spectators at Blair Field "in the perceived zone of danger behind home plate." The presence of some limited netting at the stadium gave Summer a false sense of security that watching the game in a seat beyond this protected area would be safe. Summer further alleged US Baseball and the other defendants were aware of the inadequate nature of the netting, yet failed to provide any warnings regarding the danger of being struck by a batted ball.

US Baseball demurred to the first amended complaint, contending the lawsuit was barred under the primary assumption of risk doctrine. US Baseball also argued the alleged dangerous condition at the stadium was open and obvious, relieving it of any duty to warn or correct the condition it might otherwise have.

While the demurrer was pending, Summer moved for leave to file a second amended complaint.⁵ She argued she could provide further factual allegations regarding dangers at Blair Field from hard-hit foul balls that were not inherent risks in the sport of baseball, including the failure to install protective netting for field-level seating along the first- and third-base lines between the batter’s box and the dugouts and the configuration of seating that brought spectators in the front rows closer to the field of play than 70 feet as recommended for college stadiums, as well as the provision of enhanced Wi-Fi to encourage use of mobile devices and brightly colored advertising on the outfield fences that distracted fans from the activity on the field.

After briefing and oral argument the court sustained US Baseball’s demurrer without leave to amend, ruling Summer’s claims were barred under the primary assumption of risk doctrine and the proposed amendments would not cure the defects in the pleading.

Judgment, including an award of costs in an amount to be determined, was entered in favor of US Baseball on February 28, 2017. US Baseball filed its memorandum of costs on March 9, 2017, requesting a total of $4,902.24. Summer moved to tax costs. The trial court denied the motion on June 30, 2017. Summer filed timely notices of appeal from the judgment on May 1, 2017 (B282414) and from the postjudgment order denying her motion to tax costs on August 28, 2017 (B285029).

DISCUSSION

1. Standard of Review

"In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory." ( T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162, 226 Cal.Rptr.3d 336, 407 P.3d 18.) "In making this determination, we must accept the facts pleaded as true and give the complaint a reasonable interpretation." ( Mathews v. Becerra (2019) 8 Cal.5th 756, 762, 257 Cal.Rptr.3d 2, 455 P.3d 277.) "If the demurrer was sustained without leave to amend, we consider whether there is a ‘reasonable possibility’ that the defect in the complaint could be cured by amendment." ( King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050, 236 Cal.Rptr.3d 853, 423 P.3d 975.) The burden is on the plaintiff to prove that amendment could cure the defect. ( Ibid . )

Application of the primary assumption of risk doctrine is also a question of law subject to de novo review. ( Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003-1004, 4 Cal.Rptr.3d 103, 75 P.3d 30 ( Kahn ); Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 23, 236 Cal.Rptr.3d 682 ; see Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1083, 122 Cal.Rptr.3d 22 ["the legal question of duty, and specifically the question of whether a particular risk is an inherent part of a sport, ‘is necessarily reached from the common knowledge of judges, and not the opinions of experts’ "]; Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1635, 53 Cal.Rptr.2d 657 ["[t]he determinant of duty, ‘inherent risk,’ is to be decided solely as a question of law and based on the general characteristics of the sport activity and the parties’ relationship to it"]; see generally Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083, 224 Cal.Rptr.3d 846, 404 P.3d 1196 ["[t]he existence of a duty is a question of law, which we...