A friend sent this piece my way last week and thought I should write about it.  The story concerns an Ohio Supreme Court decision declining to hear an appeal from an appellate court finding that a Cleveland Indians fan could proceed with a lawsuit against the Tribe for injuries he sustained from being hit by a foul ball.     

The trial court granted summary judgment to the Indians, finding that baseball spectators assume the risk of being hit by a foul ball any time they attend a game.  The trial court’s judgment meant the fan – Keith Rawlins – couldn’t present his case to a jury. The Court of Appeals, however, reversed the trial court’s ruling, finding that Rawlins presented enough facts to justify a jury trial.  The Indians asked the Ohio Supreme Court to hear the case and reinstate the trial court’s ruling.   

The Ohio Supreme Court exercises “discretionary jurisdiction.”   That means it doesn’t have to hear every case that comes before it.  And in this case, it declined to hear the Indians appeal.  The upshot is, unless Mr. Rawlins and the Indians reach a settlement, the case will proceed to a jury trial.   

The case is interesting because it goes against the precedent that has existed for decades – that a foul ball is an unavoidable risk at a major league game.   Law students read that case in first year torts class. It is the quintessential example of the concept – that some endeavors are inherently risky, such that by participating, the person accepts the consequences.  Interestingly, there is an old case, decided after the baseball precedent had been established, holding that a hockey fan does not assume the risk of getting hit by a puck.  The rationale of that case was that American fans were not as familiar with hockey as they were with baseball.  Whatever.  

Apparently, in the case of Rawlins v. The Cleveland Indians Baseball Club, the difference was that Rawlins got beaned while he was leaving his seat after having been instructed to move from his original seat in preparation for a post-game fireworks show. At the time he was hit, Rawlins was walking up the aisle seats.  In Rawlins’ view, the fact that he was compelled to move, and the fact that he was hit while in the process of moving, removed the case from the assumption of risk umbrella.   

The Indians argued, logically enough, that people leave their seats at any given time in a game, and there is no reason why they should be any less alert to the prospect of a foul ball while moving then when seated.  The appellate court didn’t see it that way.   Without any real explanation the court found that spectators who voluntarily leave their seats remain subject to the assumption of the risk, but spectators who are directed to move do not.  I confess, I don’t get it.  And does this rule mean that if I get hit while I’m am in the process of paying the beer vendor – an Indians employee -- for a round of beers I’m no longer subject to the assumption of the risk?   Seems like the court is opening a pretty big can of worms here.   

The Supreme Court’s decision not to hear the case doesn’t mean it agrees with the appellate court. It just means the Supreme Court didn’t feel the case posed a matter of great public interest.  That may be because the facts are so unique, a similar situation isn’t likely to recur.   

Maybe the Indians should settle with Mr. Rawlins.  Why not offer him luxury seats the next time the Indians make the World Series?  It’s a generous offer, but in all likelihood, they’ll never have to pay up!