Last week news broke that the Houston Astros were being sued by the family of a girl who was hit by a foul ball at Minute Maid Park in 2019.

The lawsuit was filed on Thursday,  and settled by Saturday.

While the speedy settlement likely had more to do with the optics of the court of public opinion, versus any legal jeopardy the Astros faced in a court of Law, nonetheless the case was settled for the usual “undisclosed amount” and parties are likely now under gag orders to prevent releasing any details.

So, anyone looking for a Doug Llewelyn style interviews outside of the People’s Court of Public Opinion is likely going to be waiting a long time to get the gritty details.

The Astros certainly had the money to make the issue go away by settling, but the question one should be asking is, should they have settled in the bigger picture?

To be perfectly clear, a young child getting injured at a baseball game is definitely a terrible thing.

However, it does not mean that the Astros, or Major League Baseball for that matter are negligent.

Throughout my life, I have had numerous opportunities to delve into legal issues from both an academic and practical standpoint. While most of my legal studies have been focused on media law and First Amendment issues, back when I was working on my M.S. degree in Sport Management one of my favorite courses was on legal issues in sport.

Among the myriad topics covered in the course was liability within a Ballpark.

Whether they are aware or not, anyone who attends a baseball game, or most any other live sporting event for that matter, enters into a contract of sorts with the team running the facility through the very act of purchasing a ticket.

While the wording may very slightly, almost every ticket purchased for a baseball game will include something similar to the following verbiage, “the holder assumes all risk and dangers incidental to the game of baseball including specifically (but not exclusively) the danger of being injured by thrown or batted balls.”

In addition to the wording on the tickets, signage throughout the Ballpark, as well as pregame announcements, tell those in attendance to be “foul ball aware” when they are in the Ballpark.

Of course, even with all of those precautions a study by Bloomberg noted that there were an estimated 1,756 injuries sustained at MLB baseball stadiums due to foul balls in 2013. That translates to an average of almost three injuries for every four games played.

Thanks to advanced technology on launch angle and exit velocity, it is now confirmed that a foul ball can enter the stands at upwards of 100 miles per hour.

So, it is in a fan’s best interest to pay attention if they are in the impact zone.

The number of injuries caused by foul balls in many cases can be attributed to fans being distracted on their phones or other devices instead of watching the game. As noted many times before, I will never understand people who go to a Ballpark and do not actually watch the game on the field.

Also, if someone does want to go to the Ballpark and not watch what is happening on the field, they should definitely not sit in the sections where the majority of foul balls and other projectiles are going to go.

Back when I lived in Orlando, and would go to Sea World, I certainly would not sue if I got wet while sitting in the splash zone of Shamu Stadium. The signs clearly say, if you sit here there is a good chance you are going to get wet with cold whale water.

In the same way, if I sit in the lower bowl of a ballpark where there isn’t any netting, I know to watch out when the batter is up.

Additionally, I know to pay particular attention to whether I am sitting where a lefty is most likely to shank the ball, or a righty.

Just like I don’t blame Shamu if I get wet in the splash zone, I am certainly not going to blame a batter or the team they play for if a foul ball enters the stands.

However, for the sake of argument, let us say that there are fans, like the couple who sued the Astros, who bring their child into a high foul ball rich environment and decide to take legal action after the child, or anyone else, is hit by a ball that signs, ticket verbiage and Jumbotron messages told them to look for. What are the chances that a judge will actually rule in their favor?

It turns out that chance of winning in court is very unlikely, which makes the quickness in which the Astros wrote a check to make the bad PR optics go away even more intriguing.

Again, I feel for the child who was injured, but I definitely question the wisdom of anyone who would sit in an unprotected area of a Ballpark with a small child.

To be fair, very few people are ever going to be hit by a foul ball in their lifetime, but there are definitely places in a Ballpark where you are more likely to be hit than other areas.

The speed in which the Astros settled to make the lawsuit go away was very likely the goal of the lawsuit all along, since legal precedence shows that the advantage in a “Fan v. Ballpark” case almost always should go to the Ballpark.

When a fan is injured by a projectile and decides to sue, he or she is likely to be confronted with a judicially created defense known as “the baseball rule.”

Although it evolved through additional cases over time, the baseball rule was first mentioned in the 1913 court case Crane v. Kansas City Baseball & Exhibition Co., 153 S.W. 1076.

While watching a Kansas City Blues game, a spectator named S.J. Crane was injured by a foul ball. When he sued the team and its owner, the trial court granted summary judgment for the defendants.

In their decision the Kansas City Court of Appeals affirmed the lower court ruling for three reasons: 1) foul balls are a fundamental part of baseball; 2) being struck by a foul ball is a well-known risk of attending baseball games; and; 3) Crane voluntarily chose to sit in an unprotected part of the stadium.

The logic being, fans make a conscience decision to put themselves in the potential path of a foul ball since the Ballpark offers many seats where a fan will not experience a close encounter with a baseball.

Or in whale terms, Crane knowingly sat where the chance the orca would splash him was very high, versus choosing a seat where it was dry.

The Houston Astros even became part of the legal precedent reinforcing the baseball rule set forth in a later case testing the question of how many screened seats is reasonable.

While the exact number of seats that must be screened remains unquantified, in Martinez v. Houston McLane Co., 414 S.W.3d 219, a lawsuit against the Houston Astros, the Texas Court of Appeals found it sufficient that 5,000 of Minute Maid Park’s 41,000 seats were screened.

In the years since the Martinez v. Houston McLane Co. decision, even more seats are now behind netting based in part on Major League Baseball trying to improve the optics of distracted fans getting injured by foul balls.

Since 2019, many Ballparks extended the netting around the infield thus ruining the view for people who like to see the game without looking through a net. As a result, more people are now able to zone out and not watch the action on the field.

While teams are largely protected from lawsuits involving fans getting hit during the actual game play, that protection from legal recourse does not include things that happen between innings as noted by another court case.

In the 2013 case Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184 the Missouri Supreme Court held that the baseball rule did not bar a lawsuit brought by a spectator named John Coomer, who was hit in the eye by a hot dog thrown by the team’s mascot.

Although acknowledging that such mascot hot dog throwing antics regularly occur at Ballparks as a means to keep fans entertained during stoppages of play, the court concluded: “[T]he risk of being injured by Sluggerrr’s hotdog toss is not one of the inherent risks of watching a Royals home game.”

To summarize, baseball teams are legally protected in most cases when a fan is hit in the face by a ball, but not when they are hit in the face by a wiener.

At the end of the day, it does not matter what the legal precedence says regarding the chances the Astros had to win their case in court. As with many lawsuits against corporations in the public eye a decision was made to settle and make it go away.

Such is the state of the current lawsuit happy judicial system, where the modus operandi seems to be sue and hope for a quick settlement.

Again, I feel terrible that a two-year-old girl received a fractured skull and all of the other medical issues that followed her encounter with a foul ball, but I seriously question why her parents chose those seats and then sued when a foul ball hit her.

People need to pay attention at the Ballpark and not expect the MLB to surround them in bubble wrap so they can blissfully ignore the action on the field.

Here’s hoping the settlement by the Astros does not open the floodgates of other fans trying to make money off of accidents that a ticket stub clearly told them to watch out for.

Now if you’ll excuse me, all of this legal talk has me in the mood for a Boston Legal marathon. Denny Crane.

Copyright 2021 R. Anderson