May 2013 - Parks & Recreation - 27

the " zone of danger " is behind each
goal. (See: " Hockey Puck Facial A
Foreseeable Risk For Spectators? "
http://classweb.gmu.edu/jkozlows/
lawarts/08AUG98.pdf).
Eye on the Ball
In the case of Martinez v. Houston McLane Company, 2013 Tex. App. Lexis
2420 (Tex. App. 3/12/2013), plaintiff Shirley Martinez was struck in
the face by a batting practice home
run ball prior to a Houston Astros
home game at Minute Maid Park.
Martinez was using a game ticket
donated by the Astros for members
of the Texas National Guard and
their families. The donated seats in
the bleacher section behind the right
field wall were not protected by any
screening. Martinez had not requested a protected seat. The Astros did
not provide any map, diagram or other information to identify seating areas that were protected or unprotected by screens. Minute Maid Park did,
however, provide 5,000 seats protected by a screen behind home plate in
a stadium with a capacity of 41,000.
At the time of the incident, Martinez
was descending the stairs to her seat
with a child in a stroller. Martinez was
informed by an usher that she could
not take the stroller to her seat. In response, Martinez ascended the stairs
with the child and stroller to take the
stroller to a designated storage area.
While her attention was focused on
climbing the stairs, her back was to the
batting practice on the playing field.
Upon hearing someone yell a warning
that a fly ball was coming toward her,
Martinez shielded the child with her
arms and was struck in the face by the
ball. Martinez sustained an orbital fracture and corneal laceration.
Martinez sued the Astros for
negligence. The trial court granted

summary judgment in favor of the
Astros, effectively dismissing the lawsuit. Martinez appealed.
As noted by the appeals court, Texas
courts had refused to " impose a duty
on stadium owners to screen all seats
or to warn about foul balls. " Instead,
the court found " a stadium owner
owes only a limited duty to spectators
to protect them from baseballs hit into
the stands. " Specifically, under the
Baseball Rule, the court held " the stadium owner must provide 'adequately
screened seats' for all those who wish
to sit behind a screen. "

A number of jurisdictions, including Texas, have adopted comparative
negligence statutes. Under comparative negligence, the negligence of the
defendant is compared to any negligence on the part of the plaintiff that
led to the injury. Accordingly, under
some comparative negligence statutes,
the plaintiff 's assumption of risk is no
longer an automatic bar to recovery
for the defendant's negligence. Rather, the plaintiff 's voluntary encounter
with a known danger is simply a factor
to be weighed against the defendant's
negligence when a jury determines the

The Baseball Rule establishes a fact-specific standard
of care for injuries caused by errant balls at baseball
stadiums by accounting for the open and obvious
nature of the risk that batted balls pose to fans.
On appeal, Martinez asked the appeals court to abolish the traditional
Baseball Rule. As characterized by
Martinez, the Baseball Rule provided an " undeserved shield to stadium
owners " which did not reflect " the
realities of baseball in the modern
era. " In so doing, Martinez claimed
" the stadium owners' limited duty is
an outgrowth of the old, discarded,
assumption-of-the-risk rule. "
Traditionally, assumption of risk
is an affirmative defense which
precludes liability for ordinary negligence. Assumption of risk is a
voluntary encounter with a known
danger. In effect, participants are
deemed to have consented and,
therefore, to have assumed the open
and obvious and/or inherent risks in
an activity, including being struck by
foul balls in the unprotected areas of
baseball stadiums.

proportion of fault to be assigned to
each party under an applicable comparative negligence statute.
In this particular instance, Martinez argued assumption of risk under
the Baseball Rule was " outdated "
because the Texas " comparative negligence scheme is well-equipped to
examine the actions and inactions of
all parties in determining each party's level of culpability. " If so, Martinez was more likely to have her case
proceed to trial for consideration by
a jury, as opposed to having it summarily dismissed on the basis of assumption of risk. The appeals court
rejected this argument.
As noted by the appeals court,
other courts have also held that " the
Baseball Rule has a sound basis despite the abolition of the assumptionof-the-risk doctrine " in jurisdictions
with comparative negligence statutes.

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