May 2013 - Parks & Recreation - 32

L AW R E V I E W

Within the context of " owners and
possessors of land, " the state supreme
court found further the applicable legal
duty of care would depend on " the status of the person injured on the land -
that is, whether he or she is an invitee,
licensee or trespasser. " As characterized
by the court, at the time of the incident,
Rountree would have been considered
Boise Baseball's business invitee.
An invitee is one who enters upon
the premises of another for a purpose
connected with the business conducted
on the land, and a landowner owes an
invitee the duty to keep the premises
in a reasonably safe condition, or to
warn of hidden or concealed dangers.

duty of a business owner, the state supreme court declined to do so. In so doing, the state supreme court found " no
compelling public policy requiring us
to do so. " In the opinion of the court,
" [t]he rarity of these incidents weighs
against crafting a special rule. "
As noted by the state supreme court,
over seven seasons, Rountree's accident
was " the only time a spectator has suffered a 'major' injury because of a foul
ball at Memorial Stadium. " Moreover,
the court found Boise Baseball had
not provided " any broader statistical
evidence regarding the prevalence of
foul ball injuries in general, and - assuming they were so prevalent - how

As a result, the Idaho state supreme court affirmed
the decision of the district court that had refused to
adopt the Baseball Rule.
According to the state supreme
court, " [t]he precise duty by stadium
owners and operators to spectators
struck by foul balls " was " a matter of
first impression in Idaho. " The Idaho
high court would, therefore, look to
the reasoning of courts in other jurisdictions for guidance to decide this
issue. In so doing, the state supreme
court acknowledged that " [t]he majority of jurisdictions to consider the issue have limited this duty by adopting
some variation of the Baseball Rule. "
Though many variations exist,
the most common formulation of the
Baseball Rule is that stadium owners
and operators must provide screened
seats for as many spectators as may
be reasonably expected to call for
them on any ordinary occasion.
While claiming the authority to adopt
the Baseball Rule in Idaho, limiting the

Parks & Recreation

varying stadium designs might prevent
them. " Accordingly, with " no history
of accidents to look to, and draw from,
to sensibly create a rule, " in the opinion
of the court, " drawing lines as to where
a stadium owner's duty begins, where
netting should be placed, and so on,
becomes guesswork. "
In declining to adopt the Baseball
Rule, the state supreme court would,
therefore, defer to the Idaho Legislature,
leaving " policy formulation to the deliberative body that is better positioned to
consider the pros and cons of the issue " :
These kinds of questions are appropriate for the Legislature because
it has the resources for the research,
study and proper formulation of
broad public policy....This decision
is in keeping with those states whose
legislatures have seen fit to adopt
variations of the Baseball Rule. See,

| M AY 2 0 1 3 | W W W. N R PA . O R G

e.g., Ariz. Rev. Stat. Ann. § 12-554;
Colo Rev. Stat. Ann. § 13-21-120
(1994); N.J. Stat. Ann. § 2A:53A-43
to 2A:53A-48; 745 Ill. Comp. Stat.
Ann. 38/10. Our Legislature can
create a similar rule if it chooses.
However, no compelling public policy rationale exists for us to do so.
As a result, the Idaho state supreme court affirmed the decision of
the district court that had refused to
adopt the Baseball Rule. Rountree's
lawsuit would, therefore, be allowed
to proceed to trial. At trial, a jury
would apply general legal principles
governing a landowner's liability for
negligence to determine whether
Boise Baseball was responsible for
Rountree's injury.
For similar examples of legal challenges concerning responsibility for
injuries sustained due to fly balls, see:
" Spectator Injury Outside the
Stands " (http://classweb.gmu.edu/
jkozlows/lawarts/01JAN06.pdf)
" Baseball Spectator Assumes
Normal Risk of Foul Ball Injury? "
(http://classweb.gmu.edu/jkozlows/lawarts/06JUN03.pdf)
" Spectators Assume Obvious Risks
in Unprotected Areas of Ballfield "
(http://classweb.gmu.edu/jkozlows/lawarts/04APR97.pdf)
" Adequacy of Spectator Protection
in Danger Zone a Jury Issue " (http://
classweb.gmu.edu/jkozlows/lawarts/
05MAY93.pdf)

" Baseball Duty to Provide Protective Screening for Spectators "
(http://classweb.gmu.edu/jkozlows/lawarts/09SEP86.pdf).
James C. Kozlowski, J.D., Ph.D., is an
attorney and associate professor in the
School of Recreation, Health and Tourism at
George Mason University. Email: jkozlows@
gmu.edu. Webpage with link to Law Review
articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows.

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