Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

Understanding Your Rights




The baseball season is upon us and most major cities in Ohio – Cleveland, Cincinnati, Columbus, Toledo, Akron, Dayton, and Youngstown – have professional baseball teams that draw in several million spectators per year.    Foul balls, homeruns, broken bats, and errant throws pose a risk of personal injury and harm to any spectator.   However, recovering for such injury can prove difficult and is dependent on the facts and circumstances of each case.

In Ohio, to maintain an action for negligence a plaintiff has the burden of establishing that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached that duty; and (3) the plaintiff suffered injury proximately caused by the breach.    However, if a defendant shows that the plaintiff assumed the risk of injury through participating in an inherently dangerous activity; the defendant owes no duty and, therefore, the plaintiff cannot recover for his/her injuries. 

Ohio recognizes three different variations of assumption of risk: express, primary, and secondary/implied.   Express assumption of the risk occurs in situations where a plaintiff signs a waiver or release expressly agreeing to accept a risk of harm arising from the defendant’s conduct.   A good example of express assumption of the risk is signing a release before going into a trampoline park.   Implied assumption of the risk arises where a plaintiff voluntarily engages in activity where there are known and/or potential risks of harm and, in doing so, relieves the defendant of his duty of care.  Anyone who has ever played in a pick-up basketball game has impliedly assumed the risk of injury inherent to basketball.   Finally, primary assumption of the risk is similar to implied assumption of the risk, however, with primary assumption of the risk, the dangers are such that they cannot be eliminated even through the exercise of reasonable care.   Primary assumption of risk has historically been applied in cases involving spectators injured at sporting events.   This has come to be known as the "baseball rule."

Ohio courts have recognized that watching a baseball game is an inherently dangerous activity.  Specifically, it is known that balls are frequently batted or thrown into the stands and, occasionally, baseball bats are shattered or batters lose their grip sending them into the stands.    Ohio courts have also determined that it is the spectators – not the baseball team or stadium owners – who are in the best position to protect the spectators from injury.   The general argument is that, by paying attention and watching the game, a spectator is in the best position to avoid being struck when a ball or bat is directed towards them.

Further, courts are reluctant to require owners to screen in all areas of the stadium.     Instead, Ohio courts have found that the baseball team or stadium owners meet their duty of care if they provide areas of screened-in seating and give spectators the opportunity to purchase tickets in those areas.   In other words, courts reason that if the spectator wants to be protected by a screen, he or she can buy a ticket in that area.    

As you can see, primary assumption of the risk is an extremely powerful defense.   However, not all injuries sustained at the ballpark will implicate primary assumption of the risk.    Baseball team and stadium owners still owe a duty to warn and remediate conditions on the premises for which they know, or should know through reasonable inspection, that pose an unreasonable risk of harm.   Cases where a spectator is injured as a result of a defect in his or her seat, a hand rail, or a spill caused by a concessioner, may very well proceed without this defense.    Further, Ohio courts have allowed cases to proceed where there is a question as to whether or not the baseball team or stadium owner breached its duty by allowing particular activities to take place in inappropriate areas.  For example, allowing players to take batting practice in the outfield or in a bullpen, may very well preclude the assumption of the risk defense. 

If you have been injured at a sporting event, and are concerned that you may be left financially responsible for your injuries, contact Scott for a no cost, no obligation consultation and case evaluation.