Magazine article Risk Management

Foul Ball Lands in Court

Magazine article Risk Management

Foul Ball Lands in Court

Article excerpt

After arriving late to Fenway Park on a brisk September evening in 1998, Jane Costa side-stepped her way through the stadium's narrow aisles towards her seat as she prepared to take in her first Boston Red Sox game in nearly 30 years. Minutes later, right-handed out-fielder Darrin Lewis fouled of a two-strike pitch, which sent the ball down the first base line and into the stands. The ball struck Costa in the face some 20 rows behind the Red Sox dugout.

The impact fractured multiple bones in her face, bloodied her nose and mouth, and left Costa unconscious. The ensuing reconstructive surgery that she was forced to undergo left her with eight metal plates in her face, severe headaches and nerve damage for which she must take daily medication. Costa filed suit against the Red Sox, listing her total medical expenses and lost wages at just under $500,000.

The Red Sox main defense, according to its lawyer Douglas Fox, was that "a person of average intelligence walking into a ballpark can see that one of the objects of the game is to make the ball go through the air, and you can't control the flight and direction of the ball once it leaves the bat."

While Costa claimed ignorance to the game of baseball, and that she was not made aware of the dangers, the appellate court (who received the case after it was dismissed prior to trial in a lower court) agreed with the Red Sox defense team. While it appears on signs throughout Fenway Park and on the back of each ticket stub for fans to watch for foul balls and flying bats, the judge ruled that "where a danger would be obvious to a person of ordinary perception and judgment, a landowner may reasonably assume that a visitor has knowledge of it and, therefore, any further warning would be an empty form that would not reduce the likelihood of resulting harm. …

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