MLB Fighting Fans’ Demand for Safety Nets


     OAKLAND, Calif. (CN) – While hinting that Major League Baseball should do more to protect fans from “wayward baseballs” and broken bats, a federal judge on Tuesday doubted whether she has the authority to order nets in every stadium in the nation.
     Lead plaintiff Gail Payne claims in a July 2015 complaint that at least 1,750 fans are injured each year by “wayward baseballs,” “more often than a batter is hit by a pitch.”
     Payne calls herself “a devout fan” of the Oakland Athletics but says she fears for her and her family’s safety when they sit alongside first base in the team’s stadium.
     Major League Baseball moved to dismiss Payne’s lawsuit at Tuesday’s hearing, finding that Payne lacked standing, the court lacked jurisdiction and that Payne’s fraud claims were invalid.
     “The world is full of risks,” Adam Lauridsen, who argued for the league before U.S. District Judge Yvonne Gonzalez Rogers, said. “Not all of those risks provide cases or controversies for courts to decide.”
     But Rogers indicated that she might think otherwise.
     “If all of these spectators are sitting there not knowing that MLB has been hiding information that suggests that the risk of sitting in those seats that are unprotected is significantly greater than anyone ever thought, then who is ever to have standing if not the manner in which the plaintiffs have put it forward?” Rogers asked.
     Lauridsen contended that the plaintiffs have not alleged facts “sufficient for imminence” under the existing case law.
     Steve Berman, who represents the plaintiffs, disagreed.
     “We’ve alleged that my clients are season ticket holders, that Ms. Payne was seated in a danger zone, that there’s no protection in that danger zone, that she’s had to take evasive action,” Berman said. “Her injury is not hypothetical.”
     Lauridsen argued that U.S. Supreme Court case law does not support the plaintiffs’ call for an injunction on the basis of “risk of future harm.”
     “We are dealing with the same chain of contingencies here – choices that are made by the plaintiff that put them in this position,” he said. “Many people chose their sections purposefully.”
     That drew a retort from Rogers.
     “Well, purposefully so that they can have a better view, but not purposefully so that they get hit in the head,” she said.
     Lauridsen quickly clarified that he meant fans might choose the seats at issue “for the purposes of catching a foul ball,” and added that his opponents did not “point to a single case that would support an injunction here.”
     Rogers then questioned whether her court even had jurisdiction in this case.
     “It seems a stretch that this court would have personal jurisdiction over clubs that are not in California,” Rogers said.
     She said to Berman, “Let’s assume for purposes of argument that they do come into this jurisdiction. You’re asking for injunctive relief, but the injunctive relief you’re asking for clubs outside of California relates to activity that occurs outside of California,” Rogers said. “They wouldn’t have any ability to impact what happens at the Oakland stadium.”
     Berman said that “once you have jurisdiction, you can order the appropriate remedy.”
     Thomas Gorman, who also argued for Major League Baseball, disagreed.
     “I don’t think there’s anything in the complaint that says the Tampa Bay Devil Rays are responsible for the netting configuration for every ballpark in the country,” Gorman said.
     Turning to the plaintiffs’ fraud allegations, Rogers said Payne had made a sufficient case for now.
     “In general, it seems to me that this is a judgment call more than anything else,” she said.
     Lauridsen argued that the plaintiffs “have not alleged that they would have acted differently but for the supposed concealment,” and that they furthermore “affirmatively alleged that they did the same thing after they became aware of the alleged concealment,” since they continued to attend baseball games sitting in the same sections “months after they filed their initial complaint.”
     Calling Lauridsen’s argument “a Catch-22,” Berman said that if Lauridsen’s argument was taken “to the extreme” it would imply that “no one would ever be able to fix this problem, because you either don’t know enough to sue, or if you do know enough and you continue to go to games you’re not being defrauded anymore.”
     But Lauridsen said that the injunctive relief the plaintiffs ask for “does not address alleged fraudulent concealment.”
     He said that there is a “fundamental disconnect between the remedy of putting up more nets and the past concealment of information,” and that “there is not a specific allegation that any plaintiff relied on any single statement by MLB.”
     He added, “Everything is at a high level of generality.”
     Berman said that the league’s statements that the stadium sections at issue are “kid-friendly” and “safe as long as [fans] paid attention” constituted specific statements.
     He added that Major League Baseball players have been asking the league to put up the protective netting since 2009, and that many players will not let their families sit in the sections at issue.
     Rogers said, “I’m curious whether either of you in researching these issues have come across any analogous case where providers of what is effectively entertainment have had to warn the public.
     “For example, a roller coaster may be safe, but it’s not safe for small children,” she continued, referring to how amusement parks like Six Flags have height restrictions for riding roller coasters. “Are there any cases that have led to that kind of practice?”
     Lauridsen replied that there is a warning on the back of every Major League Baseball ticket that spectators could possibly be injured by errant balls or bats.
     “Plaintiffs try to say that that induced some false belief that they were safe,” he said. “This is a situation where information has been made available to the public to the extent that it reasonably can be.”
     Rogers said levelly, “The allegations are concerning.”
     Lauridsen replied, “The commissioner [of the league] understands, and all of baseball understands that there’s a balancing here. But this balancing isn’t for the courts. It’s for regulators and legislators. It’s a policy issue.”
     Berman pointed out that “it was only after we filed this lawsuit that the commissioner made such recommendations.”
     Rogers said, “It’s an interesting problem. I don’t have any answers for you today.”
     Berman is with Hagens Berman in Seattle.
     Lauridsen and Gorman are with Keker & Van Nest in San Francisco.
     

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