U.S. District Judge Yvonne Gonzalez Rogers previously dismissed for lack of jurisdiction portions of a 2015 class action seeking additional safety netting at Major League Baseball stadiums nationwide.
But she hinted during oral argument Tuesday that concerns from the league’s own pitchers may sway her to allow claims against California clubs to move forward.
Oakland A’s fan Gail Payne and two other named plaintiffs said in their lawsuit that many baseball players allow their families to sit only in sections protected by netting or “way up” in the stands, where foul balls and shards from shattered bats are less likely to hit them.
A sharply hit foul ball can reach peak forces of 8,300 pounds after leaving a bat, enough to stop a small car, the plaintiffs say.
Fans, often children, have been blinded and had their skulls fractured by stray balls and bats, according to the lawsuit. A 14-year-old boy died at Dodger Stadium after being hit by a ball in 1970.
“One of the things that has always concerned me about this case are the allegations that the pitchers themselves do not allow their children to sit in those sections,” Judge Rogers said at the hearing. “Then I see the exhibit from Dodger Stadium and it’s interesting to me how often children are listed as the victims of the injury. Isn’t it time for a jury to decide if something is there? “
In dismissing claims against out-of-state clubs in April, Rogers ordered more jurisdictional discovery on the probability of being injured while sitting in specific sections of the Oakland Coliseum and Dodger Stadium.
Rogers on Tuesday still questioned whether the plaintiffs have standing to sue, calling the league’s fan-injury statistics “incredibly small.”
Major League Baseball attorney Adam Lauridsen agreed, saying statistics show that a person sitting in an unprotected section of stadium stands a 0.003 percent chance of being hit.
“This is an exceedingly small risk and no basis for finding standing upon it,” Lauridsen said.
But plaintiffs’ counsel Steve Berman said the league has reported “Code 2 – Life Threatening” injuries at Dodger Stadium and does not tally the number of injuries at some parks.
“We’re talking about very, very significant risk,” Berman said. “The complaint sets forth a breadth of examples from almost every ballpark in the country. There’s no reason to think this ballpark without netting like other ballparks would not present the same risk of injury.”
Rogers asked whether standing can be established through fear of injury.
“Fear alone is not enough,” Lauridsen said, citing the U.S. Supreme Court’s 1983 ruling in City of Los Angeles vs. Lyons. There, the court ruled motorist Adolph Lyons lacked standing to sue Los Angeles Police Department solely because he feared an officer might put him in a life-threatening chokehold based upon previously having been choked by officers during a traffic stop.
“Are you suggesting then that the fears of all of those pitchers are unfounded?” Rogers asked.
“You have to look at whether the underlying risk motivating the fear is a certainly impending risk,” Lauridsen said. “Their fears are not based upon a certainly impending risk.”
Rogers did not indicate when she will rule.
Berman is with Hagens Berman Sobol Shapiro in Seattle, Lauridsen with Keker & Van Nest in San Francisco.
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