Recently, we learned that the father of a young girl who was injured at a 2010 Atlanta Braves game, has filed a lawsuit for her injuries after a foul ball struck her face. Her skull was fractured and she sustained brain damage. This of course was a very sad occurrence for this child and her family.
In the lawsuit which names the Braves and others, the plaintiff claims that the defendants were negligent in that they did not protect his daughter against the injuries she sustained. As an Atlanta personal injury lawyer, I have reviewed cases involving similar injuries and how Georgia law applies.
Around the country, spectators file lawsuits after being injured at sporting events. Baseball is particularly prone to these lawsuits, because fans often go to these games hoping to catch a ball and sitting where they can do so. But as we all know, baseballs fly fast into the stands and sometimes they strike spectators.
The question is whether these injuries can be compensated in a court of law or whether the legal doctrine of “assumption of the risk” is operative in these cases. Assumption of the risk is a defense that parties who are sued use to argue against liability for injuries in various circumstances. Sometimes defendants will use this doctrine for injuries sustained at an amusement park or other activity, like a sporting event injury, in which there is some known risk involved.
The doctrine of assumption of the risk in Georgia, which is referred to as “the effect of plaintiffs failure to avoid consequences of defendant’s negligence,” is found at Official Code of Georgia Annotated section 51-11-7 which provides that “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases, the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.”
The leading case in Georgia on this issue is Vaughn v. Pleasent, 471 S.E.2d 866 (Ga. 1996). This case sets out the elements that the defendant must show to prevail on this affirmative defense: “that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger, and (3) voluntarily exposed himself to those risks.” Vaughn 471 S.E.2d 868.
Since each case really turns on its facts, whether the defendants in any given matter can successfully defend using this doctrine also turns on the facts. For example, in the 1980’s a boy won a case against the Chicago Cubs after being hit by a foul ball. But such results when baseball fans file suit, are not the norm.
As reported in the Atlanta-Journal Constitution, the recent case against the Braves and others might turn on whether the stadium had sufficient netting to protect against foul ball injuries. According the report, spectators file about 200 lawsuits every year for injuries sustained by both bats and balls.
It remains to be seen whether the plaintiff will prevail in the case against the Braves and Major League Baseball for the foul ball injury. The defendants will likely have to prove that the plaintiff had actual, specific, subjective, knowledge of the risk and that the risk assumed in the case (the possibility of begin struck and injured by a speeding ball) is the specific risk which was voluntarily understood before the injury occurred.
One issue the plaintiff might have to overcome is the warning carried on major league baseball tickets which states: “The holder assumes all risk and danger incidental to the game of baseball, whether occurring prior to, during or subsequent to, the actual playing of the game, including specifically … the danger of being injured by thrown or batted balls, thrown or broken bats.” According to the AJC report, other facts may come into play in that at Turner field the Braves “flash warnings on the scoreboard during games, reminding fans to stay alert.”
For legal support after any type of injury or accident, contact The Law Offices of P. Charles Scholle, PLLC. Please contact us to arrange for a free consultation and information about our law practice and how we support our clients during the process of litigating difficult injuries and accidents. We have offices throughout the Atlanta area in Duluth, Buckhead, the Perimeter and Decatur. for your convenience.