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NEGLIGENCE, RISK & TORTS IN SPORTS 1

An Exercise in Negligence, Risk & Intentional Torts in Sports Administration

Ellen R. Weaver

Michigan State University


NEGLIGENCE, RISK & TORTS IN SPORTS 2

An Exercise in Negligence, Risk & Intentional Torts in Sports Administration

In the case of the Hecklers and their rowdy and slander riddled attendance at a minor

league baseball game, it can be argued that they were in violation of several of the terms of

conditions inherent in the tickets they held and that their inflammatory actions validate, at the very

least, consideration of comparative negligence. The violation of stadium policy and the

misconduct of the stadium employees in providing excessive alcohol to the Hecklers is also

fundamentally negligent and directly influenced the Hecklers behavior. The Windjammers

pitcher, Curveballer, was abused through public defamation resulting in arguable emotional injury,

ultimately contributing to an intentional tort of battery. This mix of factors results in an altogether

convoluted situation in which there are many faults to consider and the legal burden of proof

becomes paramount.

Case Factors

Negligence is categorized in terms of the standard of care owed to all participants of a

sporting event, and breach thereof, as well as proof of causation and resulting injury (Spengler,

2009, p. 15-20). The blatant violation of the stadium alcohol policy clearly penetrates both the

standard of care and the breach of duty elements of negligence. Although the selling of alcohol

both within and up to the seventh inning was allowed, the number of drinks distributed to Harry

Heckler directly violated stadium policy which was even more restrictive than guidelines

supported by various professional association position statements; like the ones on alcohol

supported by the TEAM coalition of best practices and sport policy recommendations for the

MLB (as well as the MLS, NBA, NFL, NHL, NASCAR, NCAA and a variety of facilities and

stadium service providers). Alcohol directly effects inhibitions in terms of aggression and rational

thought, as it causes decreased activity in the prefrontal cortex, so there is a direct correlation
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between the alcohol consumed by the Hecklers (combined with their predilection for jeering

opponents) to their exacerbated actions against Curveballer (Gowan, 2010).

Additional factors abound. The injuries sustained by Harriet Heckler after being struck by

the ball, the fall which caused her extended injuries of the broken arm and ribs, should also be

taken into account. Although Curveballers actions were clearly intentional and of an injury in tort

nature, they could also be considered gross negligence in that throwing the ball showed a

heightened degree of carelessness or willful, wanton, or reckless misconduct in that there was

no guarantee that his throw would directly harm one of his aggressors or compensate for any

additional injuries (Spengler, 2009, p. 23). It can also be said that, as season ticket holders and

devout fans, the Hecklers were well aware of the level of their misconduct in terms of fan

guidelines and stadium policy and both the implied and explicit assumption of risk in attending

games and pestering the athletes.

In defending against negligence claims it becomes necessary to consider additional

elements of risk and consent. It is well documented and routinely legally upheld that all

spectators are assuming some risk of injury when attending sporting events. There was also clear

and intentional violation, on the part of the Hecklers, of the stadiums alcohol policy and likely fan

policies. It can be assumed that this field had the appropriate signage to that affect as well as a

waiver inherent in the purchase of a ticket. For example, ticket terms and conditions of the minor

league baseball (MiLB) team the Iowa Cubs (2017) clearly states to ticket holders that Use of a

ticket and/or attendance at Principal Park for the ticketed game or event constitutes the User's

acceptance of and agreement to be bound by the provisions printed on any ticket or [the team]

website and most of those agreements stipulate that the holder waives all claim for injury damage

or loss of any kind, negligent or otherwise. The Orem Owls, another MiLB team, have a clear fan
NEGLIGENCE, RISK & TORTS IN SPORTS 4

code of conduct (2017), the violation of which results in immediate stadium ejection and criminal

prosecution.

MiLB teams also follow all of the Official Baseball Rules of Major League Baseball (2010)

which includes:

Rule 309: Players in uniform shall not address or mingle with spectators, nor sit in the

stands before, during, or after a game. No manager, coach or player shall address any

spectator before or during a game. Players of opposing teams shall not fraternize at any

time while in uniform.

There is also the consideration of the MLB endorsed practice of all fields having safety netting

shielding all field level seats within 70 feet of home plate and between the dugouts (Hagen,

2015). This factors into the accessibility of the pitcher to cause harm to the Hecklers.

Having seats in the front row on the third base line near the dugout places the Hecklers at

reasonable risk of harm, and if safety netting was not in place and their seats were within this

margin, it stands to reason that there should have been some barrier to protect the Hecklers

from the ball.

The reaction of the taunted pitcher, Curveballer, is distinctly punitive in nature and resulted

in the harmful battery of one of the Hecklers. Both the defendants and the plaintiff also have

notable, repeated reputations for reactionary behaviors. It is well known that the Hecklers like to

heckle players, angering them intentionally, and that they had preexisting knowledge of

Curveballers temper and weaknesses. Both parties committed assault in that they were shaking

fists at one another, threatening violence, but only Curveballer followed through with an actual

battery action resulting in the injuries of Harriet Heckler. In this way, negligence is not the

predominant factor in the actual action of throwing the ball, but the additional injuries sustained in

the fall and the contributing factors to the situation are negligent in nature.
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Ultimately, the near centuries worth of case law upholding the limited-duty nature of

protecting spectators in the stands falls short of this situation (Cohen, 2008). Curveballer

willingly entered into an altercation with the Hecklers, throwing the ball with intent into the

stands, whereas all of the semi relevant case law deals with unintentional contact due to foul balls

or broken bats. When examining the various possibilities for litigation, it becomes necessary to

take into account all of these various contributing factors, so in the next section there will be an

attempt to combine these various elements into purposeful case building.

Plaintiff v. Curveballer

In this case, there is causation in fact in that the thrown baseball, under the sin qua non

rule, was the direct cause of harm to the defendant (Spengler, 2009, p. 20). However, this is

unequivocally the action of an intentional tort, rather than negligence. Litigation against

Curveballer should be succinct in that it addresses the absolute intentional tort of injury in the

form of battery after an assault. It can be argued effectively that Curveballer was in direct

violation of the MLBs rules against any fraternization with spectators during the game and the his

actions against the Hecklers escalated from assaultapproaching the stands, engaging in

argument and shaking his fistto outright battery once he threw the ball into the stands.

In terms of the duties and code of conduct expected of the Hecklers, it is unlikely that they

have ever signed any documentation that would void their litigation. It is common practice to

void the actionable waiver that is printed on tickets or facility websites as there is no proof that

the Hecklers have ever read or agreed to those terms (Wolohan, 2009). Establishing this will be

necessary in countering the defense. Additionally, there are grounds for a gross negligence claim

against Curveballer for the injuries sustained by Harriet Heckler as an indirect result of being hit

by the ball, namely, the broken ribs and arm from her unconscious fall to the ground.

Plaintiff v. The Windjammer Organization


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It is typical for an away team to be included in the protection of the terms and conditions

of holding a ticket to an MiLB sporting event, so it would have to first be established that the

warning, waiver, and release of claims are void before pursuing action against the Windjammers.

As season ticketholders, the Hecklers are also not exposed to that contractual language with each

game, but only once for the season, reducing their ability to agree to the terms. Once it is

established that it is possible to continue, it would follow that the Hecklers would pursue a

vicarious liability sentence that would hold the employer, the Windjammers, directly responsible

for the actions of their employee, Carlos Curveballer. The Windjammers, and by affiliation the

River Rats, also knowingly allow their patrons to consume alcohol, so there is an implied risk of

behaviors that correlate with drinking. The Hecklers could even stipulate that since professional

groups like the TEAM coalition recommend that two drinks can be purchased at a time it is

unreasonable to be penalized for having taken more than one, especially since it was still the 7th

inning.

The Windjammers, if unable to provide proof of attempts to counsel Curveball and address

his temper, willingly employ a player who is prone to violent displays of anger. It could be argued

that by allowing Curveball to play they are willing to accept an eventual heated outburst and that

the team accepts this liability. Also, although injuries are commonly referred to within those

waivers and conditions of purchasing a ticket, outright intentional assault and battery are not

referred to directly. There is room in the language to argue that an intentional attack that results

in bodily harm is not subject to the definition of injury provided by the policies of the stadium.

Curveballer Defense

The defense of Carlos Curveballer has a multitude of options for consideration. It would

be necessary to establish proof that the Hecklers have a penchant and history of slanderous

behavior from witness and character statements. It would also be important to establish the
NEGLIGENCE, RISK & TORTS IN SPORTS 7

various breaches of spectator conduct codes and ticket holder terms and conditions, including the

intentional goading of Curveballer that was influenced by intimate knowledge of his weaknesses.

If it can be proven that the rules on conduct and behavior are not overly broad, that they are

simply stated and clear, it could be possible to hold up these terms and conditions in court to sway

the judgment (Wolohan, 2009). An additional support towards this defense would be the

consideration of the Hecklers devout attendance to the games, increasing the likelihood of their

awareness for rules and expectations while also setting a precedent for the failure of the River Rat

facility in upholding their various policies.

It is reasonable to assume that the Hecklers were persistent in their goal to heckle the

Windjammer players, and that their abuse of Curveballer was the latest in a string of slander

against the team. It was late in the game, going on to the eighth inning, so there are grounds for

fatigue, both physical and emotional, to play a role in this situation (Spengler, 2009, p. 29). In

kind, it can be said that the Hecklers are guilty of intentional infliction of emotional distress, as

their actions were purposeful, pointed, and directed towards the players with the intention of

causing emotional damage to reduce the players level of performance (Spengler, 2009, p. 31).

Beyond this, there could be an argument for the Hecklers understanding, knowledge, and

appreciation for the implied assumption of the risks of antagonizing the players as the Hecklers,

adults with the ability to comprehend the consequences of their actions, also voluntarily chose to

sit in an easily accessible area to increase that ability to antagonize (Spengler, 2009, p. 26-27).

Contributory Negligence v. Comparative Negligence

Unfortunately, most states have removed the potential for a contributory negligence claim

which could shift the responsibility for the violent encounter between Curveballer and the

Hecklers to the River Rats organization and the Hecklers themselves (Spengler, 2009, p. 28). It

could have been argued that if the Hecklers had never pursued such repeated, derogatory and
NEGLIGENCE, RISK & TORTS IN SPORTS 8

racist interruptions to the game, Curveballer would never have been goaded into his retaliatory

response. Throwing the ball into the stands could be attributed to the emotional distress caused

by the Hecklers comments, and potentially be attributed to the plaintiff and to the River Rat

facility for contributing to the Hecklers overall conduct. It could even be attributed as an act of

preservation or a preemptive strike in self-defense as the Hecklers were assaulting Curveballer

with words and actions. This course of action would be exceptionally possible if the ticket waiver

was held up as a legal, binding agreement between the Hecklers and everyone involved, both the

Windjammers and the River Rats.

More realistically, the defense would pursue a comparative negligence claim so that

Cuveballers actions would be taken in consideration with the whole of the factors and the various

breaches of duty between the defendant, the Hecklers, and the facility itself. Pursuant to the rules

of a comparative negligence claim, it would then be possible to attribute fault beyond Curveballers

action of throwing the ball, reducing the responsibility of Curveballer in the events of the incident.

To increase those odds, it can also be argued that the action, and inaction, of the staff of the River

Rat stadium directly contributes to the actions undertaken by Curveballer. Not only were the

Hecklers not ejected for their unsportsmanlike, interruptive and outrageous behavior, the alcohol

policy was violated. The contribution of the excess alcohol could stand to further decrease the

percentage of responsibility in Curveballers favor.

Conclusion

Ultimately,therewaswrongdoingoneachlevelofthisincident.Inpursuinglegalaction,

itwouldbenecessarytodecidetowhatextenteachpartywasresponsible,soacomparative

negligencedefensewouldbeinthebestinterestofCurveballer.TheHecklersareopentopursue

bothintentionaltortandnegligenceclaims,butwouldfirsthavetoresolutelyprovethattheyare

notbeholdentothetermsandconditionsofholdingatickettotheevent.Theinterrelatedfactors
NEGLIGENCE, RISK & TORTS IN SPORTS 9

oftheHecklersabusive,racistcommentsandtheiroverdrinkingareelementsthatbothparties

couldusetotheirbenefit,potentially,inordertoreducetheirownpercentageofresponsibility.

Thisexercise,forsomeonewithnolawexperience,ishighlyindicativeofthecircumstantial

natureofbothprosecutionanddefense.
NEGLIGENCE, RISK & TORTS IN SPORTS 10

References

Cohen, A. (2008). Spectators In Stands On Their Own Where Flying Objects Are Concerned.

Retrieved February 16, 2017, from http://www.athleticbusiness.com/civil-

actions/spectators-in-stands-on-their-own-where-flying-objects-are-concerned.html

Official Baseball Rules [PDF]. (2010). Commissioner of Baseball.

Gowan, J. (2010). Your Brain on Alcohol. Retrieved February 18, 2017, from

https://www.psychologytoday.com/blog/you-illuminated/201006/your-brain-alcohol

Hagen, P. (2015). MLB issues recommendations on netting.

From http://m.mlb.com/news/article/159233076/mlb-issues-recommendations-on-netting/

Policies (2016). TEAM Coalition. Policies on Alcohol. Retrieved February 19, 2017, from

http://www.teamcoalition.org/training/policies/

Spengler, J. O. (2009). Introduction to sport law. Champaign, IL: Human Kinetics

Stadium Policies/FAQ Orem Owlz Ballpark. (2017). Retrieved February 19, 2017, from

http://www.milb.com/content/page.jsp?

ymd=20090320&content_id=40996772&sid=t519&vkey=team1

Ticket Terms and Conditions Iowa Cubs Tickets. (2017). Retrieved February 16, 2017, from

http://www.milb.com/content/page.jsp?

ymd=20100317&content_id=8821290&sid=t451&vkey=tickets

Wolohan, J. T. (2009). Athletic Business Digital Issue. Retrieved February 19, 2017, from

http://www.athleticbusiness.com/images/digitalissues/0309/