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Fans Strike Out in Suit over MLB Stadium Safety Netting


Two fans struck out with their proposed class action accusing Major League Baseball of failing to protect spectators at ballparks with safety netting after a California federal judge held Wednesday that they didn’t show they’re likely to be hit by a stray ball or bat.

U.S. District Judge Yvonne Gonzalez Rogers concluded that Gail Payne and Stephanie Smith lack standing to seek an order requiring more safety netting and other protective measures at all MLB ballparks, pointing to the league’s evidence indicating that their risk of being injured is very slim.

Robert C. Hilliard, who represents the fans, told Law360 in a Thursday email, “MLB’s victory just means it has sentenced its fans to countless more skull fractures, closed head injuries, and broken jaws.  Eventually, a fan will be killed by a foul ball or broken bat and then MLB will immediately declare surprise, remorse and order all nettings extended.”

Another attorney for the fans, Steve W. Berman, added in a separate email that they plan to appeal.

Representatives for the MLB didn’t immediately respond to requests for comment Thursday.

The judge’s analysis started with Payne, a longtime Oakland Athletics fan who claimed she has to duck foul balls at every game she attends. While she sought an injunction to prevent an injury she might suffer in the future, Payne has never been injured at a game at the Oakland Coliseum and didn’t provide specifics about her plans to attend future games, according to the order.

Those uncertain plans weren't enough to establish injury-in-fact, but even if she does attend future games, the MLB’s evidence showed that her risk of being injured is far below 1 percent, Judge Rogers said.

“Assuming that these statistics remain relatively constant, and the parties have provided no reason to the contrary, the likelihood that Payne will be injured by a foul ball or a bat while attending an A’s game at the Oakland Coliseum does not meet the threshold of ‘certainly impending,’” the judge said.

Her speculative fear of being injured was simply not enough to establish standing, nor was her claim that she can’t enjoy games because she’s too worried about being hit, Judge Rogers concluded. After all, the judge said, Payne could address her fears by sitting in a different section that’s less prone to foul balls entering.

Though Smith was actually injured during a June 2015 L.A. Dodgers game, her efforts to establish standing fared no better, Judge Rogers held. For one, Smith testified that she had no intention of attending another MLB game during the 2016 or 2017 seasons, meaning there was no imminent risk of her being injured, the judge said.

Even if she were to attend future games at Dodger Stadium, the MLB’s data showed that her risk of injury is also far below 1 percent, Judge Rogers held, finding unpersuasive Smith’s argument that up to two people on average were struck at each game at the stadium during the 2015 season.

Ultimately, while Smith’s fear of attending baseball games was understandable, it wasn't supported by the data, meaning it was insufficient to establish standing, the judge concluded. The fact that she was already injured doesn’t increase her risk of future injury; if anything, her awareness of the risks arguably reduces her likelihood of being injured compared with the average attendee, Judge Rogers said.

The MLB, Commissioner of Baseball Rob Manfred and the 30 teams named in the July 2015 complaint moved to dismiss the suit that October and an amended complaint the next month, saying the spectators could have opted to sit in seats behind the protective netting but chose an unobstructed view instead, and any change would take that choice away from other fans.

Judge Rogers agreed to trim the suit in April, holding that the court lacked authority to rule on claims brought against out-of-state clubs. She dismissed allegations against the clubs located outside California but deferred a ruling on whether the spectators lacked standing, asking for more briefing.

In late July, the fans argued that the evidence “demonstrates unequivocally” that they had been negatively affected by the lack of sufficient safety netting, explaining that they feared they’d be struck by a ball and were deprived of their ability to fully enjoy the games as a result.

But the defendants countered in August that those claims weren’t enough to establish standing, contending that the fans failed to demonstrate imminent danger of injury.

The fans are represented by Steve W. Berman, Jerrod C. Patterson and Anthea Grivas of Hagens Berman Sobol Shapiro LLP and Robert C. Hilliard and Marion Reilly of Hilliard Munoz Gonzales LLP.

The defendants are represented by Adam Lauridsen, Thomas E. Gorman and Philip J. Tassin of Keker & Van Nest LLP.

The case is Gail Payne et al. v. Office of the Commissioner of Baseball et al., case number 4:15-cv-03229, in the U.S. District Court for the Northern District of California.