From our living room easy chairs, we are able to view a plethora of sporting events in relative safety, barring the occasional spill or high-five injury. However, if you are willing, from a legal standpoint, to assume the risks, you may also put yourself in the potentially perilous situation of attending one of these events in person.
The backs of the event tickets ominously warn in tiny, barely decipherable fine print that spectators assume all risks incident to attending a game. For example, check the back of your Mariners ticket. You’ll find the following all-purpose and legally effective disclaimer/ warning:
The Holder voluntarily assumes all risk incident to attending a game of Baseball, whether occurring before, during or after the game, including specifically (but not exclusively) the danger of being injured by bats, balls or other objects leaving the field, or by others in attendance. The Holder agrees that Major League Baseball, the Club and its opponent, and the Public Facilities District that owns SAFECO Field, and all individuals affiliated with such organizations, are not liable for injuries, expenses, claims or liabilities resulting from such causes.
Oh, and have fun.
While, to many fans, the “risks” are merely exciting opportunities to catch a souvenir or a player (assuming a front-row seat), a few fans at every game discover that spiraling bats, 100-mph foul balls and 150-mph slap shots present very real dangers and the risk of severe injuries. Seldom does a game go by at Safeco Field that someone is not injured by a foul ball or a batting practice homerun or in the ensuing melee. They don’t have paramedics on bicycles for nothing.
Spectators who attend games are “invitees” to whom the owner of the premises owes a duty of reasonable care; hence, the warning on the back of the ticket, the announcement before the start of the game (replete with a silent-film takeoff starring the Mariner Moose), and various protective devices at the sporting venues. As a corollary, however, spectators assume the risk of injuries that result from common hazards and perils inherent in the sport they are watching. For example, the law in Washington has long been that baseball stadiums have a duty to screen some seats, and a spectator who takes a seat in the unscreened portion of a stadium assumes the risk of being struck by a baseball.1
A sport spectator’s assumption of risk and a defendant sports team’s duty of care are governed by the doctrine of primary assumption of risk.2 The doctrine of assumption of risk serves as a complete bar to recovery when an injury results from a risk inherent in the activity in which the plaintiff is engaged or attending. Importantly, courts have held that such “inherent risks” include: foul balls, errant pucks, flying bats, flailing players and even airborne promotional t-shirts.
Although a fan must know the risk before it can be assumed, he or she cannot deny knowledge of the obvious. In Perry v. Seattle School District,3 assumption of risk barred a negligence claim brought against a school district by a grandmother, who was permanently injured while attending her grandson’s high school football game, even though she was not familiar with the sport and had only watched one other game in her life. The plaintiff, who was standing on the field a foot behind the sideline, was thrown down to the ground when struck by two players going out of bounds.
The court found the plaintiff had voluntarily assumed the risk of injury by standing in close proximity to the sidelines because she had previously seen a game and “anybody who had ever seen an entire football game must know that some plays go out of bounds.”4 The court further noted that by “entering freely and voluntarily into any relation or situation which presents obvious danger, the plaintiff may be taken to accept it.”5
Implied primary assumption of risk arises where the plaintiff has impliedly consented to relieve the defendant of a duty regarding specific known and appreciated risks.6 Under implied primary assumption of risk, the defendant must show that the plaintiff had full, subjective understanding of the specific risk, both its nature and presence, and that he or she voluntarily chose to encounter the risk.
Unlike contributory negligence, where the standard applied is that of a reasonable person of ordinary prudence, implied primary assumption of risk applies a subjective standard, one specific to the plaintiff and his or her situation.7 In short, the question is whether the plaintiff, at the time of decision, actually and subjectively knew all facts that a reasonable person in the defendant’s shoes would know and disclose.8
In Taylor v. Baseball Club of Seattle,9 implied primary assumption of risk barred a negligence action against the Mariners by a spectator who was injured by a ball errantly thrown into the stands by pitcher Freddy Garcia during the teams’ pregame warm-up. The court found warm-up was a necessary and inherent part of the game and the spectator’s familiarity with baseball made the risk of injury foreseeable, even if no one associated with the team had ever seen anyone hit by an overthrown ball during pitchers’ pregame ritual known as “long toss.”10
The court rejected the spectator’s contention that she was aware only of the risk of injury associated with sitting in an unscreened section of the stadium (four rows up from the field) during the game, but was not aware she could be injured during warm-ups. The court found the risk of injury in such circumstances would be foreseeable to a reasonable person with the spectator’s familiarity with baseball. The plaintiff had attended many of her own sons’ baseball games, had witnessed balls entering the stands, had watched Mariner games both at the Kingdome and on television, and knew that there was no screen protecting her seats, which were close to the field.11
Therefore, fans who choose to go to a sporting event must be willing to assume the risks of obvious dangers inherent in the sport, as well as the dangers they subjectively will be deemed to have been aware of. For most fans, the “risk” is part of the excitement. This is why the front-row seats are the most sought-after and why fans sit optimistically in the outfield with their gloves in hand. Those who are unwilling to assume the risks, or who are queasy at the prospect of stopping a ball with the side of their face, should consider staying home to watch the game from the comfortable safety (relatively speaking) of their own couch.
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Tracy Thompson, a summer associate with Ogden Murphy Wallace, PLLC, is a student at Seattle University Law School. She can be reached at thomps10@seattleu.edu.
- 1 See Leek v. Tacoma Baseball Club, Inc., 38 Wn.2d 362, 229 P.2d 329 (1951).
- 2 Taylor v. Baseball Club of Seattle, L.P., 132 Wn. App. 32, 130 P.3d 835 (2006).
- 3 66 Wn.2d 800, 505 P.2d 589 (1965).
- 4 Id. at 809.
- 5 Id. at 808.
- 6 Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 497, 834 P.2d 6 (1992).
- 7 Home v. N. Kitsap Sch. Dist., 92 Wn. App. 709, 720, 965 P.2d 1112 (1998).
- 8 Erie v. White, 92 Wn. App. 297, 303, 966 P.2d 342 (1998).
- 9 132 Wn. App. 32, 130 P.3d 835 (2006).
- 10 Id. at 40.
- 11 Id.
