A recent Cuyahoga County Court of Appeals case distinguishes implied assumption of the risk with the primary assumption of the risk/recreational activity defense discussed in an earlier post here, and recently at Eugene Volokh’s Washington Post blog here.
In July 2012 a spectator was injured by a foul ball at a Cleveland Indians game. As discussed in my earlier post, the Cleveland Indians would generally be immune from liability for the fan’s injuries. However, in Rawlins v. Cleveland Indians Baseball Company, Inc., 2015-Ohio-4587, the Cuyahoga County Court of Appeals found that the trial court erred in granting summary judgment in favor of the Indians on the basis of the doctrine of primary assumption of the risk.
Reds fans may recall that during fireworks Fridays at the Reds games, the ushers and public address announcer wait until after the final out before asking fans near the fireworks to move from their seats. As Sam Wyche once said, “You don’t live in Cleveland.” The ushers at the Indians game may have jumped the gun in moving fans out of certain sections in preparation for the fireworks show. I say may have because there was conflicting testimony in depositions. The original complaint alleged that Rawlins was ordered from his seat, but during his deposition he testified that the usher merely stared at him with her hands on her hips, and that he had overheard other people saying the ushers were telling people to leave their seats.
Primary Assumption of the risk means that in activities which involve risk, each participant (or spectator) assumes the risk for any injury resulting from the risk associated with that injury. As the Court in this case referred to it, the Baseball Rule means that getting hit by a foul ball is a risk normally associated with going to a baseball game – whether you are sitting in your seat or walking to the refreshment stand (or being distracted by the San Diego Chicken). But, when you are being ordered to leave your seat before the final out of the game in preparation for the post-game fireworks show, the club has created a circumstance outside the normal routine of baseball game attendance. In those cases, the club may be liable for injuries resulting from being hit by a foul ball.