PRESENT: All the Justices
DONNA P. THURMOND
v. Record No. 020116 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 10, 2003
PRINCE WILLIAM PROFESSIONAL
BASEBALL CLUB, INC., ET AL.
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge
In this appeal, we consider whether the trial court erred
in awarding summary judgment to the defendants in a negligence
action on the ground that the plaintiff, a spectator at a "minor
league" baseball game, assumed the risk of being struck by a
batted "foul" ball.
Because this case was decided by summary judgment, we will
state the facts, and the inferences from the facts, that are
most favorable to the nonmoving party, Donna P. Thurmond.
However, we will not employ inferences that are forced,
strained, or contrary to reason. Dudas v. Glenwood Golf Club,
Inc., 261 Va. 133, 136, 540 S.E.2d 129, 130-31 (2001); Lindsay
v. McEnearney Assocs., 260 Va. 48, 50, 531 S.E.2d 573, 574
(2000).
In August 1997, Thurmond attended a night baseball game
conducted by the Prince William Professional Baseball Club,
Inc., doing business as the Prince William Cannons (the
Cannons), at the G. Richard Pfitzner Stadium (the stadium) in
Prince William County. The Cannons are a "Class A" minor league
professional baseball team affiliated with the St. Louis
Cardinals, L.P. (the Cardinals), of "Major League Baseball." 1
The Cardinals contracted with the Cannons to provide the Cannons
with players and coaches as part of the Cardinals' player
development program.
In the stadium, spectators were warned of the risk of being
struck by objects batted or thrown from the field. Warning
signs, measuring three feet by three feet, were posted at
entrances to the seating areas. These signs stated: "Be Alert!
Objects batted or thrown into the stands may be dangerous." All
persons entering the stadium walked past one of these entrances,
regardless of the location of their seats.
In addition, the back of each admission ticket contained a
printed warning that stated, in relevant part:
The holder of this ticket assumes all risk and danger
incidental to the game of baseball . . . including
specifically (but not exclusively) the danger of being
injured by thrown bats, thrown or batted balls, . . .
and agrees that the participating clubs or their
officials, agents and players are not liable for
injury related from such causes.
1
We recognize that there is no legal entity known as "Major
League Baseball." However, this term is ordinarily used to
refer to the joint operations of the American League of
Professional Baseball Clubs, Inc., and the National League of
Professional Baseball Clubs, Inc. Minnesota Twins P'ship v.
State, 592 N.W.2d 847, 849 n.1 (Minn. 1999.)
2
Twenty to thirty seats were reserved for each game in the
screened area behind home plate for those spectators who
requested to be reseated because they were not comfortable
sitting in the unscreened areas of the stadium.
Thurmond sat with her family and friends "high in the
bleachers" on the third base side of the stadium. This was
Thurmond's first visit to the stadium, and she did not know that
she could have requested a seat in the screened area behind home
plate. She also did not read the warning printed on the back of
the admission ticket because she never had possession of her
ticket, which her friends had given to her husband. However,
Thurmond remained alert at all times during the game, watching
the hitters and batted baseballs.
During the eighth inning, a "line drive foul" ball was
batted toward Thurmond. Although Thurmond saw the baseball
approaching in her direction, the ball was moving too rapidly to
allow her to take any evasive action. The ball struck Thurmond
directly on the right side of her face, and she sustained
various injuries, including fractures of her facial bones,
damage to her right eye socket, and extensive nerve damage.
Thurmond filed a motion for judgment in the trial court
against the Cardinals and the Cannons. She alleged that she was
injured as a result of the defendants' negligence in failing to
provide adequate warnings at the stadium and to operate and
3
maintain the stadium in a safe condition to prevent injuries to
invitees. In response, the defendants filed a motion for
summary judgment on various grounds, including the argument that
Thurmond assumed the risk of injury as a matter of law when she
chose to sit in an unscreened area of the stadium. 2
In opposing the defendants' summary judgment motion,
Thurmond asserted that the issue whether she voluntarily exposed
herself to a known risk could not be resolved without her
testimony at a trial. She also argued that a decision on
summary judgment was inappropriate because there remained
several factual disputes concerning the adequacy of the stadium
facility and the warnings provided by the defendants.
Thurmond further asserted that the stadium's field
dimensions did not meet the minimum standards specified in the
Major League Rules (the rules), which the Cannons' organization
was bound to follow by their player development contract with
the Cardinals. Thurmond contended that the rules required a
minimum distance of 60 feet between home plate and the
"backstop," and between the third base line and the spectator
stands, and that the stadium did not comply with these
2
There were other named defendants, who were dismissed
without prejudice from the case by order of nonsuit before the
trial court's ruling on the defendants' summary judgment motion.
4
requirements. The distance at the stadium between home plate
and the "backstop" was 53 feet, eight inches. 3
In her designation of expert witnesses, Thurmond identified
David H. Fried, "a sports and recreation safety consultant."
According to Thurmond, Fried was expected to testify that the
defendants "knew, or should have known, that the playing area
was too close to the grandstand and spectators." Thurmond also
stated that Fried would testify that "had the playing field
conformed to minor league baseball standards in regard to its
location within the stadium . . . or had [Thurmond] been
properly or sufficiently warned . . . it is probable that she
would not have sustained injury as she did."
In response to Thurmond's assertions, the defendants
argued, among other things, that the rules concerning playing
field dimensions and lighting conditions were promulgated to
ensure uniformity of conditions for the benefit of the players,
not for the safety of the spectators seated in the stands. The
defendants also asserted that the rules merely recommended,
rather than required, a distance of 60 feet between the foul
lines and the stands, and between home plate and the "backstop."
3
Although the record does not show the distance between the
third base line and the spectator stands, Thurmond's counsel
agreed during oral argument in this case that this distance was
about "five to six feet" less than the 60-foot requirement.
5
The trial court awarded summary judgment in favor of the
defendants holding that, as a matter of law, Thurmond assumed
the risk of being struck and injured by a batted "foul" ball.
Thurmond appeals.
Thurmond argues that the trial court erred in granting the
defendants' motion for summary judgment because there remained
disputed issues of fact that were material to the issue of the
defendants' negligence. She contends that those disputed issues
included the adequacy of the stadium lighting, the field
dimensions, and the need for warnings that were not provided by
the defendants. Thurmond asserts that resolution of these
disputed factual issues was required before the trial court
could determine whether she assumed the risk of injury under the
subjective test articulated by this Court.
In response, the defendants argue that, as a matter of law,
Thurmond assumed the risk of being injured by a batted "foul"
ball. The defendants argue that the stadium lighting, field
dimensions, and the content of the warnings Thurmond received
did not present genuine issues of fact because the risk of
injury from a batted "foul" ball was necessarily apparent to
Thurmond as a matter of common sense.
In deciding this issue, we first state the general
principles that govern our inquiry. In this Commonwealth, a
person's voluntary assumption of the risk of injury from a known
6
danger operates as a complete bar to recovery for a defendant's
alleged negligence in causing that injury. Arndt v. Russillo,
231 Va. 328, 332, 343 S.E.2d 84, 86 (1986); Landes v. Arehart,
212 Va. 200, 202-03, 183 S.E.2d 127, 129 (1971). Application of
the defense of assumption of risk requires use of a subjective
standard, which addresses whether a particular plaintiff fully
understood the nature and extent of a known danger and
voluntarily exposed herself to that danger. Hoar v. Great E.
Resort Mgmt., Inc., 256 Va. 374, 390, 506 S.E.2d 777, 787
(1998); Young v. Lambert, 253 Va. 237, 241, 482 S.E.2d 823, 826
(1997); Artrip v. E.E. Berry Equip. Co., 240 Va. 354, 358, 397
S.E.2d 821, 824 (1990). Thus, the defense of assumption of risk
ordinarily presents a jury question, unless reasonable minds
could not differ on the issue. Young, 253 Va. at 241, 482
S.E.2d at 826; Waters v. Safeway Stores, Inc., 246 Va. 269, 271,
435 S.E.2d 380, 381 (1993); Holland v. Shively, 243 Va. 308,
311, 415 S.E.2d 222, 224 (1992); see Hoar, 256 Va. at 389-90,
506 S.E.2d at 787.
We also emphasize that summary judgment is a procedure that
may be employed only when there are no material facts genuinely
in dispute. Rule 3:18; Brown v. Sparks, 262 Va. 567, 571, 554
S.E.2d 449, 451 (2001); Majorana v. Crown Cent. Petroleum Corp.,
260 Va. 521, 525, 539 S.E.2d 426, 428 (2000); Slone v. Gen.
Motors Corp., 249 Va. 520, 522, 457 S.E.2d 51, 52 (1995).
7
Therefore, as part of our review of the trial court's conclusion
that Thurmond assumed the risk of injury as a matter of law, we
must determine whether there were any disputed facts material to
the resolution of that issue.
We hold that the arguments advanced by Thurmond, including
the adequacy of warnings provided by the defendants, and
questions involving the lighting conditions and field dimensions
at the stadium, do not present issues of fact that are material
to the conclusion of law that we reach here. As explained in
Brisson v. Minneapolis Baseball & Athletic Ass'n, 240 N.W. 903
(Minn. 1932):
No one of ordinary intelligence could see many innings
of the ordinary league game without coming to a full
realization that batters cannot, and do not, control
the direction of the ball which they strike and that
foul tips or liners may go in an entirely unexpected
direction. [One] could not hear the bat strike the
ball many times without realizing that the ball was a
hard object. Even the sound of the contact of the
ball with the gloves or mitts of the players would
soon apprize him of that.
Id. at 904. The great weight of authority from other
jurisdictions reflects the general rule that as a matter of law,
a spectator assumes the normal risks of watching a baseball
game, which includes the danger of being hit by a ball batted
into an unscreened spectator area. 4 See, e.g., Quinn v.
4
In many of these jurisdictions, the general rule has been
articulated further to impose on a stadium owner or operator a
"limited duty" to screen the area behind home plate and to offer
8
Recreation Park Ass'n, 46 P.2d 144, 146-47 (Cal. 1935); Hunt v.
Thomasville Baseball Co., 56 S.E.2d 828, 829 (Ga. Ct. App.
1949); Shaw v. Boston Am. League Baseball Co., 90 N.E.2d 840,
842 (Mass. 1950); Anderson v. Kansas City Baseball Club, 231
S.W.2d 170, 173 (Mo. 1950); Hobby v. City of Durham, 569 S.E.2d
1, 2 (N.C. Ct. App. 2002); Simpson v. City of Muskogee, 879 P.2d
1269, 1270-71 (Okla. Ct. App. 1994); McNeil v. Fort Worth
Baseball Club, 268 S.W.2d 244, 246-47 (Tex. Civ. App. 1954);
Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013, 1016 (Utah
1995).
We adopt this general rule for application in Virginia, in
the context of the subjective focus of this Commonwealth's
assumption of risk doctrine. As stated above, this doctrine
requires us to consider whether a particular plaintiff fully
understood the nature and extent of a known danger and
voluntarily exposed herself to that danger. 5 Hoar, 256 Va. at
390, 506 S.E.2d at 787; Young, 253 Va. at 241, 482 S.E.2d at
a sufficient amount of seating for spectators who reasonably may
be anticipated to request protected seats in the course of an
ordinary game. See, e.g., Benejam v. Detroit Tigers, Inc., 635
N.W.2d 219, 222-23 (Mich. Ct. App. 2001); Akins v. Glens Falls
City Sch. Dist., 424 N.E.2d 531, 533-34 (N.Y. 1981); Lawson v.
Salt Lake Trappers, Inc., 901 P.2d 1013, 1015 (Utah 1995).
5
In Nelson v. Great Eastern Resort Management, Inc., 265
Va. ___, ___, ___ S.E.2d ___, ___ (2003) (this day decided), we
again emphasized the subjective focus of the doctrine of
assumption of the risk, and we rejected the doctrine of
"inherent risk" and its apparent reliance on an objective
9
826; Artrip, 240 Va. at 358, 397 S.E.2d at 824. Thus, we hold
that when a particular adult spectator of ordinary intelligence
is familiar with the game of baseball, that spectator assumes
the normal risks of watching a baseball game, including the
danger of being hit by a ball batted into an unscreened seating
area of a stadium.
We apply this rule in the context of Thurmond's pleadings
and concessions in this case. We conclude that reasonable
persons could not disagree that Thurmond, who conceded that she
remained alert throughout the game and observed hitters and
batted balls for more than seven innings before being injured,
was familiar with the game of baseball, knew the risk of being
injured by a batted ball, and voluntarily exposed herself to
that risk by remaining seated in an unscreened area.
We disagree with Thurmond's argument that this general rule
should not apply to her case because the allegedly deficient
lighting conditions and playing field dimensions were not normal
hazards, and that she was entitled to prove at a trial that she
did not knowingly assume these risks. First, the field lighting
conditions are not material to a resolution of this case because
Thurmond conceded in the trial court that she saw the baseball
approaching in her direction before it struck her.
standard in determining a plaintiff's knowledge and acceptance
of a particular risk.
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Second, the variance in field dimensions was not material
to the hazards created by the uncertain course of every batted
ball's trajectory, a hitter's lack of control over each ball's
direction of travel, or the force with which any batted ball can
be hit into an unscreened spectator area. Moreover, Thurmond
was not seated in the six-foot area of the spectator stands that
she contends should have been part of the playing field. Thus,
we hold that Thurmond knew and voluntarily exposed herself to
the hazards of the game by remaining in the unscreened area
after watching seven innings of play from that unprotected
location.
In addition, we observe that Thurmond's argument regarding
the field dimensions, and their materiality to the issues of the
defendants' negligence and whether she assumed the risk of
injury, rests on certain logical fallacies. First, her argument
requires speculation that compliance with field specifications
would have resulted in her seat and row being located farther
from the field, rather than being located in the same place with
no seating provided in the six-foot area of the stands next to
the playing field.
The second logical fallacy in Thurmond's argument regarding
the field dimensions is evidenced by her counsel's statements
during oral argument in this appeal that Thurmond was seated
"high up in the stands," and that the playing field was "closer
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to her by some five to six feet than it should have been."
Given these conceded facts, the slightly smaller field
dimensions did not expose her to a different risk of injury
because she was seated "high up in the stands," far behind the
additional six-foot area allegedly required by the relevant
field specifications.
Accordingly, we hold that the trial court did not err in
awarding summary judgment to the defendants, because Thurmond's
assumption of the risk was a complete bar to her recovery in
this negligence action. We will affirm the trial court's
judgment.
Affirmed.
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