A little over a year ago, we reported on the case of 6 year old girl who was severely injured by a foul ball at a Braves game in 2010.  Her parents were originally suing the owners of Turner Field for negligence related to the absence of safety netting around the field that would have protected fans from dangerous foul balls entering the stands. We wrote an article discussing how the Court of Appeals allowed the head injury case against the Atlanta Braves to proceed, even though decades of case law said that the spectator takes the risk. The Court essentially said that because a minor cannot assume the risk, the minor still has a case for injury at a game, even if the adult does not.  This case is now in the news again because the plaintiffs are expanding the scope of the suit by adding Major League Baseball as a defendant in the case, in addition to the owners and operators of the stadium itself.

The addition of this national entity is intended to bring up an ugly issue for the entire sport- performance enhancing drugs.  The plaintiffs’ theory of liability is that a juiced-up player is going to hit balls harder and faster than a non-enhanced player would under the same circumstances. Furthermore, Major League Baseball is well aware of this epidemic but has done nothing to protect its fans from the consequences of its players conduct as it relates to foul balls, thus creating a greater likelihood for fans, such as the 6 year old girl in this case, to be injured by an errant ball.  Most interesting is the fact that the player who hit the ball in this case was none other than Melky Cabrera, who served a 50 game suspension two years after this particular incident for testing positive for performance-enhancing testosterone. However, whether Major League Baseball actually owed a legal duty to the injured girl in this case is a question that remains unsettled