Baseball Fans: Even with a Story That Would Have Every Jury on Your Side, You Can't Win a Lawsuit for Getting Hit with a Foul Ball in Houston

Heat-seeking missile.
Heat-seeking missile.

If you get bored at an Astros game this year -- and chances are very good you will -- read the tiny, tiny print on the back of your ticket.

Somewhere in that mountain of impossible-to-read verbiage is notice that by using the ticket, you can't sue if you're hit in the head with a foul ball.

One Houstonian has just learned that lesson from an appeals court, which tossed out her suit despite her having one of the more jury-friendly stories to tell.

Shirley Martinez put together a Minute Maid Park trip for 250 members of the Texas National Guard and their families.

The Astros gave the group free tickets (very nice) in Section 153 (not so nice). Section 153 is the bleachers, behind the right-field fence in fair territory.

Martinez was escorting five kids whose parents were in the Guard to their seats -- five beaming, apple-cheeked American kids, no doubt eagerly clutching mitts, excited to see The American Pastime as a way to take their minds off their parents spending acres of time overseas in the line of fire for the sake of the country.

Again, this would go over with a jury.

Martinez -- whose husband, by the way, serves in the Guard -- was also pushing a kid in a stroller. An Astros employee said she couldn't take the stroller to her seats and instead had to store it in a designated area. She took the kids to their seats, left them under adult supervision and, as she walked back up the aisle towards her stroller, things went wrong, according to the appellate court's summary of her claims:

While her attention was focused on climbing the stairs and her back was to the playing field, she heard someone yell a warning that a fly ball was coming toward her. She shielded the child with her arms and was struck in the face by the ball. She suffered an orbital fracture and corneal laceration.

To sum up: The wife of a no-doubt heroic soldier, who had put together an outing for no-doubt heroic soldiers and their long-suffering families, was escorting happy young kids of some of those heroes and, because of some fussy Astros employee, she had to put her back to the playing field as a batting-practice homer screamed directly towards her head.

Get that woman on the witness stand pronto!!!!!

(The court's opinion is not clear, but we can assume the homer was hit by someone from the visiting team as opposed to an Astro. Unless Jeff Bagwell had dropped by and was goofing off.)   Martinez and her (hero) husband sued, but the Astros got the case tossed out. The Martinezes appealed, but today the First District Court of Appeals held up the lower court's ruling.

The appellate court didn't even depend on the ticket fine print in the reasoning behind the decision. Instead, they cited decades of precedents that have said baseball clubs are not liable if you're hit by a foul ball.

Martinez and her husband argued that Section 153 didn't have a screen in front of it and that there was no sign in the stadium "that identifies the section as unprotected."

The court cited precedents in the case and said the idea of following precedents ("stare decisis") is important:

Stare decisis "results in predictability in the law, which allows people to rationally order their conduct and affairs." That interest is particularly acute here, since the rule announced in Friedman also arose out of a spectator's injuries from a fly ball at an Astros game. Moreover, the rule has been in effect "since the early days of modern baseball." The Astros, therefore, had good reason to rely on this rule in making decisions about protective screening.

The court also said most fans are aware of danger from foul or fair balls and "there is the interest of fans who desire the intimate feeling from sitting as close to the action as possible with the possibility of snagging a ball."

So keep your eyes open, Astro fans. At least while the visiting team is batting.

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