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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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February 20, 2020

Summer J. v. United States Baseball Federation, B282414 & B285029 (Feb. 18, 2020) 
Plaintiff sued the United States Baseball Federation for negligence and premises liability after a foul ball struck her in the face at the national team trials, causing serious injury. There was no protective netting where she was sitting. The Baseball Federation argued plaintiff’s lawsuit was barred because a spectator at a baseball game has assumed the risk of getting hit by a foul ball. The trial court agreed and dismissed plaintiff’s claims.
The Court of Appeal reversed, finding plaintiff sufficiently alleged that the Baseball Federation breached its duty to take reasonable measures to increase the safety of spectators and minimize the risk of injury without altering the nature of the sport. The court explained that “ ‘[a]s a general rule, where an operator can take a measure that would increase safety and minimize the risk of the activity without also altering the nature of the activity, the operator is required to do so.’ ”  The court held that the provision of adequate protective netting in a perceived zone of danger—behind home plate and at ground level along the first- and third-base lines—would increase safety and minimize the risk of injury without altering the nature of baseball. The court remanded to permit plaintiff to file an amended complaint alleging the Baseball Federation breached its duty by failing to provide adequate netting.
The modern assumption of risk doctrine, adopted by the California Supreme Court in Knight v. Jewett (1992) 3 Cal.4th 296  and Ford v. Gouin (1992) 3 Cal.4th 339, has developed over the years as the California appellate courts continue to shape the law in this area on a case by case basis. For additional information, contact David Axelrad, 818-995-0800,