Imagine you’re at Miller Park, watching an intense baseball game. You’re seated in outfield right in home run territory. You have your glove ready to catch any baseballs that come your way. The Brewers are up to bat at the bottom of the 9th inning. They are down by 2 runs and Carlos Gomez is up to bat. The count is three balls and two strikes with two outs and there are runners on second and third. The very next pitch could determine the outcome of the game.
The ball is pitched right down the line and Gomez makes contact. The ball goes soaring right in your direction. As it approaches, you put your baseball glove in the air to catch it and the next thing you know, you wake up in the hospital.
As the ball was coming into the stands, you missed the catch and the ball hit you right in the forehead causing injury. What do you do? Can you sue for a failure to provide adequate security?
The answer is likely no because Wisconsin adopted the “baseball rule” in Powerless v. Milwaukee County where a spectator was struck by a foul ball. By choosing to sit in that area and attending a baseball game, the spectator assumed the risk of injury and was not able to sue the county or the baseball team owners. In this case, it is not necessary for the Brewers to put up a safety net protecting the spectators in the outfield. Although under these specific circumstances a patron may not be able to bring suit against a proprietor, in other circumstances, businesses may be liable to patrons for a failure to provide adequate security.
On the other hand, when May Lee was trampled and injured as a crowd attempted to catch a foul ball at Milwaukee County Stadium, the Supreme Court of Wisconsin held the stadium was negligent for failure to provide adequate security. Lee v. National League Baseball Club of Milwaukee, Inc., 4 Wis. 2d 168, 170-171, 89 N.W.2d 811, 813 (1958). This situation is different from the previous situation where a patron paid for a seat in an area unprotected by a safety net and assumed the risk of being hit by a baseball because when Lee was injured there were supposed to be ushers present in that area to control the crowd and she was not hit by a baseball. Id. at 177, 89 N.W.2d at 816. Since the ushers could have played a role in controlling the crowd and were not present, the proprietor was held liable. Id. at 171, 89 N.W.2d at 813. Therefore, even two cases involving baseball have distinct analysis.
In determining whether the proprietor of a business exercised ordinary care and provided adequate security, many factors are taken into account. Some examples include the nature of the establishment, the crowd that frequents the business, the history of altercations on the premises, etc. If the nature of the business is such that a proprietor should expect a risk of harm to patrons, the proprietor has a responsibility to take reasonable precautions to protect its patrons. This may require the furnishing of guards or attendants, or taking other necessary precautions to control the actions of the crowd.
Each case typically requires an extensive investigation of criminal activity on and around the site. Expert testimony, in the form of a public safety officer or security consultant, is necessary. Experts can establish not only additional precautions that could have been implemented, but also that these steps would have made a difference and prevented the harm.
One example of a failure to provide adequate security could occur in restaurant where a proprietor of a business is held liable for the acts of one patron assaulting and injuring another. When an injury occurs on the premises, either inside or in a parking lot, it is possible for the proprietor to be held liable. See Bevak v. N.Cent. Food Sys., Inc., 215 Wis. 2d 64, 67, 571 N.W.2d 912, 913 (Ct. App. 1997). Responsibility depends on whether the proprietor exercised “ordinary care” to protect its patrons from injury. In Weihert, only two prior incidents of assault in the restaurant had been reported in six years. Additionally, the incident arose suddenly and there were no warning signs that would allow the proprietor to take steps to minimize the potential harm. Therefore, the proprietor in this specific case was not held liable. However, a similar restaurant in a crime stricken area where multiple incidents occurred each month between the same two customers, the restaurant may have an obligation to provide security for safety of the patrons.
One type of security commonly used to protect businesses is the use of security guards. But, even in cases where attendants or security guards are present, the proprietor may still be negligent. In Pfeifer v. Standard Gateway Theater, 259 Wis. 333, 334, 48 N.W.2d 505, 506 (1951), boys were throwing popcorn boxes in the theater. When the attendant walked into the theater, the boys stopped. Yet, the activity persisted for a substantial length of time and a boy was injured when a wad of paper launched with rubber band hit the child’s eye. The court held that the jury would decide whether the failure of the attendants to control the behavior of the patrons could have prevented the injury. Therefore, in this case it was possible for the proprietor to be held liable despite having an attendant because the proprietor did not act with reasonable care in controlling the incident.
Each case has unique fact patterns that may or may not subject the proprietor of a business to suit for negligence. If you are injured on the premises of a business, there is a possibility that you may have a cause of action against the proprietor. So, the next time you are at a baseball game, remember the standard differs for failure to provide adequate security with respect to each type of business. While one business may require security guards to adequately protect patrons, another business may not even need a safety net.