When Baseball is a Bone Breaking vs. a Heart Breaking Experience, who is Responsible?

By: Stephen D. Richman, Senior Counsel-Kohrman, Jackson & Krantz, PLL

While a good deal of the heartbreak from our beloved Cleveland Indians just missing another World Series victory is behind us, some fans have had more than their hearts break as a result of an Indians baseball game.

In the recent case of Rawlins v. Cleveland Indians Baseball Co., Inc., 2015 Ohio 4587 (Cuyahoga County) the Eighth District Court of Appeals was faced with the question of whether the owner of property (the Cleveland Indians) was liable for injuries sustained by Keith Rawlins during an Indians baseball game.

Besides being “die hard Indians fans,” this article is in our real estate blog because it deals with the general issue of “premises liability”. Generally, in Ohio, all property owners/occupants are responsible for maintaining safe conditions for the people visiting their property and can be held liable for certain injuries on their property. The degree of responsibility (“duty of care”) depends on multiple factors, most notably who has entered on to the land, be it a social guest/invitee, a licensee, or a trespasser.  The duty of care might be as easy as posting a sign, and as costly as re-paving a parking lot to change its grade.

Of course, there are always exceptions to the general rule, and this holds true with regard to premises liability.

One such exception worthy of discussion is the one at issue in the Rawlins case, known as “the Baseball Rule.” The Baseball Rule is actually the name for the more recognizable defense to premises liability negligence claims (i.e., primary assumption of the risk) in sporting event situations. Under this doctrine, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in such activity unless the defendant acted recklessly or intentionally in causing the injuries. Injury claims resulting from a foul ball at a baseball game, tripping on a root during a nature night hike, or from a roller skating collision are examples of negligence claims which could be effectively barred by the defense of assumption of the risk.

Are there exceptions to the exception? Are there specific circumstances caused by the property owner that call into question whether or not the injured party truly assumed the risk?

These were the basic issues presented to the Eighth District Court of Appeals in Rawlins.

The facts of the case are as follows: In July of 2012, Keith Rawlins bought tickets for himself and his daughter to the Indians game against Baltimore. It was a night game, with a fireworks show scheduled for after the game. The tickets Rawlins purchased were for seats located on the third-base side of the field in Section 171 and, therefore, were subject to closure for the post-game fireworks show. In his complaint, Rawlins alleged that at the top of the ninth inning, an usher ordered them to immediately vacate their seats. In a later deposition, however, Rawlins testified that an usher came to the end of the row where he and his daughter were seated and “just stood there with her arms folded” “or hands on her hips” and stared at him, seemingly delivering a message to move. Nevertheless, when Rawlins and his daughter left their seats at the top of the ninth inning, Mr. Rawlins was struck by a foul ball. Rawlins maintained that the accident occurred because they were ordered out of their seats due to the post-game fireworks show.

In November, 2013, Rawlins filed a negligence action against the Cleveland Indians as a result of injuries Rawlins sustained after he was hit by the foul ball. In November, 2014, the Cleveland Indians filed a motion for summary judgment (basically, this is a request for an early dismissal of an action based on law), contending that the action was barred by the defense of primary assumption of the risk. In January, 2015, the trial court granted the Cleveland Indians’ motion for summary judgment. Rawlins then appealed to the Cuyahoga County Court of Appeals.

Rawlins argued that the doctrine of primary assumption of the risk does not apply when there are attendant circumstances caused by the property owner that are not inherent to the game of baseball. Rawlins claimed that the order to move out of their seats constituted the attendant circumstances.

In arriving at its decision to overrule the trial court’s decision of summary judgment in favor of the Cleveland Indians, the court in Rawlins first analyzed cases that applied the general rule and supported the position of the Indians, namely, that “baseball is an inherently dangerous activity and that the spectator is in the best position to protect him or herself from injury at a baseball game.” According to the Rawlins court, “The consensus of … opinions is to the effect that it is common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be thrown or batted outside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof. This theory is fortified by the fact that such spectators can watch the ball and can thus usually avoid being struck when a ball is directed toward them.”

The court in Rawlins, however, also analyzed a prior Supreme Court of Ohio decision (that it believed dispositive of the Rawlins case) that seemingly establishes an exception to the “primary assumption of the risk rule”. That case is Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1925). In Eno, the spectator was injured by a baseball during the intermission of a double-header that was hit by a player practicing near the unscreened portion of a stadium grandstand. The Ohio Supreme Court concluded that the facts in Eno presented a materially different situation from the general rule, and that there was a question of fact whether the stadium owner was responsible for allowing players to practice in close proximity to the grandstand during an intermission when the scheduled games were not being played.

Citing other Ohio Supreme Court decisions that followed Eno, the court in Rawlins also recognized that “In many situations, as in Eno, there will be attendant circumstances that raise questions of fact whether an injured party assumed the risk in a particular situation.”

The Cleveland Indians disagreed with Rawlins’s attendant circumstances theory. The ball club contended that fireworks shows are a common phenomenon of modern baseball, and introduced precedent in the form of a Second Appellate District case that held that even though a patron was distracted by a mascot when the patron was hit by a foul ball, mascots are part of, and inherent to baseball and accordingly, the patron still had a duty to be vigilant.

In overruling the trial court, the court in Rawlins agreed that there is an exception to the primary assumption of the risk doctrine (as applied in the Eno case), however, it held that whether or not the Indians did in fact order Mr. Rawlins from his seat, and whether or not the order to relocate because of the fireworks was an attendant circumstance not inherent to baseball were questions of fact that would need to be heard by the trial court.

In other words, based upon the holding in Rawlins, “under the assumption of the risk doctrine, the sponsor of a sporting event has a duty “‘not to increase the risk of harm over and above the inherent risk of the sport,’” and whether or not the risk of harm is so increased is a genuine issue of fact.

So what is the moral of this story? Simply remember that hot coffee is hot, a fish entrée is bound to include bones, and baseballs are bound to be flying overhead during a baseball game, which in the 21^st century includes mascots, fireworks and hopefully more World Series games for the Cleveland Indians.

CHECK MUNICIPAL LAW, BEFORE YOU PROCLAIM OHIO LAW PROVIDES NO DUTY TO REMOVE ICE AND SNOW

It is not surprising that in Ohio, we have a lot of “ice and snow cases”, because… we get a lot of ice and snow. I know, the nerve of me to bring this up in August, but the recent Ohio Court of Claims case, Scolaro v Ohio University (Case No. 2015-00304-August 11, 2015) reminds us that: 1) odds are good that it will snow again in a few months; and 2) there are exceptions to the “no duty to remove natural accumulation of ice and snow, general rule.” 

The leading case of the “no duty to remove natural accumulation of ice and snow general rule” is Brinkman v. Ross, 68 Ohio St.3d 82 (1993). In Brinkman, the Ohio Supreme Court held: the “homeowner has no common-law duty to remove or make less hazardous natural accumulation of ice and snow on private sidewalks or walkways on homeowner's premises, or to warn those who enter upon premises of inherent dangers presented by natural accumulations of ice and snow, regardless of whether the entrant is a social guest or business invitee.”

In the Brinkman case, the Brinkmans were invited to the Ross home during the winter. The Rosses knew that the sidewalk into the house was covered by a sheet of ice, which in turn was covered by snow, but never warned the Brinkmans. While walking on the sidewalk between the driveway and the Ross home, Carol Brinkman slipped on the snow-covered ice and fell, sustaining serious injuries. Ms. Brinkman sued and lost at the trial court stage, but appealed that decision. The court of appeals in Brinkman agreed with the plaintiff who admitted the snow/ice had accumulated naturally, but claimed the Rosses had a duty to disclose the dangerous situation that they knew about. The Ohio Supreme Court reversed the decision of the appellate court on the basis of law, and common sense, as if to say: “Who does not know that snow and ice are slippery?”  Actually, the Ohio Supreme Court put it more eloquently, by stating: “As a matter of law, the guest is charged with sufficient knowledge of the hazards to be required to protect herself against falls."

While the rule of law in Brinkman seems clear, judicial decisions are no different than the seemingly clear wishes of Aladdin’s genie which came with a few “exceptions, provisos and quid pro quos.” The case in Scolaro reiterates the “statutory law exception” to the “no duty to remove snow and ice general rule” in Ohio. Basically, in cases where a municipality or local government has a law requiring snow and ice removal, there is a statutory duty to remove, failing which will render the offender negligent per se (a basic legal principle basically holding that violation of  a criminal law that assesses penalties = negligence).  

In Scolaro, Hannah Scolaro of Akron sued Ohio University in the Ohio Court of Claims after she fell on the ice (on a campus bus-stop sidewalk) and damaged her front teeth, resulting in root canals, crowns and other dental work totaling approximately $3,000. Scolaro claimed the school was negligent for failing to remove snow and ice on its sidewalks, and asked the court to make the school pay for her dental bill. Apparently, other sidewalks on campus had been salted, but not the bus-stop sidewalk.

The Ohio University claimed Scolaro should have been aware of weather hazards and taken better precautions. Legally, the university relied on the Ross decision. Scolaro argued that the school should have done a better job protecting the safety of its students, especially when there is a law requiring them to do so. The Court of Claims agreed with Scolaro. According to the court, “While Ross remains the law in Ohio, there is an exception. Ross is limited in cases where a municipality or local government has enacted a safety statute requiring snow and ice removal. Athens, where OU is located, is one of these municipalities.”

What is the moral of this story? When it snows again, don’t forget the exceptions, provisos and quid pro quos to the “no duty to remove accumulations of ice and snow general rule” of Ross v Brinkman. Basically, they are: 1) the statutory law exception of Scolaro v Ohio University; 2) a lease or other contract may create a duty/obligation to remove ice and snow; 3) if you undertake to remove snow/ice, you can be held liable if you do so negligently, or in a way that makes the area more hazardous than it had been without your efforts at snow removal; and 4) you may be held liable for unnatural accumulations of ice which result, for example from the negligent design of a parking lot (See Cain v. McKee Door Sales, 2013-Ohio-4217).

Ohio Snow and Ice; to Remove or not to Remove, that is the Question

(assuming you can get out of your drive)

As we dig out from under our latest snowfalls, it seems appropriate to summarize the relatively recent Franklin County Court of Appeals decision in Cain v. McKee Door Sales, 2013-Ohio-4217, and other cases dealing with premises liability for injuries due to accumulation of ice and snow.

As aptly pointed out by the Court in Cain, “the Supreme Court of Ohio has made liability [in snow and ice cases] very hard to establish.” In Brinkman v. Ross, 68 Ohio St.3d 82 (1993; the leading case on this issue), the Ohio Supreme Court held: the “homeowner has no common-law duty to remove or make less hazardous natural accumulation of ice and snow on private sidewalks or walkways on homeowner's premises, or to warn those who enter upon premises of inherent dangers presented by natural accumulations of ice and snow, regardless of whether the entrant is a social guest or business invitee.”

In the Brinkman case, the Brinkmans were invited to the Ross home during the winter. The Rosses knew that the sidewalk into the house was covered by a sheet of ice, which in turn was covered by snow, but never warned the Brinkmans. While walking on the sidewalk between the driveway and the Ross home, Carol Brinkman slipped on the snow-covered ice and fell, sustaining serious injuries. Ms. Brinkman sued and lost at the trial court stage, but appealed that decision. The court of appeals in Brinkman agreed with the plaintiff who admitted the snow/ice had accumulated naturally, but claimed the Rosses had a duty to disclose the dangerous situation that they knew about. 

The Ohio Supreme Court in Brinkman reversed the decision of the appellate court on the basis of law, and common sense, as if to say: “Who does not know that snow and ice are slippery?”  Actually, the Ohio Supreme Court put it more eloquently, by stating: “As a matter of law, the guest is charged with sufficient knowledge of the hazards to be required to protect herself against falls."

The facts of the case in Cain are a little more involved. Betty Cain fell on snow and ice in the parking lot at the office of her eye doctor. She was seriously injured, and as a result, she sued various entities affiliated with the office building. In her affidavit, Ms. Cain stated that she approached her car from the rear, and as she was reaching for her door, she slipped and fell on the snow and ice that had accumulated in the drainage swale of the parking lot.  While the basic facts in Cain are somewhat similar to the basic facts in Brinkman, counsel for Ms. Cain argued that the construction of the parking lot was improper or improperly designed, resulting in a trough (or swale) in the parking lot which accumulated snow, ice and water in what constituted an unnatural accumulation. Experts testified to this “unnatural phenomenon”. The trial court relied on Brinkman, and granted summary judgment in favor of the defendants. Ms. Cain then appealed.

In reversing the trial court’s summary judgment, the Franklin County Court of Appeals held that there was a genuine issue of material fact as to whether or not Ms. Cain fell on an unnatural accumulation of ice which resulted from the design of the parking lot, and accordingly remanded (sent back) the case to the trial court for further appropriate proceedings. In other words, the court of appeals simply recognized that there is an exception to the rule (for “unnatural accumulations”) and awarded the defendants their day in court to try and prove it.

Would these cases have come out any different in a landlord-tenant situation? Based on Ohio case law, probably not, with two exceptions.  One, if the landlord has promised in its lease to clear snow and ice from the premises, then yes, the landlord can be sued if he fails to live up to his contractual obligations. Two, if a landlord decides to remove ice and snow, without an obligation in the lease to do so, he then has a duty to use ordinary care not to create a hazard or to aggravate an existing hazard. Such a hazard would constitute an unnatural accumulation.

Actually, whether or not in a landlord tenant situation, anyone that undertakes to remove snow/ice can be liable for a slip and fall if they have done so negligently, or in a way that makes the area more hazardous than it had been without the efforts at snow removal.

What is the moral of this story? Never shovel or “de-ice”? There are some who subscribe to that theory. However, before you decide to take such an approach, you should note:1) A lease or other contract may create the duty/obligation to remove ice and snow; 2) your applicable municipality may have snow removal ordinances. If your city or township has such an ordinance that requires you to keep walkways free of snow and ice, then you have a responsibility to maintain the same. In fact, some Ohio cities with snow removal ordinances levy fines for not removing snow in a timely manner; and 3) if you have a good insurance policy, why not listen to your mother and be nice to your neighbors.

Unruly Horse Renders Stable Owner Immune from Liability for its Unruly Dog

Prior to the twentieth century, the old adage- “every dog gets one free bite” was in effect in most jurisdictions. In other words, a dog owner was only held liable for his dog's biting someone if the owner had reason to know the dog would bite.

In Ohio, as of the date of this article, Ohio’s law governing unruly dog behavior is the opposite of the old “one free bite rule.” Pursuant to Ohio Revised Code Section. 955.28, to prove a statutory cause of action for injuries caused by another person’s dog, the plaintiff need only prove: (1) ownership or keepership [or harborship] of the dog; (2) that the dog’s actions were the proximate cause of the injury; and (3) damages. This is what is known as a “strict liability statute.

What if the unruly dog’s behavior does not directly result in harm, but causes a horse to be unruly, which then results in injury to a person? In a strange but true “premises liability”action, that very question was before the Court of Appeals for the Ninth Judicial District (Lorain County) in the case of Graham v. Shamrock Stables, 2014-Ohio-3977.

The facts of this case are simple enough; it is the law that is a bit unusual.  In October, 2011, Lethea Graham went to Shamrock Stables to look at a miniature horse for possible adoption. As she was walking  the horse back to its stall (according to Graham), a large dog  began barking and jumping at the horse’s back legs which “spooked” the horse and knocked Graham to the ground, causing serious injuries to two of  Graham’s fingers. Afterwards, Graham and her husband sued Shamrock Stables for the injuries Graham sustained as a proximate result of the dog Shamrock Stables harbored on its property.

Graham claimed Shamrock Stables was liable based upon the “unruly dog statute”, Ohio Revised Code Section. 955.28. Shamrock Stables asserted that the “unruly dog statute” did not apply, because Graham’s injury was the result of equine (horse) activity, and therefore, the “equine immunity statute” applied.

Ohio’s equine immunity statute, R.C. 2305.321, provides immunity from liability for harm sustained by an equine-activity participant allegedly resulting from the inherent risk of equine activities. As explained by a recent Ohio Supreme Court decision: 1) “the phrase ‘equine activity participant’ is broad enough that it encompasses a person controlling in any manner an equine, whether the equine is mounted or unmounted;” and 2) “almost every activity associated with a horse is an equine activity.”  The reason for such a statute, according to the Ohio Supreme Court is that horses are unpredictable, and there are inherent risks that arise when horses are near people.

The trial court agreed with Shamrock Stables, that the equine immunity statute applied, and Graham appealed. The Ninth District Court of Appeals affirmed the trial court’s decision.

To reach its conclusion, the court of appeals in Graham first acknowledged that the issue at hand was deciding, which statute applied-the unruly dog statute, or the equine immunity statute. The court then found its answer in the plain language of the horse immunity statute. The court explained that “one of the inherent risks of an equine activity specifically listed in the statute was the unpredictability of an equine’s reaction to other animals”, and “since the General Assembly did not exempt dogs from the foregoing provision”, the horse’s reaction to the defendant’s dog would qualify as an inherent risk of equine activity, thus triggering the immunity.

The one dissenting judge in Graham asked a very good question in its dissent. “Why should the owner of both the horse and the dog (Shamrock Stables) escape strict liability arising out of the act of the dog, merely because the dog caused injuries via the horse?” The dissenting judge theorized that at issue was a general immunity statute (“horse immunity statute”) and a special provision specifically imposing strict liability on dog owners (the “unruly dog statute”), and that according to precedent, when two statutes, one general, one special cover the same subject matter, the special provision should be construed as an exception to the general statute which might otherwise apply. In spite of a well-reasoned dissent, however, two (judges) against one (judge), always wins.

So what is the moral of this story?  Simply, (in the words of my 10 year old nephew) “Horses rule, dogs drool.” In other words, even if a dog (or other animal) causes a horse to injure its rider (or other participant in an equine activity) the dog’s owner, and horse’s owner are immune from liability, at least when the owner of the dog and the horse are the same person. The dissenting judge’s theory that there would be no issue if a neighbor’s dog had run onto the property and startled the defendant’s horse, injuring Mrs. Graham seems to make a lot of - horse sense.