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Cubs Escape Foul Ball Blindness Suit, But MLB Does Not

The Chicago Cubs have been released from a suit brought by a baseball fan who claims he was blinded in one eye after getting hit by a foul ball during a game at Wrigley Field last summer, but Major League Baseball will continue as a defendant, a Cook County judge ruled on Wednesday.

In December, both the Cubs and MLB argued that they should be dismissed from the suit, saying that John “Jay” Loos’ claims are barred by the Illinois Baseball Facility Liability Act, a decades-old doctrine adopted in many other states that prevents baseball clubs from being responsible for fluke injuries that might occur as part of the game and that did not result from “willful or wanton conduct” on the part of the clubs.

Judge John Callahan Jr. agreed on Wednesday, but only with respect to the Cubs organization, finding that Loos sufficiently stated a cause of action against MLB but not the team.

"The motion is denied as to count one (MLB) and granted with leave to amend as to count two (Cubs)," Judge Callahan's handwritten one-page order said.

Loos was injured at an Aug. 29 Cubs home game against the Pittsburgh Pirates. Loos did not have a ticket to the game, but was let into the ballpark by a friend who worked for the organization. A foul ball hit by a Pirates player allegedly left Loos blind in one eye, in addition to putting him at risk for losing vision in his other eye after many reconstructive surgeries to repair broken facial bones, Loos’ complaint said.

Loos sued both organizations in October, claiming that his injury was caused by negligence on the part of the Cubs and MLB, which failed to install enough netting behind home plate to prevent foul balls from injuring spectators.

But the Cubs and MLB hit back late last year, arguing that the baseball act shields the organizations from suits such as Loos’, except in very narrow instances. Loos was hit by the foul ball when he chose to sit in an unscreened section of Wrigley Field, the organizations argued, and neither the Cubs  nor MLB could be found negligent just because the park itself has unscreened seating.

The Cubs also said that the legislative intent behind the baseball act makes it clear that the lawmakers who introduced and compromised on the bill back in 1992 were explicitly attempting to make sure a baseball team would not be at fault for injuries. Wrigley Field also has signs posted all over that read “Be Alert for Foul Balls!” and the warning is also on the team’s website and tickets.

Loos argued in his October complaint that MLB voluntarily undertook a duty to protect him and other fans when it made recommendations in 2015 concerning ballpark netting. But in December, MLB said those recommendations were entirely too general to establish that the organization owed Loos a legal duty in this case and so it could not be found negligent.

Although the Cubs did install ballpark netting behind home plate, per MLB’s recommendations, Loos said the netting was not wide enough to prevent the foul ball from entering the stands and striking him in the face. But last year the organizations argued that the state’s baseball act’s narrow exceptions for liability could not possibly apply in the case.

In one narrow exception, the organizations argued, a fan could find the baseball club negligent if he or she happened to be injured while seated behind a screen, backstop or similar device in the stadium and the device was defective in a manner other than in width or height. The second narrow exception includes a scenario in which the injury was caused by “willful and wanton conduct, in connection with the game of baseball, of the owner or operator or any baseball player, coach or manager employed by the owner or operator,” the motion said, quoting from the baseball act.

But Loos’ injury was not a result of either of those situations, according to the motion, as evidenced by the fact that he chose to sit in an area without netting in front of him.

A representative for Loos could not be immediately reached for comment on Thursday. An attorney for the Cubs and MLB declined to comment.

Loos is represented by Colin Dunn of the Clifford Law Offices PC.

The Cubs and MLB are represented by Andrew Kassof and Daniel Siegfried of Kirkland & Ellis LLP, and R. Adam Lauridsen, Thomas Gorman and Philip Tassin of Keker Van Nest & Peters LLP.

The case is John Loos v. Major League Baseball and Chicago Cubs Baseball Club LLC, case number 2017-L-10195, in the Circuit Court of Cook County.