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MLB, Cubs Want Out Of Fan's Foul Ball Blindness Suit

18 December 2017

The Chicago Cubs and Major League Baseball asked a Cook County Circuit Court judge on Friday to toss a man's suit claiming that an errant baseball at a Cubs game this summer left him blind in one eye, saying his claims are barred by the Illinois Baseball Facility Liability Act.

John “Jay” Loos sued both organizations in October, claiming the Aug. 29 incident at Chicago’s Wrigley Field was caused by negligence on the part of the MLB and the Cubs, by failing to install enough netting behind home plate to prevent foul balls from injuring spectators. Loos claimed the foul ball hit by a Pittsburgh Pirates player not only left him blind in one eye, but after many reconstructive surgeries to repair the broken facial bones, the vision in his other eye is at risk.

But the Cubs and MLB said Friday that the century-old legal doctrine known as the Baseball Rule, and its 25-year-old codification in Illinois law protects the organizations from Loos’ suit.

“Plaintiff John Loos is a baseball fan who chose to sit in an unscreened section of Wrigley Field and, unfortunately, was injured by a foul ball,” the organizations’ motion to dismiss said. “Now he alleges that the Chicago Cubs Baseball Club, which operates Wrigley Field, and Major League Baseball, which does not, were negligent because they provided patrons with the option of an unscreened seat. Plaintiffs complaint must be dismissed in its entirety under [Illinois law] because his claims are either barred by statute or are otherwise legally deficient.”

Attorneys for both organizations first said that any allegations of responsibility on the part of the MLB should immediately be thrown out, as the MLB owed Loos no legal duty whatsoever.

“MLB owed no duty under a premises liability theory to protect or warn Plaintiff against the risk of injury from errant baseballs at a facility that it did not own or operate,” the complaint said. “MLB also did not owe a general duty of care to Plaintiff because—as a matter of law—its relationship with him was too remote.”

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

Though the Cubs did install ballpark netting in back of home plate, as per the 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 Friday’s motion to dismiss Loss’ case argued that the state’s 1992 Baseball Act’s narrow exceptions for liability could not possibly apply in the instant 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 is defective in a manner other than in width or height. The second narrow exception includes a scenario in which the injury is 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 these situations, according to the motion, as evidenced by the fact that he chose to sit in an area without netting in front of him.

“Although Plaintiff attempts to shoehorn his claim into a narrow exception to the Act by labeling it as one for ‘willful and wanton conduct,’ his conclusory allegations fall short and, if accepted, would violate bedrock principles of statutory construction by reading the Baseball Act’s limitation of liability out of existence,” the motion said. “The Act’s plain language, purpose, and legislative history all confirm that foul-ball claims like this one are barred.”

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 — especially fluke injuries that are fairly common at baseball games.

The Baseball Act was a response to two Illinois appellate court decisions that broke with long-held precedent in such cases, and found both the Cubs and the Chicago White Sox were liable for injuries caused by balls in their respective parks. Friday’s motion quotes one of the bill’s sponsors, Democratic State Senator William Marovitz of Chicago, who said on the Senate floor that the purpose of the Baseball Act is to correct the appellate decision finding the baseball teams liable for the injuries at issue in the cases.

“[T]he State ofIllinois finds itself in a unique position where one of our courts has found liability on sports franchises for foul balls that are hit in the stands, unlike other jurisdictions around the country,” Marovitz is quoted as saying in get motion. “And Amendment No. 2, sponsored by myself and Senator [Pate] Philip, clarifies the fact that there is no liability in those kind[s] of situations.”

Colin Dunn or the Clifford Law Offices PC, told Law360 on Monday he expects to succeed for his client.

“I guess I was wrong about believing the Cubs would do the right thing for Mr. Loos,” Dunn said in an email. “The motion has zero merit and we expect it to be denied.”

An attorney for the Cubs and the MLB declined to comment on Monday.

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.

Andrew A. Kassof, P.C.

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