Tuesday, August 26, 2014

Indiana Supreme Court Finds for RailCats but Declines to Adopt Baseball Rule in Fan's Foul Ball Injury Case

Gary Southshore RailCats Home Ballpark
Southshore Baseball, LLC v. Juanita DeJesus, No. 45S03-1308-CT-531 (Ind., 2014)

What Happened?

On May 23, 2009, Juanita DeJesus attended the Gary Southshore RailCat's opening day game at The U.S. Steel Steelyard in Gary, Indiana.  On this warm, clear night, the RailCats were set to battle their Northern League foes, the Fargo-Moorhead RedHawks.  Ms. DeJesus and her fiance attended the game, meeting their friend and her niece at their seats in section 111, which were just beyond the protective netting behind home plate along the first base line.  

Second baseman Carlo Cota, the second batter of the game, hit a pop-up foul ball back into the stands.  Ms. DeJesus saw Cota make contact with the ball but as she looked up to find it, the ball struck her in the face.  As a result, she sustained several fractured facial bones and was left with permanent blindness in her left eye.

Ms. DeJesus filed a lawsuit against the RailCats claiming that they "were negligent in failing to make [the] premises reasonably safe for [her], a business invitee."  Specifically, she claimed that the RailCats should have extended the netting further down the line to have protected her seat from foul balls.  She even hired an expert who opined that the netting should have protected all of the seating sections.

The RailCats countered that the netting was adequate and that plaintiff had not produced any evidence, other than the claims of their expert, that the netting was defective.  Additionally, the defendants argued that there was no evidence that plaintiff failed to appreciate the danger of foul balls entering the stands or that being struck by a foul ball was an unreasonable risk of harm.  Finally, they urged the Indiana Supreme Court to adopt the "Baseball Rule" in which the RailCats would have been absolved of liability for a foul ball injury like this because they provided screening behind home plate sufficient to meet the ordinary demand for those protected seats.

Based on these defenses, the defendants moved for summary judgment, asking the trial court to dismiss the plaintiff's case due to her inability to prove the negligence or premises liability claims.

Who Won?

Although the RailCats were not able to beat the RedHawks on that May 23rd evening, losing 3-2 in 10 innings, they ultimately prevailed in this case.

Initially, the trial court denied defendants' motion for summary judgment but allowed defendants to pursue an immediate appeal.

The Court of Appeals, however, reversed the decision of the trial court and returned the case with instructions to grant the defendants' summary judgment motion in its entirety.  They specifically adopted the majority rule that a baseball stadium operator has only the duty to screen the most dangerous areas behind home plate.

The case was thereafter accepted by the Supreme Court for review.  The Supreme Court declined to adopt the Baseball Rule but affirmed the ruling of the Court of Appeals having dismissed Ms. DeJesus' case.


The Court cited this passage from the 1911 case of Charles Carr v. State in which plaintiff had been convicted of playing baseball on Sunday, in violation of a Draconian Indiana law which prohibited "rioting, hunting, fishing, quarreling, at common labor or engaged in his usual avocation" on Sundays.  
That baseball has come to be the one great American outdoor game; that it is played during the summer season throughout the land by boy and youth and man, beginner, amateur, and professional, in country village, town, and city; that it is played out of doors in seasonable weather; that it engages the mind alike of the participant and the spectator in an entertaining way; that it trains the body to vigor and activity and to a degree the mind to alertness; that the playing of a game requires but a fraction of a half day; that it cannot be successfully played at night; that those who witness it find in it for the time a relief mentally and physically from the stress of the intense life we as a people lead - are facts known of all men, and of which the courts and Legislatures cannot be wholly ignorant.  Carr v. State, 175 Ind. 241, 93 N.E. 1071 (Ind., 1911).
Despite the inclusion of this romantic passage and an acknowledgement that over a dozen other states had adopted the Baseball Rule, the Court was not convinced that baseball was worthy of its own special rule of liability.  The Court ultimately concluded that the enactment of the Baseball Rule in Indiana was better left the judgment of the legislature, recognizing that Arizona, Colorado, Illinois and New Jersey had codified the Baseball Rule.

With regard to the premises liability claims, the Court held that the warnings regarding the potential danger of foul balls printed on the tickets, posted on signs and announced over the public address system were adequate such that the RailCats would have had no reason to believe that DeJesus "would not realize the danger or that she would not protect herself against it."  

As to the negligence claims made by plaintiff, the Court found that plaintiff was unable to establish that she had relied on the netting to protect her from the danger presented by foul balls.  Specifically, she had testified in her deposition that she had seen foul balls enter the stands before at RailCats games and even admitted that she knew that a foul ball could come her way while she was sitting in her seat that day.   

Thursday, August 21, 2014

Toronto Blue Jays Oppose Creighton University Trademark Application

Rogers Blue Jays Baseball Partnership v. Creighton University, In re Application Serial No. 86067719

The Toronto Blue Jays have filed a Notice of Opposition with the U.S. Trademark Trial and Appeal Board in an effort to prevent the approval of trademark protection for the new logo being offered on sports apparel by Omaha's Creighton University.  Creighton has filed for trademark protection for a stylized blue jay head design to be used on "Athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, [and] athletic uniforms."  This is the Creighton logo, from a t-shirt currently available on their athletic department web site.

For their part, the Toronto Blue Jays have claimed that the team has continually used very similar logo designs from well before the Creighton application date of September 18, 2013 as shown here:

As a result of the alleged similarity, the Toronto Blue Jays claim Creighton has caused confusion and deceived the public that the Creighton goods were approved or endorsed by Toronto's Major League Baseball team.  They further claim to be damaged by causing a likelihood of dilution "by blurring the distinctive quality" of the Toronto marks.  The Toronto Blue Jays request that the Creighton application be denied.

The basic analysis of trademark infringement is the "likelihood of confusion."  Accordingly, the Toronto Blue Jays do not need to show actual confusion.  The specific inquiries that the Trademark Trial and Appeal Board will make include: the similarity of the marks with respect to appearance and impression, the similarity of the goods or services, the similarity of "trade channels", the strength of the competing marks, actual confusion, length of time of concurrent use without actual confusion and the variety of goods with which each of the marks is used.  In re E.I. DuPont DeNemours & Co. (1973).    

The decision of the board will be posted after it has been issued.  What do you think is going to happen?