According to this article, a fan who was injured in the face by a shattered maple bat has sued the Mets, the bat manufacturer, and players Luis Castillo (the batter) and Ramon Castro (the owner of the bat).  I’ve been waiting for this kind of a lawsuit for some time.

Every ticket to a major league game contains a disclaimer in fine print on the back that states the purchaser assumes all risk of injuries which occur during the game.  The disclaimer has effectively shielded teams from injuries caused by batted balls and broken bats in the past.

The difference here is that it has become common knowledge in MLB, if not among less sophisticated fans, that maple bats are potentially more dangerous than bats made of ash.  For example, the article linked above states that an MLB committee released a study which concluded that maple bats are three times more likely than ash bats to shatter into multiple pieces.

It’s also common knowledge to anyone who has watched the game since maple bats began coming into common use that maple bats shatter in a way that is more likely to produce sharp edges than ash bats.

I note, however, that in this case, the fan didn’t get speared by the broken bat.  Instead, the fan was struck by a section of the broken bat and had several facial bones fractured.  We’ll have to wait and see if the special facts surrounding the injuries suffered impact the outcome of the case.

As I said, MLB attempts to insulate itself from liability with its disclaimer that fans are assuming the risk of injury.  However, the laws of most states limit the ability of a manufacturer (or in this case, a service provider) to enforce such disclaimers for public policy reasons.

Specifically, most states will not allow all potential risks to be assumed by the customer no matter what the purchase contract says. 

For example, car manufacturers and dealers cannot limit themselves from liability for dangerous defects in their products, like SUVs which have a tendency to role over when making sharp turns at 45 mph, or Ford Pintos which had the unfortunate habit of having their gas tanks explode in relatively minor collisions.

Another good example would be parachute manufacturers: the product has to perform what you would expect from a parachute.  There is no way to disclaim defects which would likely result in the deaths of sky-divers.

Without getting into the law too deeply, or, in particular, analyzing New York law on the issue (the injury occurred at Shea Stadium), the case will likely boil down to whether teams are taking an unnecessary and unreasonable risk to fans’ health and bodily well-being by allowing maple bats to be used, in comparison to ash bats.

The big problem for MLB is that it has long been known that maple bats are potentially more dangerous than ash bats because of the way the maple bats tend to break compared to ash bats.  According to the article above, MLB’s own study shows as much.

The fan’s argument will be that fans expect that teams will take reasonable precautions to protect their safety, or fans wouldn’t go to the games in the first place. His attorneys will argue that it is unreasonable for teams to allow maple bats to be used when they are three times more likely to break into multiple pieces than ash bats, when teams could potentially make such injuries less likely by restricting players to ash bats.

The fan will also likely argue that the disclaimer shouldn’t be given a lot of weight because it appears in fine print and most fans never read the disclaimer anyway.  This argument has failed in bat or ball injury cases in the past, but it may come into play if the fan can prove that maple bats are inherently more dangerous to fans than ash bats.

Most likely, the case will turn on whether or not the fan can prove to the court’s or a jury’s satisfaction that the use of a maple bat made the injury more likely than if an ash bat had been used, and that additional risk created by using a maple bat was unreasonably high.

It will be interesting to see how the case plays out.  MLB has fought fan bat and ball injury lawsuits tooth and nail in the past, so I would expect the Mets to fight this lawsuit hard, if not through trial, then at least until a summary judgment motion has been denied.

In the meantime, the pending lawsuit should not serve as a reason for MLB to delay further consideration of whether maple bats should be banned. 

In most states, subsequent remedial measures designed to make a product safer or reduce the risk of future injuries is not admissible by a plaintiff injured prior to the remedial measure, for the public policy reason that manufacturers should not be discouraged from making improvements or fixing defects until all pending defect litigation has been resolved.

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