Protective netting lawsuit rejected

An A’s fan and a Dodgers fan say about 1,750 spectators a year are injured by foul balls lined into the stands at Major League Baseball games — including the Dodgers fan, who’s still in pain from a liner that slammed into her ribs in 2015 — and that should be enough to require ballclubs to extend their safety netting from behind home plate to both foul poles.

A federal appeals court wasn’t convinced Friday and refused to reinstate their proposed class-action lawsuit, which had been tossed out by a judge in Oakland last year.

Research provided by Major League Baseball showed that the risk of getting hit by a foul ball in the first-base section chosen by one of the fans is .0027 percent per game, said the Ninth U.S. Circuit Court of Appeals in San Francisco. That’s not enough to show that she faces a “certainly impending injury,” as required for a safety-related lawsuit, the three-judge panel said.

And a fan’s “general anxiety” about being struck is not the type of injury that can sustain a suit, the court said, because it is “based on fears of hypothetical future harm that is not certainly pending.”

Major League Baseball requires teams to provide netting from home plate to the dugouts. Ten teams have put up additional netting, and three more said they would do so after a foul ball struck a 2-year-old girl in the face at Yankee Stadium in September. The A’s and Giants don’t provide extra netting.

Gail Payne and Stephanie Smith filed their suit in 2015 after Smith was struck by a foul ball at a Dodgers game and taken to an emergency room with a partially collapsed lung. Payne has attended A’s games since 1968, holds a season ticket along the first-base line and said she often has had to dodge line drives that could have been stopped by better safety netting.

They argued that fans are in greater danger from baseballs and broken bats than they were in the past, because pitchers throw harder and today’s bats splinter more easily, and that MLB could provide the needed protection for a fraction of the money it spends on publicity.

Injuries to fans have prompted players to call for more safety measures, the women’s lawyers said. They quoted pitcher Justin Verlander, then with the Detroit Tigers, as saying in 2015 that ballparks need to extend their netting “before it’s too late.” Chicago Cubs Manager Joe Maddon said he would “never want my kids sitting unprotected.”

U.S. District Judge Yvonne Gonzalez Rogers dismissed the suit in November 2016. She agreed that injuries to baseball spectators, especially children, are more severe now than they were in the past, but said an individual fan’s statistical risk was too low to sustain a lawsuit.

The appeals court agreed with Gonzalez Rogers in a three-page ruling Friday. Lawyers for the two women could not be reached for comment.