A fundamental principle of tort law is that we take the victim as we find them. If a person acts in a way that hurts someone, then the wrongdoer is responsible for all of the victim’s damages, even if a different victim might not have been as susceptible or gotten as hurt from the same action. This is the rule of the “eggshell skull plaintiff.”
Considering that one essential purpose of tort law is to provide victims with money for harm committed against them, this rule makes sense. The amount of damages should be sufficient to make that victim whole again.
The eggshell skull plaintiff rule also has inherent logic. If you believe in bell-shaped curves, as I do, then a wrongdoer (the legal term is “tortfeasor”) is as likely to harm a stoic, tough guy like me as Humpty-Dumpty sitting a few rows away. In other words, it all evens out in the end. This leaves the other essential purpose of tort law intact, which is to provide a monetary incentive to engage in safe conduct in order to avoid hurting people and then paying them after costly lawsuits. The Ford Pinto is the classic example of the role tort law plays in punishing heartless utilitarian calculations regarding safety.
Even if tort compensation provides only rough justice, we definitely live in a safer society now than when dangerous workplaces and public accommodations could be ignored without consequences.
Ahem. That moment on my soapbox provides a brief legal introduction to what I really want to talk to you about.
DRUGS
A couple of weeks ago, I gave a presentation at the first Mass Gathering Medicine Summit. Aside from demystifying a federal law I find to be particularly misguided, I spoke about the importance of not judging our patrons, just taking them as we find them. Physicians providing emergency care at live events cannot choose to treat only patients suffering from legal products while refusing to help people who need help dealing with the effects of currently-illegal substances. Instead, they treat each patient without judgment.
As I understand tort law, this is the correct model for all of us.
BASEBALL
Let’s see how this interpretation applies to baseball. Over the last year, there has been a great deal of discussion whether baseball stadiums need to extend the netting further up each baseline in order to protect fans near the field from balls and bats rocketing into the stands. After Commissioner Rob Manfred recommended netting to protect all fans sitting at least 70 feet from home plate, every Major League Baseball club ensured that it complied before Opening Day this season.
I’m conflicted about this.
I’m no baseball purist. With very few exceptions, I cringe watching pitchers try to hit. But I like sitting close to the field, and I accept the responsibility of paying attention for the 18 minutes or so when the ball is in play. I’m comfortable with that position, particularly since my personal views align pretty closely with fellow Red Sox fan Stephen King, among others. But if something as simple as more netting will prevent some injuries, maybe we should want that.
My conflict is based on the reason more people are getting hurt (if more people really are getting hurt now, as opposed to this merely being a shiny object for sports media). If I apply the same logic to ballparks that I do to concerts and festivals, then it should not matter whether fan are at risk because (a) they are texting while the ball is in play, or (b) stronger players are hitting foul balls harder, reducing available fan reaction time to an unreasonable split second. If we truly take the victim as we find them, then ballparks should be made reasonably safe for modern fans, even if their vulnerability is objectionable or self-inflicted.
The preceding paragraph will look like heresy to readers still clinging to the “baseball rule,” which absolves baseball stadium operators of any liability when a fan is struck by a ball. The idea is that everyone knows the risk, so fans assume that risk entirely. It’s an old fashioned rule from a harsher time in American history, and as recently as last week, the Ohio Supreme Court upheld a 2015 Court of Appeals decision allowing a baseball injury case to reach a jury, proof of the baseball rule’s narrowing application. Here’s why I’m okay with that.
As an interpreter of the law, I grudgingly concede that extending the netting closest to the field seems reasonable (although without data, I’m taking a firm position on none of this). On the other hand, as a fan of the game I want a clear view of the field and will continue to sit just past the end of the net. When I can no longer do that, I’ll enjoy the view from my living room TV.
My thoughts about how the eggshell skull plaintiff rule applies to baseball are a work in progress. I was scheduled to talk through the issue of fan safety on May 8 on “Ed Randall’s Talking Baseball,” an excellent radio program on WFAN-AM, but I was bumped by Red Sox manager John Farrell, who was apparently running late. For him, I’ll wait a week. If you want to listen live, you can stream the broadcast, which is rescheduled for Sunday, May 15, in the 10:00 AM EDT hour.
GUNS
All of this consideration of what real people really do is leading to something I’ve been stewing on for a while: guns in public places, and what regular people can reasonably be expected to do about them.
With all due respect to the federal officials who try to keep American citizens safe, I have long been skeptical about the Department of Homeland Security’s “See Something, Say Something” program. In my observation, most people see nothing when they’re out in public, and the few who do rarely say anything that helps. There is lots of supporting evidence in the literature of event disasters (is it weird to collect books on this subject?), and I have been reading articles in psychology and cognitive science about topics such as “confirmation bias” that provide a scientific foundation for what most venue and event professionals already know about patrons’ ability to perceive and react.
Next time in this space, in anticipation of writing a longer article in ESTA’s magazine, Protocol, I will take on the reasonableness of the most common active shooter response program, “Run, Hide, Fight.” I will gladly consider your comments and experiences as I research this issue, so feel free to contact me at sadelman@adelmanlawgroup.com.
Stay safe out there. Steve Adelman