Ballpark injury case to make law

Las Vegas 51s fan Kathleen Turner was eating a sandwich in the Beer Garden at Cashman Field when a foul ball struck her between the eyes, breaking her nose and cutting her face.

"She never saw the ball -- the foul ball -- coming towards her," attorney Beau Sterling told the Nevada Supreme Court on Wednesday.

Sterling is one of the lawyers representing Turner and her husband, Michael, in a lawsuit against Mandalay Sports Entertainment, which operates the stadium. The case is expected to make new law in Nevada and could have implications not only for the minor league stadium but for city parks throughout the state.

Mandalay's attorneys are asking the Nevada Supreme Court to adopt the so-called limited-duty rule, sometimes called the "baseball rule," which long has protected stadium operators from litigation. The state's high court never has ruled on the issue.

District Judge Jessie Walsh did not cite the rule by name when she dismissed the Turners' lawsuit in 2005, but Mandalay's lawyers argued in a court brief that her decision was "in harmony with the vast majority of other jurisdictions that have specifically decided personal injury cases involving foul balls at baseball stadiums. That is, baseball parks do not owe a duty to provide screening in the ballpark in viewing areas except in the most dangerous area of the park, which is behind home plate."

During oral arguments Wednesday in Las Vegas, Sterling said the high court should refuse to adopt the baseball rule. But if the court does adopt the rule, the lawyer argued, it should apply only to injuries suffered by fans in the stands.

Sterling said the casual atmosphere in the Beer Garden lulled Turner, then 54, "into a feeling of complacency."

In response to a question from Justice Jim Hardesty, Sterling said the Turners would not have filed the case if the incident had occurred in the stands.

Mandalay's lawyers argued in their court brief that the Turners, in effect, want the Supreme Court to "find that baseball must be played in a bubble, and, if not, a ballpark owner is liable for any and all injuries arising out of the game."

"If that is the law, then patrons might as well stay home and watch baseball on television, since all the fun of watching it live will have been eliminated," according to the brief. "That cannot be the state of the law in Nevada, or professional baseball will simply cease to exist here."

Attorney Thomas Dillard Jr., who represents Mandalay, described Turner as an experienced baseball spectator who should have known to pay attention to the game at all times. He also noted that 51s tickets carry a warning about the risk of foul balls.

Hardesty asked Dillard why a stadium proprietor should be treated any differently than any other business operator who sets up a restaurant area.

"Does the baseball rule really apply to those circumstances?" the justice asked.

Dillard said the Beer Garden, which overlooks the field on the third-base side, provided plastic tables and chairs. Home plate was "clearly visible" from its back wall, he said.

"It is a viewing area," Dillard told the court.

The lawyer said spectators make a choice either to sit in a protected area behind home plate or to sit in an area where they have an opportunity to catch a foul ball.

When Hardesty asked whether the baseball rule should apply to cities or counties that provide baseball fields for adult or youth teams, Dillard said it should.

Sterling said landowners have a reasonable duty to protect users from harm.

Turner was seated at a table in the Beer Garden on May 4, 2002, when she was struck by the foul ball.

Sterling said Turner could not see the field from her position, about 260 feet from home plate. Her husband was standing at the railing, watching the game, a few feet away from his wife.

During a brief telephone interview Wednesday, Turner said the incident has changed her life, but she does not like to talk about it.

"I really haven't worked since, because I can't concentrate," Turner said.

Turner, now 59, and her 57-year-old husband own an auto repair shop. She said she underwent reconstructive surgery after the incident and continues to suffer from headaches.

"This has just been devastating," she said.

Justices Michael Douglas and Ron Parraguirre joined Hardesty on the panel that heard arguments in the case. The justices did not say when they would issue a ruling.

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or (702) 383-0264.