Injured fan will be given hearing

The Nevada Supreme Court has decided that all of its members will consider the appeal of a Las Vegas 51s fan who was injured by a foul ball in 2002.

A panel of three justices heard oral arguments in the case in October, but the court issued an order Friday announcing that it will consider the appeal "en banc."

"It doesn't happen very often, but if it's a case that has the potential to change Nevada law in an important area affecting public policy, then it's one that should be heard by the full, seven-member court and not just a three-judge panel," attorney Beau Sterling said Wednesday.

Sterling represents Kathleen Turner, who 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.

Turner sued Mandalay Bay Entertainment, which operates the stadium, but District Judge Jessie Walsh dismissed the lawsuit in 2005. The involvement of the full court in Turner's appeal has added to speculation that the case will set precedent in Nevada.

Mandalay's attorneys have asked the 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.

Walsh did not cite the rule by name when she dismissed the case, 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, 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." Turner was seated at a table in the Beer Garden, which overlooked the field from the third-base side, when she was struck by the foul ball on May 4, 2002.

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.

On Wednesday, Dillard said he was surprised by the court's decision to hear the case "en banc."

He said a ruling by the full bench can "suggest more legitimacy."

He said it also signals the court's intention to make a substantive ruling on an issue of law that could set public policy, "as opposed to a ruling that turns on facts, really, that are particular to this specific case."

"In terms of what it means -- good, bad or indifferent -- I really don't know," Dillard said.

According to the court's order, it will issue its decision without further argument. Sterling said he would not expect a decision for a few months because the justices who are new to the case will need time to read the briefs and listen to recordings of the oral arguments.