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Friday, April 04, 2008
When animals attack...are baseball stadiums liable?

In a sign that a new curse may have descended on Fenway Park, a raptor attacked a 13-year old fan at Fenway park yesterday. The hawk descended upon the fan, who was on a tour of the park, and drew blood from her scalp.

Birds of prey have harmed fans at games before (and been sued for doing so), but those birds have generally been of the fluffy costume variety. And it is certainly true that one "who attends a baseball game as a spectator can properly be charged with anticipating as inherent to baseball the risk of being struck by a foulball while sitting in the stands during the course of a game." But is being attacked by a hawk an inherent part of watching a baseball game live? That would hardly seem to be the case.

As a result, were the fan to sue a baseball stadium it seems unlikely that the special "primary assumption of risk" notion would bar a lawsuit. Instead, the case would likely turn on whether a stadium owner has (1) any responsibility to protect fans from raptors and (2) whether the Red Sox failed to take steps that a reasonable stadium operator would take with respect to such birds.

Although I am far from an expert in hawk studies, I wonder whether the Red Sox do bear some responsibility here. A baseball park consists of grass manicured and tweaked to a level hardly found in nature. From the high perch provided atop the "monster" walls of the stadium, a bird of prey can see the smallest (in)field mouse and swoop in for attack. It seems to me perfectly logically that these artificially altered landscapes are a perfect hunting ground for hawks squeezed out of their natural habitats by McMansion expansion. If a stadium owner has created a sort of "hawk-attracting nuisance", should it not take some hawk repelling steps as well? This particular hawk was nesting in the rafters at Fenway, where it had laid an egg. How hard is that to spot, and to do something about?


Couldn't you say the same thing about any public park? If it occurred in any general park, would she then have recourse to sue the city?

Blogger Russ -- 4/04/2008 10:57 AM  

I'm not sure what could be done about the raptor egg. Raptors are protected by federal law, and disturbing an egg in any way is probably illegal too.

Anonymous Peter -- 4/04/2008 11:37 AM  

First come the hawks. Now come the sharks....

Anonymous Anonymous -- 4/04/2008 12:23 PM  

Just a very quick search turns up this semi-relevant Illinois opinion, Nichols v. Lowe's Home Center, Inc. 407 F.Supp.2d 979 (S.D.Ill.,2006).

Lowe's sought (and were granted) summary judgment, arguing that a wild bird attack in the store's garden area was not reasonably foreseeable, and that the store owner was not the keeper or owner of the bird under the applicable Illinois statute.

The plaintiff had presented both negligence and strict liability as possible theories of recovery, but the court opinion was that "a reasonable plaintiff would have either noticed the birds, or would have realized that in any outdoor area full of plant life, contact with wild birds is possible..."

Anonymous Anonymous -- 4/04/2008 1:52 PM  

Thanks for the legal research. Glad to hear that there still is some common sense out there, even in the American legal system.

Anonymous Anonymous -- 4/04/2008 2:25 PM  

Interesting post. I don't think there should be any liability when a bird attacks a fan. Applying a risk-utility analysis, the risk of a bird attacking a fan is slight and the risk of harm flowing from being attacked is very minimal (as was the case here with a mere scratch of the scalp). From a utility standpoint, the only way to really prevent any type of bird from entering the park would be to enclose the stadium (and even in dome stadiums birds sometimes get in).

Blogger Rick Karcher -- 4/04/2008 6:48 PM  

Dogs always get one free bite before they are labeled as dangerous. Shouldn't the birds be granted the same immunity?

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