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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?
-- Posted by Geoffrey Rapp @ 4/04/2008 09:36:00 AM --
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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?
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..."
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).
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