Professional Documents
Culture Documents
Ellen R. Weaver
In the case of the Hecklers and their rowdy and slander riddled attendance at a minor
league baseball game, it can be argued that they were in violation of several of the terms of
conditions inherent in the tickets they held and that their inflammatory actions validate, at the very
least, consideration of comparative negligence. The violation of stadium policy and the
misconduct of the stadium employees in providing excessive alcohol to the Hecklers is also
fundamentally negligent and directly influenced the Hecklers behavior. The Windjammers
pitcher, Curveballer, was abused through public defamation resulting in arguable emotional injury,
ultimately contributing to an intentional tort of battery. This mix of factors results in an altogether
convoluted situation in which there are many faults to consider and the legal burden of proof
becomes paramount.
Case Factors
sporting event, and breach thereof, as well as proof of causation and resulting injury (Spengler,
2009, p. 15-20). The blatant violation of the stadium alcohol policy clearly penetrates both the
standard of care and the breach of duty elements of negligence. Although the selling of alcohol
both within and up to the seventh inning was allowed, the number of drinks distributed to Harry
Heckler directly violated stadium policy which was even more restrictive than guidelines
supported by various professional association position statements; like the ones on alcohol
supported by the TEAM coalition of best practices and sport policy recommendations for the
MLB (as well as the MLS, NBA, NFL, NHL, NASCAR, NCAA and a variety of facilities and
stadium service providers). Alcohol directly effects inhibitions in terms of aggression and rational
thought, as it causes decreased activity in the prefrontal cortex, so there is a direct correlation
NEGLIGENCE, RISK & TORTS IN SPORTS 3
between the alcohol consumed by the Hecklers (combined with their predilection for jeering
Additional factors abound. The injuries sustained by Harriet Heckler after being struck by
the ball, the fall which caused her extended injuries of the broken arm and ribs, should also be
taken into account. Although Curveballers actions were clearly intentional and of an injury in tort
nature, they could also be considered gross negligence in that throwing the ball showed a
heightened degree of carelessness or willful, wanton, or reckless misconduct in that there was
no guarantee that his throw would directly harm one of his aggressors or compensate for any
additional injuries (Spengler, 2009, p. 23). It can also be said that, as season ticket holders and
devout fans, the Hecklers were well aware of the level of their misconduct in terms of fan
guidelines and stadium policy and both the implied and explicit assumption of risk in attending
elements of risk and consent. It is well documented and routinely legally upheld that all
spectators are assuming some risk of injury when attending sporting events. There was also clear
and intentional violation, on the part of the Hecklers, of the stadiums alcohol policy and likely fan
policies. It can be assumed that this field had the appropriate signage to that affect as well as a
waiver inherent in the purchase of a ticket. For example, ticket terms and conditions of the minor
league baseball (MiLB) team the Iowa Cubs (2017) clearly states to ticket holders that Use of a
ticket and/or attendance at Principal Park for the ticketed game or event constitutes the User's
acceptance of and agreement to be bound by the provisions printed on any ticket or [the team]
website and most of those agreements stipulate that the holder waives all claim for injury damage
or loss of any kind, negligent or otherwise. The Orem Owls, another MiLB team, have a clear fan
NEGLIGENCE, RISK & TORTS IN SPORTS 4
code of conduct (2017), the violation of which results in immediate stadium ejection and criminal
prosecution.
MiLB teams also follow all of the Official Baseball Rules of Major League Baseball (2010)
which includes:
Rule 309: Players in uniform shall not address or mingle with spectators, nor sit in the
stands before, during, or after a game. No manager, coach or player shall address any
spectator before or during a game. Players of opposing teams shall not fraternize at any
There is also the consideration of the MLB endorsed practice of all fields having safety netting
shielding all field level seats within 70 feet of home plate and between the dugouts (Hagen,
2015). This factors into the accessibility of the pitcher to cause harm to the Hecklers.
Having seats in the front row on the third base line near the dugout places the Hecklers at
reasonable risk of harm, and if safety netting was not in place and their seats were within this
margin, it stands to reason that there should have been some barrier to protect the Hecklers
The reaction of the taunted pitcher, Curveballer, is distinctly punitive in nature and resulted
in the harmful battery of one of the Hecklers. Both the defendants and the plaintiff also have
notable, repeated reputations for reactionary behaviors. It is well known that the Hecklers like to
heckle players, angering them intentionally, and that they had preexisting knowledge of
Curveballers temper and weaknesses. Both parties committed assault in that they were shaking
fists at one another, threatening violence, but only Curveballer followed through with an actual
battery action resulting in the injuries of Harriet Heckler. In this way, negligence is not the
predominant factor in the actual action of throwing the ball, but the additional injuries sustained in
the fall and the contributing factors to the situation are negligent in nature.
NEGLIGENCE, RISK & TORTS IN SPORTS 5
Ultimately, the near centuries worth of case law upholding the limited-duty nature of
protecting spectators in the stands falls short of this situation (Cohen, 2008). Curveballer
willingly entered into an altercation with the Hecklers, throwing the ball with intent into the
stands, whereas all of the semi relevant case law deals with unintentional contact due to foul balls
or broken bats. When examining the various possibilities for litigation, it becomes necessary to
take into account all of these various contributing factors, so in the next section there will be an
Plaintiff v. Curveballer
In this case, there is causation in fact in that the thrown baseball, under the sin qua non
rule, was the direct cause of harm to the defendant (Spengler, 2009, p. 20). However, this is
unequivocally the action of an intentional tort, rather than negligence. Litigation against
Curveballer should be succinct in that it addresses the absolute intentional tort of injury in the
form of battery after an assault. It can be argued effectively that Curveballer was in direct
violation of the MLBs rules against any fraternization with spectators during the game and the his
actions against the Hecklers escalated from assaultapproaching the stands, engaging in
argument and shaking his fistto outright battery once he threw the ball into the stands.
In terms of the duties and code of conduct expected of the Hecklers, it is unlikely that they
have ever signed any documentation that would void their litigation. It is common practice to
void the actionable waiver that is printed on tickets or facility websites as there is no proof that
the Hecklers have ever read or agreed to those terms (Wolohan, 2009). Establishing this will be
necessary in countering the defense. Additionally, there are grounds for a gross negligence claim
against Curveballer for the injuries sustained by Harriet Heckler as an indirect result of being hit
by the ball, namely, the broken ribs and arm from her unconscious fall to the ground.
It is typical for an away team to be included in the protection of the terms and conditions
of holding a ticket to an MiLB sporting event, so it would have to first be established that the
warning, waiver, and release of claims are void before pursuing action against the Windjammers.
As season ticketholders, the Hecklers are also not exposed to that contractual language with each
game, but only once for the season, reducing their ability to agree to the terms. Once it is
established that it is possible to continue, it would follow that the Hecklers would pursue a
vicarious liability sentence that would hold the employer, the Windjammers, directly responsible
for the actions of their employee, Carlos Curveballer. The Windjammers, and by affiliation the
River Rats, also knowingly allow their patrons to consume alcohol, so there is an implied risk of
behaviors that correlate with drinking. The Hecklers could even stipulate that since professional
groups like the TEAM coalition recommend that two drinks can be purchased at a time it is
unreasonable to be penalized for having taken more than one, especially since it was still the 7th
inning.
The Windjammers, if unable to provide proof of attempts to counsel Curveball and address
his temper, willingly employ a player who is prone to violent displays of anger. It could be argued
that by allowing Curveball to play they are willing to accept an eventual heated outburst and that
the team accepts this liability. Also, although injuries are commonly referred to within those
waivers and conditions of purchasing a ticket, outright intentional assault and battery are not
referred to directly. There is room in the language to argue that an intentional attack that results
in bodily harm is not subject to the definition of injury provided by the policies of the stadium.
Curveballer Defense
The defense of Carlos Curveballer has a multitude of options for consideration. It would
be necessary to establish proof that the Hecklers have a penchant and history of slanderous
behavior from witness and character statements. It would also be important to establish the
NEGLIGENCE, RISK & TORTS IN SPORTS 7
various breaches of spectator conduct codes and ticket holder terms and conditions, including the
intentional goading of Curveballer that was influenced by intimate knowledge of his weaknesses.
If it can be proven that the rules on conduct and behavior are not overly broad, that they are
simply stated and clear, it could be possible to hold up these terms and conditions in court to sway
the judgment (Wolohan, 2009). An additional support towards this defense would be the
consideration of the Hecklers devout attendance to the games, increasing the likelihood of their
awareness for rules and expectations while also setting a precedent for the failure of the River Rat
It is reasonable to assume that the Hecklers were persistent in their goal to heckle the
Windjammer players, and that their abuse of Curveballer was the latest in a string of slander
against the team. It was late in the game, going on to the eighth inning, so there are grounds for
fatigue, both physical and emotional, to play a role in this situation (Spengler, 2009, p. 29). In
kind, it can be said that the Hecklers are guilty of intentional infliction of emotional distress, as
their actions were purposeful, pointed, and directed towards the players with the intention of
causing emotional damage to reduce the players level of performance (Spengler, 2009, p. 31).
Beyond this, there could be an argument for the Hecklers understanding, knowledge, and
appreciation for the implied assumption of the risks of antagonizing the players as the Hecklers,
adults with the ability to comprehend the consequences of their actions, also voluntarily chose to
sit in an easily accessible area to increase that ability to antagonize (Spengler, 2009, p. 26-27).
Unfortunately, most states have removed the potential for a contributory negligence claim
which could shift the responsibility for the violent encounter between Curveballer and the
Hecklers to the River Rats organization and the Hecklers themselves (Spengler, 2009, p. 28). It
could have been argued that if the Hecklers had never pursued such repeated, derogatory and
NEGLIGENCE, RISK & TORTS IN SPORTS 8
racist interruptions to the game, Curveballer would never have been goaded into his retaliatory
response. Throwing the ball into the stands could be attributed to the emotional distress caused
by the Hecklers comments, and potentially be attributed to the plaintiff and to the River Rat
facility for contributing to the Hecklers overall conduct. It could even be attributed as an act of
with words and actions. This course of action would be exceptionally possible if the ticket waiver
was held up as a legal, binding agreement between the Hecklers and everyone involved, both the
More realistically, the defense would pursue a comparative negligence claim so that
Cuveballers actions would be taken in consideration with the whole of the factors and the various
breaches of duty between the defendant, the Hecklers, and the facility itself. Pursuant to the rules
of a comparative negligence claim, it would then be possible to attribute fault beyond Curveballers
action of throwing the ball, reducing the responsibility of Curveballer in the events of the incident.
To increase those odds, it can also be argued that the action, and inaction, of the staff of the River
Rat stadium directly contributes to the actions undertaken by Curveballer. Not only were the
Hecklers not ejected for their unsportsmanlike, interruptive and outrageous behavior, the alcohol
policy was violated. The contribution of the excess alcohol could stand to further decrease the
Conclusion
Ultimately,therewaswrongdoingoneachlevelofthisincident.Inpursuinglegalaction,
itwouldbenecessarytodecidetowhatextenteachpartywasresponsible,soacomparative
negligencedefensewouldbeinthebestinterestofCurveballer.TheHecklersareopentopursue
bothintentionaltortandnegligenceclaims,butwouldfirsthavetoresolutelyprovethattheyare
notbeholdentothetermsandconditionsofholdingatickettotheevent.Theinterrelatedfactors
NEGLIGENCE, RISK & TORTS IN SPORTS 9
oftheHecklersabusive,racistcommentsandtheiroverdrinkingareelementsthatbothparties
couldusetotheirbenefit,potentially,inordertoreducetheirownpercentageofresponsibility.
Thisexercise,forsomeonewithnolawexperience,ishighlyindicativeofthecircumstantial
natureofbothprosecutionanddefense.
NEGLIGENCE, RISK & TORTS IN SPORTS 10
References
Cohen, A. (2008). Spectators In Stands On Their Own Where Flying Objects Are Concerned.
actions/spectators-in-stands-on-their-own-where-flying-objects-are-concerned.html
Gowan, J. (2010). Your Brain on Alcohol. Retrieved February 18, 2017, from
https://www.psychologytoday.com/blog/you-illuminated/201006/your-brain-alcohol
From http://m.mlb.com/news/article/159233076/mlb-issues-recommendations-on-netting/
Policies (2016). TEAM Coalition. Policies on Alcohol. Retrieved February 19, 2017, from
http://www.teamcoalition.org/training/policies/
Stadium Policies/FAQ Orem Owlz Ballpark. (2017). Retrieved February 19, 2017, from
http://www.milb.com/content/page.jsp?
ymd=20090320&content_id=40996772&sid=t519&vkey=team1
Ticket Terms and Conditions Iowa Cubs Tickets. (2017). Retrieved February 16, 2017, from
http://www.milb.com/content/page.jsp?
ymd=20100317&content_id=8821290&sid=t451&vkey=tickets
Wolohan, J. T. (2009). Athletic Business Digital Issue. Retrieved February 19, 2017, from
http://www.athleticbusiness.com/images/digitalissues/0309/