Nancy A. Romeo v. The Pittsburgh Associates

1 Nancy and James Romeo appeal from the order sustaining preliminary
objections and dismissing their complaint. We affirm.

2 On July 13, 1998, appellants, who reside in Ohio, traveled to
Pittsburgh with their two sons to attend a Pittsburgh Pirates baseball game
at Three Rivers Stadium. Complaint, 2/09/01, at 3-5. Before doing so,
appellants contacted appellee and purchased tickets to the game. Id. at 5,
9-10. The back of these tickets contained a disclaimer, which stated that
ticket holders assumed the risk of certain dangers during the course of the
game, including batted balls. Id. at Exhibit A.

3 When appellants arrived, they presented the tickets, entered the
stadium, and sat in the seats designated by their tickets. Id. at 5. Their
seats were located in a field box, six rows from the field on the third baseline
in field box seats, Section 73, Row F, Seats 5 through 8. Id. While protective screening was located behind home plate, no screening, netting,
or other barrier shielded appellants’ seats from the field. Id.

4 During the course of the baseball game, Ms. Romeo turned her head
briefly to the left, away from the action on the field. Id. When she turned
back toward home plate, a batted ball struck her in the face and mouth. Id.
As a result, she suffered a variety of injuries, including, inter alia, the
permanent loss of one of her teeth, nerve damage to another tooth, cuts
and lacerations to her mouth, headaches, and nausea. Id. at 5-6.

5 On February 9, 2001, appellants filed a Complaint in Civil Action
against appellee alleging liability for Ms. Romeo’s injuries based on
numerous legal theories. Specifically, appellants assert that appellee was
negligent, strictly liable, liable for breach of contract, liable for breach of
warranty, and liable for violating the Unfair Trade Practices and Consumer
Protection Law (“UTPCPL”) and/or Plain Language Consumer Contract Act
(“PLCA”). Appellee filed Preliminary Objections pursuant to Pa.R.C.P. 1028,
arguing that none of appellants’ allegations stated a claim upon which relief
could be granted. On April 9, 2001, the trial court issued an order
sustaining these Preliminary Objections and dismissing appellants’
complaint. This appeal followed in which appellants raise the following
questions:

1. Does a business which stages entertainment
known as “Major League Baseball”, have any duty
whatsoever under a negligence, assumed duty, strict
liability, and/or contract theory of law, regarding its knowing exposure of its business invitees sitting in
unprotected areas of the business premises to the
risk of serious personal injury from line-drive foul
balls?

2. Where during the ticket selling process such
a business fails to reasonably advise its customers of
such a risk, selectively protects through screening
only those patrons paying the highest prices, and
then adds a “fine print” disclaimer to the reverse of
admission tickets, has that business violated the
Pennsylvania Unfair Trade Practices Act and/or the
Pennsylvania Plain Language Consumer Contract
Act?

Appellant’s Brief at 2.

6 Our standard of review for preliminary objections is well settled.

All material facts as well as all inferences reasonably
deducible therefrom are admitted as true for the
purpose of this review. The question presented by
the demurrer is whether, on the facts averred, the
law says with certainty that no recovery is possible.
Where doubt exists as to whether a demurrer should
be sustained, this doubt must be resolved in favor of
overruling it.

Muhammad v. Strassburger, 587 A.2d 1346, 1349 (Pa. 1991). Appellants
pled many different causes of action in their complaint, and we will address
the viability of each theory of liability in turn.

Negligence

7 The operator of a place of amusement is “not an insurer of his
patrons,” and therefore, patrons will only be able to recover for injuries
caused by the operator’s failure to exercise “reasonable care in the
construction, maintenance, and management of the facility.” Jones v. Three Rivers Management Corp., 394 A.2d 546, 549 (Pa. 1978). The
quantum of care owed will depend on the “character of the exhibitions given
and the customary conduct of the patrons invited.” Id.

8 In light of these principles, Pennsylvania Courts have formulated the
“no-duty” rule which provides that operators of a baseball stadium,
amusement park, or other such amusement facilities have no duty to protect
or to warn spectators from “common, frequent, and expected” risks inherent
in the activity. Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 343
(Pa. 2000). Individuals attending these types of activities are deemed to
anticipate such obvious risks and therefore to assume them. Id. Former
Chief Justice Roberts clarified this interrelation between the “no-duty” rule
and the assumption of risk analysis relied upon in early cases.

By voluntarily proceeding to encounter a
known or obvious danger, the invitee is deemed to
have agreed to accept the risk and to undertake to
look out for himself . . . . Thus, to say that the
invitee assumed the risk of injury from a known and
avoidable danger is simply another way of
expressing the lack of any duty on the part of the
possessor to protect the invitee against such
dangers.

Carrender v. Fitterer, 469 A.2d 120, 125 (Pa. 1983) (citations omitted).

9 On several occasions, this Court specifically considered the liability of a
baseball stadium operator for injuries sustained by a patron hit by a foul ball
during a baseball game. In a number of early cases, we held that spectators
may not recover because they assume this risk of injury when they observe a game from the field or in the bleachers. Schentzel v. Philadelphia
National League Club, 96 A.2d 181, 186 (Pa.Super. 1953); Iervolino v.
Pittsburgh Athletic Co., 243 A.2d 490, 491 (Pa.Super. 1968).

10 During each and every baseball game, foul balls regularly careen into
the grandstand and are oftentimes even caught by spectators. See
Schentzel, 96 A.2d at 186. This reality is a “matter of such common
everyday practical knowledge” that all individuals will be deemed familiar
with such ‘neighborhood knowledge.’ Id.; Jones, 394 A.2d at 550. In
Schentzel, a woman attending her first baseball game was struck by a foul
ball and sued the stadium operator for negligence. Id. at 183. This Court
overturned a jury verdict for the woman on the grounds that even she, as a
first-time spectator, assumed the risk of being hit by a foul ball by watching
the game from the stands. Id. at 186. As a result, the stadium owner was
not subject to liability. Id.

* * *

Click the case caption above for the full text of the Court's opinion.

Affirmed

Unavailable

Unavailable

None