## Facts

- Jane Costa attended a Boston Red Sox game at Fenway Park in September 1998 and arrived around the top of the fifth inning.
- She sat in an unscreened upper box seat along the first-base line, generally behind the Red Sox dugout.
- A batter hit a line-drive foul ball into the stands along the first-base line; the ball struck Costa in the face, causing severe, permanent injuries.
- Evidence showed foul-ball injuries occurred regularly at Fenway Park, with annual injury totals in the 1990s ranging from 36 to 53, many requiring medical attention.
- Costa’s expert estimated her seat was about 141 feet from home plate and the ball’s speed at impact was at least 90 mph, leaving virtually no time to react.
- Costa alleged she was unaware of the specific risk posed by sitting in an unscreened area and claimed the club failed to provide adequate warnings.

## Issues

1. Whether the operator of a baseball stadium owes spectators a duty to warn of the danger of being struck by foul balls.
2. Whether the risk of foul balls entering the stands is so open and obvious that, as a matter of law, no duty to warn arises on a negligent-failure-to-warn theory.

## Decision

- The Appeals Court affirmed summary judgment for the Boston Red Sox Baseball Club.
- The court held the club owed no duty to warn Costa of the danger of being hit by a foul ball because the danger is sufficiently open and obvious as a matter of law.
- The court rejected the argument that the frequency or severity of prior foul-ball injuries created a duty to provide additional warnings.
- Because Costa advanced only a negligent-failure-to-warn theory, the claim failed once the court found no duty to warn.

## Legal Principles

- A landowner is not liable for failing to warn of dangers that would be obvious to a person of average intelligence.
- For risks inherent in and widely known to be associated with an activity (such as foul balls at baseball games), a proprietor generally has no duty to warn when the risk is open and obvious.
- Evidence showing that an injury may be difficult to avoid, or that similar injuries have occurred, does not by itself transform an open and obvious risk into a non-obvious hazard for duty-to-warn purposes.
- When a plaintiff limits the case to failure to warn, courts may resolve liability at the duty stage without reaching broader questions about design choices or protective measures.

## Conclusion

The court held that being struck by a foul ball is a well-known, open and obvious risk of attending a baseball game, so the stadium operator had no duty to warn; summary judgment for the Boston Red Sox Baseball Club was properly affirmed on the plaintiff’s sole failure-to-warn theory.


Costa v. Bos. Red Sox Baseball Club, 61 Mass. App. Ct. 299, 809 N.E.2d 1090 (2004)