## Facts

- An 11-year-old spectator attended a professional baseball game at the Astrodome with her father.
- The stadium provided a screened seating area behind home plate, and screened seats were available when the spectators chose their seats.
- The spectators chose to sit in an unscreened area several rows behind the first-base dugout.
- Late in the game, the child moved to an area behind the first-base dugout and was struck near the eye by a line-drive foul ball.
- The child and her father sued the stadium operator alleging negligence, including failure to warn of the foul-ball danger in the unscreened area; they also asserted theories involving additional screening and an “attractive nuisance” related to the dugout cover.
- A jury found the stadium operator negligent for failing to warn and awarded actual and punitive damages, but found no liability on the attractive-nuisance and additional-screening theories.
- The trial court granted judgment notwithstanding the verdict (JNOV) on the failure-to-warn negligence and causation findings, and the plaintiffs appealed.

## Issues

1. Whether a baseball stadium operator owes a duty to warn spectators in unscreened areas of the risk of being struck by batted balls.
2. Whether Texas comparative negligence alters the “limited duty” rule for baseball spectator injuries by expanding duties otherwise negated by an open-and-obvious danger.
3. Whether JNOV was proper despite the jury’s findings of negligence and proximate cause based on failure to warn.

## Decision

- The court of appeals affirmed the JNOV for the stadium operator.
- The court held that, as a matter of law, the operator owed no duty to warn of the foul-ball risk in unscreened areas because the danger is open and obvious.
- The court held that the operator satisfied its limited duty by providing a reasonable number of screened seats for spectators who desire protection and making such seats available.
- The court held that comparative negligence affects fault allocation only after a duty exists and does not create a new duty to warn of an open-and-obvious foul-ball hazard.
- Because no duty to warn existed, the jury’s failure-to-warn liability and damages findings could not support judgment for the plaintiffs.

## Legal Principles

- A baseball stadium operator’s duty regarding foul-ball injuries is limited to providing a reasonable number of adequately screened seats for spectators who may reasonably be expected to request them.
- When that limited duty is met, the operator generally has no additional duty to warn spectators in unscreened areas of the risk of being struck by batted balls.
- The risk of being hit by foul balls at a baseball game is treated as open and obvious; absence of duty can be determined as a matter of law.
- Comparative negligence does not expand duties; it applies only to apportion responsibility where a legal duty and breach are established.

## Conclusion

The court upheld judgment for the stadium operator, ruling that providing reasonably available screened seating discharged the operator’s duty and that the open-and-obvious foul-ball hazard created no further duty to warn, so JNOV properly set aside the jury’s failure-to-warn verdict.


Friedman v. Houston Sports Ass'n, 731 S.W.2d 572 (Tex. App.—Houston [1st Dist.] 1987)