Cubs fly the L on injury appeal
Wednesday, Mar 17, 2021 - Posted by Rich Miller
* Bloomberg…
Two weeks before the first pitch of the season, the Chicago Cubs have already whiffed on an effort to force an injured fan into arbitration, in a ruling that could undermine a practice teams use to avoid litigation.
In a unanimous decision issued Tuesday, a state appeals court in Illinois upheld a trial court decision allowing a lawsuit by the fan to go forward. The court ruled that the arbitration provision—in small type on the back of the ticket, referring the holder to a web page with more information—was “so difficult to find, read or understand” that the fan couldn’t have known what she was agreeing to.
After a rash of fan injuries in recent years, Major League Baseball franchises have installed protective netting. That move has in turn given rise to a new batch of legal claims from injured fans who claim the effort is insufficient, challenging the century-old “baseball rule” that fans assume the risk of attending a game. Companies generally prefer arbitration since it’s secretive, they have a say in the selection of the judges, and the rulings are final, with only limited rights to appeal.
* Clifford Law handled the suit…
An Illinois Appellate Court today (Tuesday, March 16, 2021) held that a young woman hit in the face and injured by a foul ball at Wrigley Field may move forward with her civil lawsuit for damages and is not limited to arbitration against Major League Baseball.
In a unanimous opinion written by Justice Fitzgerald Smith, the appellate court affirmed the decision of the trial court that “the arbitration provision was effectively ‘hidden in a maze of fine print, unable to be appreciated by the Plaintiff,’” as stated by the trial court. Justices Terrence Lavin and Aurelia Pucinkski affirmed the opinion on the First District panel.
Laiah Zuninga, 28, attended the Chicago Cubs game on Aug. 28, 2018, when a foul ball struck her in the face, knocking her unconscious, creating permanent and severe head and facial injuries. MLB had announced earlier that year that all 30 stadiums would have netting that reached the far end of each dugout.
Zuninga sued MLB for negligence after obtaining the ticket to the game from her father after he won it at a raffle. She said she never read any fine print on the ticket or visited the Cubs website regarding any language regarding injuries sustained at the ballpark.
The appellate court held that “factors exist in this case that make the arbitration provision difficult or onerous to find or obtain at the time of using the ticket such that we cannot fairly say that the plaintiff was aware of what she was agreeing to. Principal among these factors is the fact that the paper ticket possessed by the plaintiff did not contain the actual terms and conditions of the contract, but merely contained a summary of the terms and conditions and informed ticket holders that they had to either access a website or visit the Cub’s administrative offices to obtain and read the full terms and conditions they were purportedly agreeing to, including the 8-paragraph arbitration provision.”
The appellate court went on to say that to access this language, one must have a cellular device, internet connection and the ability to read it likely when entering the stadium amidst a great deal of commotion which, when printed is four and a half single spaced pages.
“The likelihood that a ticket holder will actually find, obtain, and read the full arbitration provision by accessing the Cubs’s website or visiting the administrative office is diminished even further by the fact that minimal effort is made on the ticket itself to draw a ticket holder’s attention to the need to do one of these things in order to understand that they are agreeing to binding arbitration by using the ticket to enter Wrigley Field.”
Tracy Brammeier, associate at Clifford Law Offices, is handling this matter at the firm and successfully argued the matter before the Illinois Appellate Court.
The opinion is here.
- Amalia - Wednesday, Mar 17, 21 @ 7:44 am:
Major League typo page one.
- PublicServant - Wednesday, Mar 17, 21 @ 8:50 am:
When you attend a game, pay attention. That being said, when injuries occur, pay up. Double secret arbitration ain’t right.
- Perrid - Wednesday, Mar 17, 21 @ 9:00 am:
Arbitration is shady as heck, so I like that finding generally, but anyone attending a game should know to watch out. Accidents happen, calling this negligence and going for a payday is gross. I’ll caveat that a bit, asking for MLB to pay medical expenses would be fine, but this sounds more like they’re looking for a payday to me.
- Jose Abreu's Next Homer - Wednesday, Mar 17, 21 @ 9:21 am:
Pay attention but make sure you walk around the concourse while not watching the action, look at the scoreboard and videoboard as there’s always stuff up there, look at your cell phone cuz we’ll give you reasons to. Yeah, really easy to pay full attention to the action with all the impulses the stadium experience is giving you.
- Ducky LaMoore - Wednesday, Mar 17, 21 @ 9:25 am:
“Arbitration is shady as heck”
Yeah, it is a private trial where the business picks the judge and jury. Shady doesn’t even begin to describe how I feel about binding arbitration. It should be illegal. You should not be able to sign away your constitutional rights coram eo.
- Flyin' Elvis'-Utah Chapter - Wednesday, Mar 17, 21 @ 9:29 am:
Been to many a minor league game where “fans” were watching everything but the game.
- Not the Dude - Wednesday, Mar 17, 21 @ 9:46 am:
I remember when this happened. Very scary. Unfortunately baseball in general has some old school rules and habits. I remember my high school baseball coach sitting on a bucket outside the dug out during our games.
- Victor - Wednesday, Mar 17, 21 @ 9:48 am:
When you are sitting within the arc of first base to third base, next to the field; you can get hurt even if you are paying attention. Plus the remedy was already there for teams (extended netting). I have sat behind the netting and you barely see it when looking at the action on the field. I don’t understand why teams were resisting extending it further to prevent just this kind of injury.
- Oswego Willy - Wednesday, Mar 17, 21 @ 10:06 am:
Baseball as an industry has been trying to meet the needs of safety versus the intimacy of smaller ballparks and sight lines… but still trying to make netting an embraceable thing too.
The ball club is weak in so many ways, one is its stingy monetary ways, including in this instance.
Good on the courts here.
- Cool Papa Bell - Wednesday, Mar 17, 21 @ 10:07 am:
As foul territory has shrunk over the past decades - just look how much closer the seats are at Wrigley now than they were 20 years ago - even a major leaguer would have a hard time diving out of the way of some of those foul balls. Its actually incredible that more people are seriously hurt in the stands.
- Chicago Cynic - Wednesday, Mar 17, 21 @ 10:25 am:
Can’t help yourself from rubbing salt in Cubbie wounds, can you Rich? You should have plenty of opportunities to do so this year.
- Amalia - Wednesday, Mar 17, 21 @ 10:29 am:
Seriously, how does the Court issue an opinion and misspell League (”Major Leage Baseball”) right at the top of the first page? I could see a word in the body, but in the name of the case? Sloppy.
- Quibbler - Wednesday, Mar 17, 21 @ 10:38 am:
== Seriously, how does the Court issue an opinion and misspell League (”Major Leage Baseball”) right at the top of the first page? ==
If you’re scandalized by a typo, I’ve got some news for you about what else can go wrong in our chronically under-funded court system.
- Groucho - Wednesday, Mar 17, 21 @ 10:42 am:
I still cant believe it has taken well over 100 years to put up the additional netting to protect fans.
Regarding paying attention, even if you are paying attention it is still difficult to avoid a 90 mile an hour slicing line drive, especially if your 7 years old or 85 years old or a little tipsy from the multiple $11 bears you have been drinking.
- Hugh E. Keough - Wednesday, Mar 17, 21 @ 10:49 am:
The race isn’t always to the swift,
Nor the battle to the strong,
But Bob Clifford is the best way to bet.
- truthteller - Wednesday, Mar 17, 21 @ 10:56 am:
you can watch any ballgame and see 50% of the fans on their cell phones and not paying any attention to what is going on. Funny how lawyers impact so many elements of life where personal responsibility should
- Red Ketcher - Wednesday, Mar 17, 21 @ 11:00 am:
Sloppy Typo in Caption for sure , but in reading the opinion find it interesting . Seems wll written and reasoned.
And would say the Trial Court Judge Flanagan deserves credit for sorting through it all and making a decision that has been Affirmed.
Play Ball
- Roman - Wednesday, Mar 17, 21 @ 11:01 am:
Wow, you mean foul balls go into the stands and could hurt people who aren’t paying attention? Who knew? I mean, c’mon, baseball has only been drawing fans to ballparks for 150 years now. That’s not enough time for average Joes and Janes to realize they need to be aware of a line drive coming their way. Thank god there are legal advocates like Bob Clifford (who aren’t in this for the money) who are willing to defend our right to work on a tan and focus on our Instagram and twitter feeds while downing beers at the ballpark.
- Quibbler - Wednesday, Mar 17, 21 @ 11:07 am:
== Wow, you mean foul balls go into the stands and could hurt people who aren’t paying attention ==
Cool, if baseball fans are dum-dums who deserve to be injured and these claims are obviously meritless, they can easily be dispensed with in the public court system rather than in a forced private arbitration based on some laughably obscure fine print.
- Cool Papa Bell - Wednesday, Mar 17, 21 @ 11:15 am:
@Roman - You know that over the past 20 years, owners have been pushing seats closer and closer to the field, building massive video boards to draw peoples attention, selling more items by vendors in the seats during the games and now pushing in-game betting via phone apps?
I forgot people were still only going to the games with their Fedora on and bringing a pencil to keep score.
- Hugh E. Keough - Wednesday, Mar 17, 21 @ 11:32 am:
=== Wow, you mean foul balls go into the stands and could hurt people who aren’t paying attention? ===
People are consistently over-estimating their own abilities.
Imagine having a baseball fired at you at 100 miles an hour while you are sitting in a chair with other fans packed around you like sardines.
Also, the ball is traveling in a shallow arc not a straight line, so instead of a full second you’ve got maybe .2 to figure out which way to move.
Also, if the ball club wanted you looking at the action all of the time, they wouldn’t have beer vendors in the stands.
- Shemp - Wednesday, Mar 17, 21 @ 12:07 pm:
Looking forward to the day courts, lawyers and legislators can make it so I can’t leave my house without a helmet, mask and full pads so someone doesn’t get sued. Life has risks. You don’t get compensated every time every risk can’t be fully mitigated, especially when you voluntarily chose an activity or event. Baseball has been going on for 150 years with over 200,000 games played. This shouldn’t come as a surprise.
- Ducky LaMoore - Wednesday, Mar 17, 21 @ 1:02 pm:
“Looking forward to the day courts, lawyers and legislators can make it so I can’t leave my house without a helmet, mask and full pads so someone doesn’t get sued.”
It’s called the first amendment, bud. Courts, lawyers and legislators have nothing to do with it. People have a right to petition the government.
- Oswego Willy - Wednesday, Mar 17, 21 @ 1:13 pm:
There are very few times you can side with sports teams’ ownership.
It’s rare.
This is another case… where siding with ownership is a head scratcher.
I’ve been known a time or two to catch a ball game at a facility, live.
This instance is beyond garden variety of what could be “expected”.
===MLB had announced earlier that year that all 30 stadiums would have netting that reached the far end of each dugout.===
To the clubs, the liability outweighed to cost and discomfort of additional netting.
Let that sink in.
- Candy Dogood - Wednesday, Mar 17, 21 @ 1:17 pm:
Funny, I don’t know any fans that fly the L flag.
- Ducky LaMoore - Wednesday, Mar 17, 21 @ 6:19 pm:
Candy, Sox fans fly it after they beat the Cubs. That’s the only time I’ve seen it.