As Tonya Carpenter continues recovering from injuries suffered at Fenway Park - her family announced Monday her condition was upgraded to fair - a legal expert in venue safety said a century-old legal principle will make it difficult for her to hold the Red Sox or Major League Baseball liable.

Steve Adelman, a Phoenix-based attorney who's also admitted to practice in Massachusetts, says a "harsh" legal principle loosely known as the "baseball rule" puts the assumption of risk on fans far more than any fine print on a ticket stub or warning sign in a grandstand.

"What it says is because baseball is America's national pastime, we are all presumed to have certain knowledge about the likelihood that objects can fly off the field into the stands," says Adelman.

"The law imposes a duty on fans to take reasonable precautions for their own safety. The legal effect of that is what's called 'assumption of risk'. Under assumption of risk doctrine, which is an old doctrine, if somebody is even 1% at fault for their own injuries, they are not entitled to any legal recovery whatsoever as a matter of law.

"That's the baseball rule in a nutshell. So if you're sitting close enough to the field where you might get hit by a bat or a ball, you have a 100% duty to watch out for objects and make sure you're paying attention. And if you choose not to pay attention, you can either sit behind the screen or sit far enough away so that an object wouldn't reach you."

Adelman, who has written extensively on the safety of sports venues, including Fenway Park, said that is a very strict type of legal construct. But it has evolved.

"That's very harsh. Most of the time in modern society we don't use assumption of the risk anymore," he said. "Instead, we use what's called 'pure comparative fault'. And so we look at everyone's fault."

The baseball rule is a function of time and location, said Adelman. The time covers the game during each half inning, when the field is occupied by players and when balls are in play, but not the time between innings. The location refers to the proximity to the action. The closer you are, the more of a duty you have to pay attention.

Carpenter was injured at Fenway Park Friday night in the top of second inning of the game between the Red Sox and A's when the end of Brett Lawrie's bat broke off, flying into the stands and hitting Carpenter in the head, leaving her with injuries that were termed life-threatening.

But the ball Lawrie hit was put into play. So, if Carpenter were paying attention, it is likely she would have been watching the ball and not the bat.

"That's an interesting issue," said Adelman, who is not directly involved in the Fenway incident. "The 'baseball rule' has been chipped away at over the last 15, 20 years. But still the essence of it is probably exactly what Tonya Carpenter was dealing with that night - really a function of time and location.

"So the farther that one gets from either during game time or close enough so that it's likely that an object could fly off the field into the stands, as you get farther from those two things, the Baseball Rule has less application. But here, Tonya Carpenter was injured during an at-bat. So the time was during a half inning, and her location was, as I understand it, second row, (near) the dugout, but not behind the screen. So her location was squarely in territory where one is supposed to be paying attention because it is quite likely that objects will fly off the field and into the stands."

Carpenter remains hospitalized at Beth Israel Deaconess Medical Center. On Friday, she sat just outside the protective netting, on the third base side of home plate. What if a fan wanted to sit behind the protective screen but there are no seats available? Fenway's protective netting covers a few sections directly behind home plate, where available seats are very limited.

"Then you have two choices," Adelman said. "If you really don't want to pay attention, go to a different part of the ballpark. There are lots of seats up the right field line where the likelihood of getting hit by anything except a spilled beer or a hot dog is essentially zero. Or pay attention."

Major League Baseball commissioner Rob Manfred says the sport "must react strongly to an incident like this," but termed his stance more a "reevaluation" and said any changes would result from a three-way dialogue between the league, individual teams and the players' association.

"From Major League Baseball's perspective, when you have an issue like this, an incident like this, you have to go back and reevaluate where you are on all of your safety issues, and trust me, we will do that," Manfred said Monday before baseball's draft.

"It's important not to lose sight of the fact that we have taken important steps in this area. Bat safety is much improved from where it was a few years ago. We spent a lot of time, effort and money to make sure that our bats are safer and that we have less of these incidents."

Some teams have been resistant to extending the netting, while the Major League Baseball Players' Association has lobbied for expansion.

Could that add to a team's responsibility?

"It adds an argument about that," Adelman said. "Baseball hasn't changed a whole lot since the 19th century. Fenway, even with all of its safety renovations over the last 10 years or so, is still fundamentally an early 20th-century ballpark in at least its basic configuration. So the proximity to the field is one of the things that people love about Fenway. In this case, however, it's a two-edged sword."

Curiously, the baseball rule applies only to the sport for which it is named.

"Literally generations of people have been going to baseball games," says Adelman, noting it extends to the 1870s. "As a matter of law we're simply presumed to have a certain amount of knowledge as Americans. So there really isn't an analogy. Football, which is arguably even more popular these days, football's a relatively recent sport compared to baseball."

But the tiny print on the back of the ticket does not absolve a team of responsibility, Adelman said. Purchase of the ticket creates an 'adhesion contract,' which he likened to buying a plane ticket. You can't negotiate after with an airline after the purchase for a wider seat.

"You buy the ticket and you take your lumps," he said. "Going to the ballpark is the same."

In 2008, attending her first baseball game, Susan Rhodes was hit at Dodger Stadium when the Rockies' Todd Helton shattered his bat and the barrel slammed into Rhodes' jaw, breaking it in two places. With attorney Alan Ghaleb, Rhodes sued the Dodgers and bat manufacturer Rawlings. But Ghaleb could not overcome the assumption of risk, eventually dropping the case.

"It is so sad," Ghaleb said of Carpenter's injuries. "Another tragedy that could have been prevented.

"No other industry or venture would allow people to be exposed to that level of risk with such an easy way to fix it. And still (baseball teams) have this kind of carte blanche and they don't have to take any responsibility for the injuries. So it's just terrible in my opinion.

"We knew it was going to happen to somebody else. It's just a matter of time before a catastrophic injury or a fatality will occur. We're risking a fatal case one of these days. It makes no sense to me. It boggles my mind. All they have to do is put up netting. And they refuse to do anything, which is galling. If you or I hosted a party and we had something like that at our house, I bet you we'd be responsible."

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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