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Tucker v. ADG9/21/2004
ndition and fails to warn the visitor so that the latter may avoid the harm.
Id. at 984. (citation omitted).
The baseball stadium at issue in Hull included areas of spectator seating which were protected by a protective screen and areas of unscreened spectator seating. The plaintiff in Hull was injured upon being struck by a foul ball while seated in an unscreened portion of a grandstand. Defendants there had "screened several box seats, some of which were in front of the part of the grandstand occupied by plaintiff. However, the screens protecting the box seats did not extend high enough and were not intended to protect occupants of such seats used by plaintiff." Id. at 983. The issue in Hull was whether it was negligent for defendants to fail to screen that portion of the grandstand where plaintiff was seated. The plaintiff in Hull argued that "reasonable men may differ as to whether the facts constitute negligence, [and therefore,] the question is one for the jury to decide." Id. (citation omitted). Defendants in Hull, distinguishing cases of injury resulting from defective conditions of grandstand structures or protective screens, contend that the only duty that devolved upon defendants was to afford protected seats to those of the patrons who desired them and that defendants performed this duty by screening a reasonable number of seats.
Id. The trial court in Hull sustained the defendants' theory, the cause was dismissed and ultimately, this Court affirmed.
While the rule in Hull has been summarily labeled "assumption of the risk," the Hull Court's ruling actually encompasses several additional key determinations as a matter of law: the absence of a duty on the part of the owner or occupant of the premises to reconstruct or alter the premises so as to obviate known and obvious dangers, and the absence of defendants' liability for a spectator's injury resulting from an obvious danger or one that should have been observed in the spectator's exercise of ordinary care. Hull, 163 P.2d at 982. Further, Hull's conclusion that "there was no unreasonable risk not appreciated by the plaintiff as a spectator of the baseball game," amounts to a determination that the risk of injury by a foul ball is a normal or ordinary risk, which is open and obvious to a spectator at a baseball game as a matter of law, for which defendants have no duty to warn. Id. at 984.
In this case, the facts and allegations closely mirror those of the Hull case. Plaintiff here alleged he was seated "in the luxury suite seating area" while observing the baseball game at the time he was struck and injured by a foul ball. Plaintiff in this case similarly alleged the protective net behind home plate "wasn't large enough and was too low to protect the Plaintiff from injury." Plaintiffs here further argued in their Response to Defendant Redhawks' Amended Motion to Dismiss that their Petition "alleges [Plaintiff] sat behind a screen but that the screen was inadequate." Notably absent from both Hull and this case are any allegations of defective conditions of either grandstand structures or protective screens. Likewise, in neither case do the plaintiffs allege defendants failed to screen a reasonable number of seats. Rather, in both Hull and here, plaintiff alleged the protective screen behind home plate was too low to protect the area in which plaintiff was seated. The facts in this case are analogous to the facts in Hull, and as such, the case is subject to dismissal pursuant thereto.
III. PLAINTIFFS' CHALLENGES TO THE VIABILITY OF THE HULL CASE
A. Plaintiffs' Constitutional Challenge
Plaintiffs attack the Hull case and its progeny on the basis
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