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Tucker v. ADG9/21/2004
ecluded as a matter of law. The question is one for the jury.
Id. at 928 (emphasis added) (citations omitted).
Similarly, in Phelps, we determined " he characteristics of the offending bowl as a hidden or open hazard at the time of the injury presented an issue of fact rather than one of law." Phelps, 925 P.2d at 894. Again, we noted in Phelps that on the particular facts presented there, a jury question was raised as to "whether a reasonable person would recognize that the bowl was in such a position that it appeared perfectly harmless but in fact presented the potential for injury." Id. (emphasis added).
Plaintiffs in this case do not argue that on the facts of this case, the risk of injury to a spectator by a ball while attending a baseball game might be construed as a hazard with a "deceptively innocent appearance" or that its hazardous extent could not have been anticipated. Plaintiffs merely assert that the issue of whether Plaintiff in this case "could appreciate that sitting where he sat in the ballpark would subject him to danger ought to be a jury question." Hull held spectators assume "all normal and ordinary risks attendant upon the use of the [ballpark]" and this pronouncement is tantamount to the conclusion that the risk of injury by a foul ball to a spectator seated in an unscreened seating area of a ballpark is an open and obvious danger as a matter of law. Hull, 163 P.2d at 982 (Second Syllabus by the Court). We have further determined " he risk of being struck by a batted or thrown ball is one of the natural risks assumed by spectators attending a ball game." Lang v. Amateur Softball Ass'n of America, 1974 OK 32, 520 P.2d 659, 662 (citing Mann v. Nutrilite, Inc., 136 Cal. App.2d 729, 289 P.2d 282, 285 (1955)). The rule in Hull concerning the open and obvious nature of the danger is fact specific, as are the determinations in both Travis and Phelps. Therefore, despite the different outcomes reached on the basis of unique factual circumstances, the cases cited by Plaintiffs are not inconsistent with Hull.
IV. SUMMARY
In sum, we hold the trial court correctly entered judgment in Defendants' favor as a matter of law pursuant to Hull v. Oklahoma City Baseball Co., 1945 OK 194, 163 P.2d 982, which held a spectator seated in an unscreened area of a grandstand at a baseball game assumes all normal or ordinary risks attendant upon the use of the premises. In addition, we reject Plaintiffs' quest for overruling this longstanding case. The trial court's Journal Entry of Judgment is affirmed in its entirety.
Upon Motion to Retain previously granted,
JUDGMENT OF THE TRIAL COURT IS AFFIRMED.
ALL JUSTICES CONCUR.
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