Major League Baseball and the Chicago Cubs have been sued by John “Jay” Loos after he was hit by a foul ball in August at Wrigley Field. Seated along the first-base line, Loos was hit in the left eye and subsequently removed from Wrigley by stretcher and ambulance. Six weeks after the injury, Loos has no vision in his left eye, has had three surgeries, is planning for two more, and is at risk of losing his eye. Ballparks have netting behind home plate to protect fans from foul balls. However, most ballparks – including Wrigley – have not extended netting along the dugouts. In 2015, MLB recommended that teams extend nets, but only ten of thirty teams followed the recommendation. After Loos’s injury, Cubs’ president of baseball operations announced the team would extend the nets beginning next season.

Courts historically observe the “Baseball Rule” to limit ballparks’ liabilities for foul ball injuries. The idea is that fans should be on notice of foul balls in the ballpark and therefore accept and assume risk of injury. Furthermore, courts are hesitant to impose liability when teams include an assumption of risk on the ticket and remind fans to stay vigilant throughout the course of the game. Illinois specifically has the Baseball Facility Liability Act, which declares owners are not liable unless the injured fan is seated behind a screen or other protective device or the owner acted with wanton and willful disregard for the fan’s safety. Loos’s seat at Wrigley was not placed behind a screen or any other protective barrier.

In response to Loos’s and others’ injuries in recent years, there have been calls to improve safety at ballparks. The MLBPA attempted to negotiate safety standards in the latest contract negotiations. In Japan, extended netting is standard. Local politicians and national figures, such as Senator Dick Durbin (D-IL), have called for increased precautions. Loos is one of several fans this baseball season to suffer a foul ball injury, and based on 100 years of precedent under the Baseball Rule, the odds are not in his favor.

Ian Ferrell is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).