Filed 2/18/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION SEVEN

SUMMER J., a Minor, etc.,             B282414 and B285029

       Plaintiff and Appellant,       (Los Angeles County
                                      Super. Ct. No. BC554468)
       v.

UNITED STATES BASEBALL
FEDERATION,

       Defendant and Respondent.




     APPEALS from a judgment and postjudgment order of the
Superior Court of Los Angeles County, Ross M. Klein, Judge.
Reversed and remanded with directions.
     Steven B. Stevens, Professional Law Corp., Steven B.
Stevens; The Law Offices of Thomas M. Dempsey, Thomas M.
Dempsey; Selarz Law Corp. and Daniel E. Selarz for Plaintiff and
Appellant.
     Manning & Kass, Ellrod, Ramirez, Trester, Sevan Gobel
and Ladell Hulet Muhlestein for Defendant and Respondent
United States Baseball Federation.
                    _______________________
      Writing for the New York Court of Appeals to reverse a
judgment in favor of a young man injured while riding an
attraction at the Coney Island amusement park, then-Chief
Judge Benjamin Cardozo applied the common law doctrine
volenti non fit injuria (“to a willing person, injury is not done”)
and explained, “One who takes part in such a sport accepts the
dangers that inhere in it so far as they are obvious and necessary,
just as a fencer accepts the risk of a thrust by his antagonist or a
spectator at a ball game the chance of contact with the ball.”
(Murphy v. Steeplechase Amusement Co. (1929) 250 N.Y. 479,
                         1
482-483 [166 N.E. 173].) Chief Judge Cardozo’s embrace of a
baseball fan’s fundamental responsibility to protect himself or
herself from injury from a foul ball—often referred to as the
                2
“Baseball Rule” —was consistent with the state of the law
throughout the country. The California Supreme Court in Quinn
v. Recreation Park Assn. (1935) 3 Cal.2d 725, although holding a
stadium operator had a limited duty to provide a screened area at
the ballpark, nonetheless observed, “‘[I]t has been generally held


1
      Chief Judge Cardozo famously went on to advise, “The
timorous may stay at home.” (Murphy v. Steeplechase
Amusement Co., supra, 250 N.Y. at p. 483; see Kaufman, Cardozo
at 100 (2012) 13 J. App.Prac. & Process 183, 187.)
2
       See, e.g., Grow & Flagel, The Faulty Law and Economics of
the “Baseball Rule” (2018) 60 Wm. & Mary L.Rev. 59, 63-64
(“[u]nder what has commonly become known as the ‘Baseball
Rule,’ courts for over a century have consistently held that
professional baseball teams are not liable for injuries sustained
by fans by bats or balls leaving the field of play, so long as the
teams have taken minimal precautions to protect their spectators
from harm”).



                                 2
that one of the natural risks assumed by spectators attending
professional games is that of being struck by batted or thrown
balls; that the management is not required, nor does it undertake
to insure patrons against injury from such source.’” (Id. at
p. 729.) More than 60 years later, the court of appeal in Lowe v.
California League of Prof. Baseball (1997) 56 Cal.App.4th 112,
123 noted, “[F]oul balls hit into the spectators’ area clearly create
a risk of injury. If such foul balls were to be eliminated, it would
be impossible to play the game. Thus, foul balls represent an
inherent risk to spectators attending baseball games. . . . [S]uch
                 3
risk is assumed.” (See generally Neinstein v. Los Angeles
Dodgers, Inc. (1986) 185 Cal.App.3d 176, 181 [“it is not the role of
the courts to effect a wholesale remodeling of a revered American
institution through application of the tort law”].)
       In sharp contrast to this judicial view of fans’
accountability for their own protection from balls hit into the
stands, at Major League Baseball’s 2019 winter meetings
Commissioner Rob Manfred announced that all 30 major league
teams will expand the protective netting in their stadiums
“substantially beyond the end of the dugout” for the 2020 season
and that seven or eight stadiums will run netting all the way to
the foul poles. (Young & Cosgrove, Baseball commissioner says
all 30 MLB teams will expand protective netting for 2020 season

3
       The issue in Lowe was whether the distraction caused by a
minor league team’s mascot increased the inherent risk of a
spectator being hit by a foul ball. Reversing the trial court’s
order granting summary judgment in favor of defendants, the
court of appeal held that was “an issue of fact to be resolved at
trial.” (Lowe v. California League of Prof. Baseball, supra,
56 Cal.App.4th at p. 123.)



                                  3
(Dec. 11, 2019) <https://www.cnbc.com/2019/12/11/baseball-
commissioner-says-all-30-mlb-teams-to-expand-protective-
netting.html> [as of Feb. 18, 2020], archived at <perma.cc/66dg-
72DB>.) Extended netting is also being installed in many minor
league ballparks. (Reichard, All MLB Ballparks Will Feature
Extended Netting in 2020, Ballpark Digest (Dec. 11, 2019)
<https://ballparkdigest.com/2019/12/11/all-mlb-ballparks-will-
feature-extended-netting-in-2020/> [as of Feb. 18, 2020], archived
at <perma.cc/MJQ7-9HPT>.)
       To what extent should this modern, practical view of the
importance of protective netting shape the legal system’s
understanding of the risks inherent in attending a baseball game
and the responsibility of stadium owners to minimize spectator
injuries from foul balls? Phrased more specifically in terms of
California tort law and the doctrine of primary assumption of
risk, would the provision of adequate protective netting in a
perceived zone of danger behind home plate (or for field-level
seating along the first- and third-base lines between home plate
and the dugouts) increase safety and minimize the risk of injury
to spectators without altering the nature of baseball as it is
played today in professional and college ballparks? We conclude
it would and, accordingly, reverse the judgment entered in favor
of the United States Baseball Federation (US Baseball) after the
trial court sustained without leave to amend US Baseball’s
demurrer to the first amended complaint of 12-year-old
Summer J., who was seriously injured by a line drive foul ball
while watching a baseball game sponsored by US Baseball.
      FACTUAL AND PROCEDURAL BACKGROUND
     Summer attended US Baseball’s national team trials on
August 17, 2014 at Blair Field, located on the campus of



                                4
California State University, Long Beach (CSULB), a stadium
jointly owned and maintained by the City of Long Beach and
CSULB. Summer was seated in the grandstand or “spectator
bleachers,” an area of the stadium without a protective screen or
netting. When she was “momentarily distracted from the field of
play,” Summer was struck in the face by a line drive foul ball,
which caused serious injury, including damage to her optic nerve.
       Through her guardian ad litem, Lee J., Summer sued the
City of Long Beach, CSULB and US Baseball, asserting in her
original and first amended complaints causes of action for
                                    4
negligence and premises liability. As to US Baseball, Summer
alleged it sponsored the game at which she was injured and
controlled the stadium on that day. She further alleged
inadequate protective netting was provided for spectators at
Blair Field “in the perceived zone of danger behind home plate.”
The presence of some limited netting at the stadium gave
Summer a false sense of security that watching the game in a
seat beyond this protected area would be safe. Summer further
alleged US Baseball and the other defendants were aware of the
inadequate nature of the netting, yet failed to provide any
warnings regarding the danger of being struck by a batted ball.
       US Baseball demurred to the first amended complaint,
contending the lawsuit was barred under the primary
assumption of risk doctrine. US Baseball also argued the alleged
dangerous condition at the stadium was open and obvious,
relieving it of any duty to warn or correct the condition it might
otherwise have.


4
     The City of Long Beach and CSULB are not parties to this
appeal.



                                5
      While the demurrer was pending, Summer moved for leave
                                      5
to file a second amended complaint. She argued she could
provide further factual allegations regarding dangers at Blair
Field from hard-hit foul balls that were not inherent risks in the
sport of baseball, including the failure to install protective
netting for field-level seating along the first- and third-base lines
between the batter’s box and the dugouts and the configuration of
seating that brought spectators in the front rows closer to the
field of play than 70 feet as recommended for college stadiums, as
well as the provision of enhanced Wi-Fi to encourage use of
mobile devices and brightly colored advertising on the outfield
fences that distracted fans from the activity on the field.
        After briefing and oral argument the court sustained
US Baseball’s demurrer without leave to amend, ruling
Summer’s claims were barred under the primary assumption of
risk doctrine and the proposed amendments would not cure the
defects in the pleading.
        Judgment, including an award of costs in an amount to be
determined, was entered in favor of US Baseball on February 28,
2017. US Baseball filed its memorandum of costs on March 9,
2017, requesting a total of $4,902.24. Summer moved to tax
costs. The trial court denied the motion on June 30, 2017.
Summer filed timely notices of appeal from the judgment on
May 1, 2017 (B282414) and from the postjudgment order denying
her motion to tax costs on August 28, 2017 (B285029).

5
      The additional allegations in the initial iteration of the
proposed second amended complaint were primarily directed to
the City of Long Beach and CSULB. In a revised version filed
shortly after she had filed her opposition to US Baseball’s
demurrer, Summer focused on US Baseball.



                                  6
                          DISCUSSION
       1. Standard of Review
       “In reviewing an order sustaining a demurrer, we examine
the operative complaint de novo to determine whether it alleges
facts sufficient to state a cause of action under any legal theory.”
(T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145,
162.) “In making this determination, we must accept the facts
pleaded as true and give the complaint a reasonable
interpretation.” (Mathews v. Becerra (2019) 8 Cal.5th 756, 762.)
“If the demurrer was sustained without leave to amend, we
consider whether there is a ‘reasonable possibility’ that the defect
in the complaint could be cured by amendment.” (King v.
CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050.) The burden is
on the plaintiff to prove that amendment could cure the defect.
(Ibid.)
       Application of the primary assumption of risk doctrine is
also a question of law subject to de novo review. (Kahn v. East
Side Union High School Dist. (2003) 31 Cal.4th 990, 1003-1004
(Kahn); Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11,
23; see Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th
1072, 1083 [“the legal question of duty, and specifically the
question of whether a particular risk is an inherent part of a
sport, ‘is necessarily reached from the common knowledge of
judges, and not the opinions of experts’”]; Staten v. Superior
Court (1996) 45 Cal.App.4th 1628, 1635 [“[t]he determinant of
duty, ‘inherent risk,’ is to be decided solely as a question of law
and based on the general characteristics of the sport activity and
the parties’ relationship to it”]; see generally Vasilenko v. Grace
Family Church (2017) 3 Cal.5th 1077, 1083 [“[t]he existence of a
duty is a question of law, which we review de novo”].) In deciding




                                 7
the issue of inherent risk for purposes of the primary assumption
of risk doctrine, judges and justices “may consider not only their
own or common experience with the recreational activity involved
but may also consult case law, other published materials, and
documentary evidence introduced by the parties on a motion for
summary judgment.” (Nalwa v. Cedar Fair, L.P. (2012)
55 Cal.4th 1148, 1158 (Nalwa); see Cabral v. Ralphs Grocery Co.
(2011) 51 Cal.4th 764, 775-776, fn. 5 [court may consider
published material on legal questions “as an aid to the court’s
work of interpreting, explaining and forming the law” without
formally taking judicial notice of it].)
      2. Knight v. Jewett and Its Progeny: The Principles
         Governing the Primary Assumption of Risk Doctrine
       In Knight v. Jewett (1992) 3 Cal.4th 296 (Knight), in a
plurality decision written by Chief Justice George and
subsequently accepted by other members of the Court except
Justice Kennard (see, e.g., Shin v. Ahn (2007) 42 Cal.4th 482,
491; id. at pp. 500-501 (conc. & dis. opn. of Kennard, J.)), the
Supreme Court reformulated California’s assumption of risk
doctrine and held, applying “primary assumption of risk” in a
sports setting, the plaintiff is said to have assumed the particular
risks inherent in a sport by choosing to participate and the
defendant generally owes no duty to protect the plaintiff from
those risks. “[A] court need not ask what risks a particular
plaintiff subjectively knew of and chose to encounter, but instead
must evaluate the fundamental nature of the sport and the
defendant’s role in or relationship to that sport in order to
determine whether the defendant owes a duty to protect a




                                 8
plaintiff from the particular risk of harm.” (Avila v. Citrus
                                                                  6
Community College Dist. (2006) 38 Cal.4th 148, 161 (Avila).)
      Although individuals generally owe a duty of care not to
cause an unreasonable risk of harm to others (Civ. Code, § 1714,
subd. (a)), when the primary assumption of risk doctrine applies,
“operators, instructors and participants in the activity owe other
participants only the duty not to act so as to increase the risk of
injury over that inherent in the activity.” (Nalwa, supra,
                       7
55 Cal.4th at p. 1154.) “The primary assumption of risk doctrine
rests on a straightforward policy foundation: the need to avoid
chilling vigorous participation in or sponsorship of recreational
activities by imposing a tort duty to eliminate or reduce the risks

6
       “Secondary assumption of risk,” in contrast, “arises when
the defendant still owes a duty of care, but the plaintiff
knowingly encounters the risks attendant on the defendant’s
breach of duty.” (Avila, supra, 38 Cal.4th at p. 161, fn. 6;
see Knight, supra, 3 Cal.4th at p. 308; see also Gregory v. Cott
(2014) 59 Cal.4th 996, 1001 [“Since its reformulation in
Knight . . . , California’s assumption of risk doctrine has taken
two quite different forms. Primary assumption of risk is a
complete bar to recovery. It applies when, as a matter of law, the
defendant owes no duty to guard against a particular risk of
harm. Secondary assumption of risk applies when the defendant
does owe a duty, but the plaintiff has knowingly encountered a
risk of injury caused by the defendant’s breach. Liability in such
cases is adjudicated under the rules of comparative negligence”].)
7
      The Nalwa Court held the primary assumption of risk
doctrine is not limited to activities classified as sports, but
applies to any physical recreational activity that involves an
inherent risk of injury, including, in the case then before it,
bumper car rides at an amusement park. (Nalwa, supra,
55 Cal.4th at pp. 1156-1157.)



                                 9
of harm inherent in those activities. It operates on the premise
that imposing such a legal duty ‘would work a basic alteration—
or cause abandonment’ of the activity.” (Id. at p. 1156.)
        As applied to the potential liability of sports participants
themselves, careless conduct alone is not enough; a participant
owes no duty to protect a coparticipant from particular harms
arising from ordinary or simple negligence. (Avila, supra,
38 Cal.4th at p. 161; Knight, supra, 3 Cal.4th at pp. 308-309.)
Rather, “coparticipants’ limited duty of care is to refrain from
intentionally injuring one another or engaging in conduct that is
‘so reckless as to be totally outside the range of the ordinary
activity involved in the sport.’” (Shin v. Ahn, supra, 42 Cal.4th at
pp. 489-490.)
        The Supreme Court, however, has repeatedly emphasized
the question of duty in the recreational context depends not only
on the nature of the activity but also on the “‘role of the
defendant whose conduct is at issue in a given case.’” (Kahn,
supra, 31 Cal.4th at p. 1004, quoting Knight, supra, 3 Cal.4th at
p. 318.) “Duties with respect to the same risk may vary according
to the role played by particular defendants involved in the sport.”
(Kahn, at p. 1004; accord, Nalwa, supra, 55 Cal.4th at p. 1161
[“[t]he scope of the duty owed to participants in active recreation
. . . depends not only on the nature of the activity but also on the
role of the defendant whose conduct is at issue”]; see Avila, supra,
38 Cal.4th at p. 162 [“we have also noted in dicta that those
responsible for maintaining athletic facilities have a similar duty
not to increase the inherent risks, albeit in the context of
businesses selling recreational opportunities”].) Demonstrating
this distinction, the Court, first in Knight and then again in
Kahn, explained a batter in baseball has no duty to avoid




                                10
carelessly throwing a bat after hitting the ball—such conduct
being an inherent risk of the sport—but “a stadium owner,
because of his or her different relationship to the sport, may have
a duty to take reasonable measures to protect spectators from
carelessly thrown bats. For the stadium owner, reasonable steps
may minimize the risk without altering the nature of the sport.”
(Kahn, at p. 1004; see Knight, at p. 317.) Similarly, in Nalwa,
although the Supreme Court held the operator of a bumper car
ride had no duty to eliminate or minimize head-on bumping, a
risk inherent in the activity, it also recognized the operator
“might violate its ‘duty to use due care not to increase the risks to
a participant over and above those inherent’ in the activity
[citation] by failing to provide routine safety measures such as
seat belts, functioning bumpers and appropriate speed
control . . . .” (Nalwa, at p. 1163; see Hass v. RhodyCo
Productions, supra, 26 Cal.App.5th at p. 38 [as both Knight and
Nalwa teach, “[w]hile the operator or organizer of a recreational
activity has no duty to decrease risks inherent to the sport, it does
have a duty to reasonably minimize extrinsic risks so as not to
unreasonably expose participants to an increased risk of harm”].)
       The significance of the defendant’s role as the operator or
organizer of the activity in defining the scope of its duty to an
injured participant or bystander has been illustrated in a number
of court of appeal decisions applying the primary assumption of
risk doctrine. Thus, the inherent risk in baseball that a pitcher
will be hit by a line drive does not preclude a determination that
the design and use of a particular type of aluminum bat
unreasonably increased the inherent risk of injury to the pitcher
(see Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th
703, 715); the inherent risk in long-distance running of




                                 11
dehydration and hyponatremia does not mean the organizer of a
marathon race had no duty to participants to arrange and
conduct a reasonably safe event by providing sufficient water and
electrolyte replacement drinks, which “‘minimize[d] the risks
without altering the nature of the sport’” (Saffro v. Elite Racing,
Inc. (2002) 98 Cal.App.4th 173, 175, 179; see Hass v. RhodyCo
Productions, supra, 26 Cal.App.5th at pp. 38, 40 [inherent risk of
cardiac arrest in long-distance running does not preclude finding
race organizer had duty to provide emergency medical services]);
and the inherent risk of being hit by a misguided golf shot does
not prevent a finding the owner of a golf course unreasonably
exposed golfers to that risk by its poor design of the course (see
Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127,
        8
134-135; see also Rosencrans v. Dover Images, Ltd., supra,
192 Cal.App.4th at p. 1084 [owner of motocross track has duty to
provide a system for signaling when riders have fallen to
minimize risk of collisions].)
      In Grotheer v. Escape Adventures, Inc. (2017)
14 Cal.App.5th 1283 the court held, under the primary
assumption of risk doctrine, a hot air balloon company had no
duty to protect its customers from crash landings caused by its

8
       The court in Morgan v. Fuji Country USA, Inc., supra,
34 Cal.App.4th at page 134 explained, “[I]f the relationship
between the parties was one of coparticipants, i.e., if the
defendant here were the golfer who hit the errant ball . . . the
defendant would have no liability towards Morgan because there
is an inherent risk that the defendant would hit an errant ball.
Morgan, however, is not suing the other player; he is suing the
owner and operator of the golf course. [¶] Fuji, as owner and
operator of the Castle Creek golf course owes a different duty to
Morgan and other golfers.”



                                12
pilot’s failure to safely manage the balloon’s descent (id. at
p. 1298), but did have a duty to provide passengers instructions
on safe landing procedures (id. at p. 1302). As our colleagues in
Division Two of the Fourth District explained, “Safety is
important, but so is the freedom to engage in recreation and
challenge one’s limits. The primary assumption of risk doctrine
balances these competing concerns by absolving operators of
activities with inherent risks from an obligation to protect their
customers from those risks. [¶] What the primary assumption of
risk doctrine does not do, however, is absolve operators of any
obligation to protect the safety of their customers. [Citation.] As
a general rule, where an operator can take a measure that would
increase safety and minimize the risk of the activity without also
altering the nature of the activity, the operator is required to do
so.” (Id. at pp. 1299-1300; see id. at p. 1301 [“the primary
assumption of risk doctrine has never relieved an operator of its
duty to take reasonable steps to minimize inherent risks without
altering the nature of the activity”].)
      3. Summer’s Proposed Second Amended Complaint States
         Causes of Action for Negligence and Premises Liability
         Against US Baseball
         a. Summer has adequately alleged duty and breach
       Summer alleged in her first amended complaint and
proposed to allege in a second amended complaint that Blair
Field had inadequate protective netting in the perceived zone of
danger behind home plate (first amended complaint) or for field-
level seating along the first- and third-base lines between home
plate and the dugouts (proposed second amended complaint).
She also proposed to allege the danger to spectators of being hit
by hard-hit foul balls in the high-risk, unscreened area at Blair




                                13
Field had been increased by addition of box seats on the field
level along the first- and third-base lines that were closer to the
field of play than the distance recommended for college baseball
stadiums by the National Collegiate Athletic Association (NCAA)
and creation of unnecessary distractions at the ball park
including large, colorful advertising on the outfield wall and
Wi-Fi ready access to encourage spectators to use their mobile
devices during ballgames.
       The trial court ruled these allegations were insufficient to
state a cause of action for either negligence or premises liability
because being hit by a foul ball is an inherent risk to spectators
                          9
attending baseball games. The court reasoned, “The lack of
netting is not an increase of inherent risks. Placing such netting
might decrease the inherent risks of being hit by a foul ball, but
that is not the inquiry.”



9
       “The elements of a negligence claim and a premises
liability claim are the same: a legal duty of care, breach of that
duty, and proximate cause resulting in injury. [Citations.]
Premises liability ‘“is grounded in the possession of the premises
and the attendant right to control and manage the premises”’;
accordingly, ‘“mere possession with its attendant right to control
conditions on the premises is a sufficient basis for the imposition
of an affirmative duty to act.”’ [Citation.] But the duty arising
from possession and control of property is adherence to the same
standard of care that applies in negligence cases.” (Kesner v.
Superior Court (2016) 1 Cal.5th 1132, 1158; see Alcaraz v. Vece
(1997) 14 Cal.4th 1149, 1156 [“‘[t]he proper test to be applied to
the liability of the possessor of land . . . is whether in the
management of his property he has acted as a reasonable man in
view of the probability of injury to others’”].)



                                14
       On appeal US Baseball defends the ruling sustaining the
demurrer without leave to amend with a similar argument,
insisting in the opening paragraph of its brief, “[T]here is no legal
duty to eliminate the inherent risk of being hit by a ball while
watching a baseball game or to otherwise protect a spectator from
being hit by a ball.” US Baseball reiterates this position later in
its brief, arguing, “The Supreme Court has determined, as a
matter of policy, that in the context of risks inherent in a sporting
event, the duty to be imposed on sponsors is limited to a duty not
to increase those risks. Primary assumption of risk precludes
any other duty relative to the inherent risks of the sport.”
       These cramped descriptions by the trial court and
US Baseball fundamentally misperceive the nature of
US Baseball’s duty to fans attending the August 17, 2014
                     10
national team trials. To be sure, foul balls are part of baseball.
But as the entity responsible for operating Blair Field on that
     11
date, US Baseball had a duty not only to use due care not to

10
      That a stadium operator has no duty of any sort to protect
spectators from foul balls, as argued by US Baseball, has never
been the law in California. The Supreme Court in Quinn v.
Recreation Park Assn., supra, 3 Cal.2d 725, more than 50 years
before Knight, held stadium management had a duty of ordinary
care that was satisfied by providing screened seats for as many
spectators as may be reasonably expected to ask for those seats
on any ordinary occasion. (Id. at p. 729.)
11
      In her first amended complaint Summer alleged
US Baseball, as the sponsor of the baseball game and lessee of
Blair Field, was responsible for maintaining spectator safety at
the stadium on the day she was injured. In her proposed second
amended complaint Summer alleges US Baseball not only
sponsored and organized the game at which she was injured but


                                 15
increase the risks to spectators inherent in the game but also to
take reasonable measures that would increase safety and
minimize those risks without altering the nature of the game.
(See Kahn, supra, 31 Cal.4th at p. 1004 [“[f]or the stadium owner,
reasonable steps may minimize the risk without altering the
nature of the sport”]; Knight, supra, 3 Cal.4th at p. 317 [same];
Hass v. RhodyCo Productions, supra, 26 Cal.App.5th at pp. 38,
40; Grotheer v. Escape Adventures, Inc., supra, 14 Cal.App.5th at
pp. 1299-1301.)
       Installing protective netting down the first- and third-base
lines at least to the dugouts would certainly increase safety and
minimize risk to fans sitting in those areas. Would it alter the
nature of the game? The court in Lowe v. California League of
Prof. Baseball, supra, 56 Cal.App.4th 112, using language quoted
by the trial court in its ruling, surmised it would: According to
the court, if foul balls hit into the stands were eliminated, “it
would be impossible to play the game.” (Id. at p. 123.) Other
courts in past generations have agreed. (See, e.g., Neinstein v.
Los Angeles Dodgers, Inc., supra, 185 Cal.App.3d at p. 181
[protective screens would interfere with the players’ ability to
reach into the spectator area to catch foul balls, “changing the
very nature of the game itself”].) As discussed, however,

also controlled Blair Field on the day of the game. Whether she
can provide evidence to support those allegations is not now at
issue. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998)
19 Cal.4th 26, 47 [“‘[I]t is not the ordinary function of a demurrer
to test the truth of the plaintiff’s allegations or the accuracy with
which [s]he describes the defendant’s conduct . . . . ‘[T]he
question of plaintiff’s ability to prove these allegations, or the
possible difficulty in making such proof does not concern the
reviewing court.”’”].)



                                 16
Commissioner Rob Manfred, the 30 major league baseball teams
and many minor league teams disagree, all of them planning to
expand protective netting in their stadiums substantially beyond
the end of the dugouts for the upcoming 2020 season. (See
generally Grow & Flagel, The Faulty Law and Economics of the
“Baseball Rule” (2018) 60 Wm. & Mary L.Rev. 59, 85-98
[discussing developments during the past 25 years that have
increased the risk of being injured by foul balls at professional
baseball games, including changes in stadium construction that
bring spectators closer to the playing field, elevated velocity of
pitched balls and increased distractions such as free Wi-Fi].)
Allegations incorporating the views of experienced baseball
professionals that extending protective netting along the first-
and third-base lines will minimize the inherent risk of being
injured by a foul ball without fundamentally changing the game
adequately identify an enforceable duty, at least for pleading
purposes. (Cf. Nalwa, supra, 55 Cal.4th at p. 1163.) Accordingly,
Summer should be permitted to file an amended pleading
alleging US Baseball had a duty to ensure there was adequate
protective netting at Blair Field on August 17, 2014 and acted
unreasonably, breaching that duty of care, by failing to provide
netting on the field level along the first- and third-base lines at
least from home plate to the dugouts. Whether the evidence will
support those allegations, which will require an evaluation of the
extent of the stadium’s existing netting, the proximity of
unprotected seats to the playing field and the history of previous
injuries in the seating area at issue, is not now before us. (See
Mathews v. Becerra, supra, 8 Cal.5th at p. 762 [“surviving
demurrer is no assurance of success on the merits once evidence




                                17
is developed and considered. But we see no basis to prejudge
what the evidence will show”].)
         b. Any issue of “open and obvious danger” cannot be
            resolved on demurrer
       As an alternate basis for holding US Baseball liable for her
injuries, Summer alleged US Baseball was aware of the
inadequate nature of the netting at Blair Field, yet failed to warn
her of the danger of being struck by a foul ball where she was
seated. In its demurrer US Baseball contended that danger was
so obvious it had no duty to warn Summer of the risk. (See, e.g.,
Jacobs v. Coldwell Banker Residential Brokerage Co. (2017)
14 Cal.App.5th 438, 447 [“‘Generally, if a danger is so obvious
that a person could reasonably be expected to see it, the condition
itself serves as a warning, and the landowner is under no further
duty to remedy or warn of the condition.’ [Citation.] In that
situation, owners and possessors of land are entitled to assume
others will ‘perceive the obvious’ and take action to avoid the
dangerous condition”]; see also Kinsman v. Unocal Corp. (2005)
37 Cal.4th 659, 673.)
       In response to US Baseball’s open-and-obvious defense,
Summer argues (and, presumably, can allege in an amended
pleading) (1) the presence of some protective netting misled her
(as well as other reasonably prudent spectators) into believing
the unprotected seats were outside the perceived zone of danger
with a high risk of injury from foul balls (in effect, an argument
that the nature of the risk of injury had been concealed); and
(2) because the protective netting behind home plate was
unusually narrow and the spectator seats atypically close to the
field of play, the dangers in the unprotected seating at Blair Field
“are noticeable only if the spectator has expertise in



                                18
mathematics, physics, human factors, or stadium design.” In
light of these proposed allegations, whether the danger of injury
from foul balls in unprotected seating was sufficiently obvious to
relieve US Baseball of its duty to warn Summer of its existence
is, at most, a question of fact that cannot be resolved on
          12
demurrer. (See Chance v. Lawry’s, Inc. (1962) 58 Cal.2d 368,
374 [whether the danger created by an open planter box in a
narrow foyer of a busy restaurant was sufficiently obvious to
eliminate the owner’s duty to warn “was peculiarly a question of
fact to be determined by the jury”]; Henderson v. McGill (1963)
222 Cal.App.2d 256, 260 [“‘[i]t is ordinarily a question of fact
whether in particular circumstances the duty of care owed to
invitees was complied with, . . . whether the particular danger
was obvious’”]; see also Donohue v. San Francisco Housing
Authority (1993) 16 Cal.App.4th 658, 665 [“[T]he ‘obvious danger’
exception to a landowner’s ordinary duty of care is in reality a
recharacterization of the former assumption of the risk doctrine,
i.e., where the condition is so apparent that the plaintiff must
have realized the danger involved, he assumes the risk of injury
even if the defendant was negligent. [Citation.] . . . [T]his type of



12
      As the court of appeal noted in Morgan v. Fuji Country
USA, Inc., supra, 34 Cal.App.4th at page 135, footnote 3, in
response to the open-and-obvious argument of the golf course
owner and operator, “Under Knight, the obviousness of a risk
may, however, support a duty to provide protection, e.g., as in the
case of a baseball stadium where the stadium operator may be
obligated to provide protection for spectators in an area where
the danger and risk of being hit by a thrown bat or errant ball is
particularly obvious.”



                                 19
assumption of the risk has now been merged into comparative
                 13
negligence”].)
                         DISPOSITION
      The judgment and postjudgment order denying Summer’s
motion to tax costs and awarding costs to US Baseball are
reversed. The matter is remanded with directions to the trial
court to vacate its order sustaining US Baseball’s demurrer
without leave to amend and to enter a new order sustaining the
demurrer and granting Summer leave to file a second amended
complaint. Summer is to recover her costs on appeal.




                                    PERLUSS, P. J.

We concur:




             SEGAL, J.              FEUER, J.




13
      Our reversal of the judgment in favor of US Baseball
necessarily compels reversal of the award of costs to it as the
prevailing party pursuant to Code of Civil Procedure
section 1032, the subject of Summer’s appeal in B285029.
(Ducoing Management, Inc. v. Superior Court (2015)
234 Cal.App.4th 306, 314; Allen v. Smith (2002) 94 Cal.App.4th
1270, 1284.)



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