ATTORNEYS FOR APPELLANT                            ATTORNEYS FOR APPELLEE
James R. Branit                                    Walter J. Alvarez
Mitchell H. Frazen                                 Duke T. Escue
Nicholas J. Parolisi, Jr.                          David A. Wilson
Chicago, Illinois                                  Crown Point, Indiana
                                                                            Jun 27 2014, 9:18 am
ATTORNEYS FOR AMICUS CURIAE                        Robert F. Peters
INDIANAPOLIS INDIANS                               Merrillville, Indiana
Andrew B. Janutolo
R.D. Zink
Indianapolis, Indiana



                                          In the
                        Indiana Supreme Court
                                   No. 45S03-1308-CT-531

SOUTH SHORE BASEBALL, LLC D/B/A GARY
SOUTH SHORE RAILCATS AND NORTHWEST
SPORTS VENTURE, LLC,
                                                            Appellants (Defendants below),

                                              v.

JUANITA DEJESUS,
                                                            Appellee (Plaintiff below).


                  Appeal from the Lake Superior Court, No. 45D02-0911-CT-251
                             The Honorable Calvin Hawkins, Judge


      On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-1205-CT-222



                                        June 27, 2014

Massa, Justice.
       “It’s hard not to be romantic about baseball.” 1 But are stadiums and franchises, by virtue
of baseball’s status as our national pastime, governed not by our standard principles of premises
liability but rather entitled to a special limited-duty rule? We think not. Nevertheless, we find
the defendant in this case is entitled to summary judgment, so we reverse the trial court.




                                  Facts and Procedural History


       On May 23, 2009, Juanita DeJesus, a fan of the minor-league baseball team South Shore
RailCats, attended the team’s opening day game at their home stadium, the U.S. Steelyard in
Gary, Indiana. DeJesus had obtained two tickets from her friend Margie Comacho. On the back
of the ticket, the following text was printed:

               This ticket is a revocable license. Admission may be refused or
               ticket holder rejected at the sole discretion of South Shore
               Baseball, LLC (the Gary South Shore RailCats). The Gary South
               Shore RailCats may refuse admission to, or eject, any ticket holder
               without refund if the holder fails to comply with these terms, is
               deemed to be acting in a disorderly manner, or does otherwise not
               comply with Stadium, game day and Gary South Shore RailCats
               policies. The ticket holder assumes all risks incident to the game
               or related events to which this ticket admits holder; including risk
               of loss, stolen or damaged property, and personal injury.

App. at 76, Tr. at 4–5. There was also a provision stating “No refunds or exchanges. This ticket
may not be transferred or resold.” App. at 138–41, 165. Finally, there was a warning that
cautioned spectators about “the danger of being injured by . . . thrown or batted balls.” App. at
76, 165.




1
  “Moneyball” (Columbia Pictures 2011); see also Flood v. Kuhn, 407 U.S. 258, 286 (1972) (Douglas, J.,
dissenting) (claiming the majority’s “romantic view” of the sport was responsible for what he viewed as
the incorrect decision to exempt professional baseball’s reserve system from federal antitrust laws).



                                                  2
        DeJesus and her fiancé James Kerr arrived at the stadium, entered through the home plate
gate, and walked down to their seats in a lower section along the first base line. The rest of their
party—Comacho and her niece—had already arrived. DeJesus walked down the aisle between
Sections 110 and 111 to get to her seat. At the end of that aisle, a sign read “Please Be Aware Of
Objects Leaving The Playing Field.” App. at 77, 79, 81.


        DeJesus and her party sat in section 111, which falls just outside of the protective netting
behind home plate. Section 110 is behind the netting, but the netting ends in the aisle between
Section 110 and Section 111, and there is no netting between the fans seated in Section 111 and
the playing field. Before the game began, DeJesus heard an announcer warn the fans to watch
out for objects leaving the field of play.


        Just after the start of play, the second batter hit a pop-up foul ball. DeJesus saw the batter
make contact with the ball, and as she looked up to see where it had gone, it hit her in the face.
As a result, she suffered serious injuries, including several fractured facial bones and permanent
blindness in her left eye.


        DeJesus sued South Shore Baseball and the Steelyard, 2 alleging she “was sitting in an
area that was immediately outside of the area that was protected by the screening and, shortly
after the game began, was struck in the face with a foul ball that caused her to incur serious
permanent personal injuries” and the defendants “were negligent in failing to make [the]
premises reasonably safe for [her], a business invitee.” App. at 38. She claimed the defendants
breached their duty to her because they failed to extend the protective netting far enough along
the foul ball line.




2
  As the Steelyard is merely the name of the ballpark and not a separate entity, parties subsequently
stipulated to its dismissal from the case.



                                                  3
        The defendants moved for summary judgment, arguing DeJesus was a mere licensee and
therefore South Shore fulfilled its duty to warn her of known latent dangers. 3 Before responding
to the defendants’ motion, DeJesus amended her complaint 4 to add an allegation that both
defendants were negligent in the design, construction, and maintenance of the ballpark by failing
to provide sufficient protective screening. When she did file her response, DeJesus contended
(1) she was not a licensee but rather an invitee, and (2) the defendants “breached the standard of
care for a public baseball stadium because they failed to extend the netting continuously to both
first and third base.” App. at 91. In support of her second argument, DeJesus designated the
affidavit of Dr. Alan R. Caskey, an expert in the design of sport and recreation facilities. Dr.
Caskey opined “there should have been fence netting continuously from first base to third to
protect fans . . . from . . . foul balls.” App. at 170–71.


        Less than one month after DeJesus filed these responsive materials, we decided Pfenning
v. Lineman, 947 N.E.2d 392 (Ind. 2011). In Pfenning, a young woman was driving a beverage
cart during a golf outing when she was hit by an errant golf ball and sustained injuries to her
mouth, jaw, and teeth. Id. at 397. She sued the golf course on a theory of premises liability, and
the trial court granted the defendant’s motion for summary judgment. Id. at 396. The plaintiff
appealed, and we affirmed the trial court: “We find that the undisputed designated evidence
conclusively establishes that crucial aspects of two of the elements of premises liability are not
satisfied. There is no showing that (a) the Elks should have reasonably expected that its invitees




3
  The defendants initially argued DeJesus voluntarily assumed the risk of injury when she attended the
game and sat in an unscreened seat, but they abandoned that claim during the hearing on their motion.
They also contended DeJesus hadn’t submitted any evidence or expert testimony to establish breach of
duty, but acknowledged at the hearing that DeJesus had hired an expert, who opined all baseball spectator
seating should be protected by netting.
4
  In her amended complaint, DeJesus purported to add Northwest Sports Ventures LLC as a defendant,
but as that was the former name of South Shore Baseball, the trial court treated the two entities as one and
the same. DeJesus also added the City of Gary as a defendant, but the City moved to dismiss the claims
against it, and the trial court granted that motion. DeJesus does not here appeal that dismissal.



                                                     4
would fail to discover or realize the danger of wayward golf drives, and (b) the risk of being
struck by an errant golf ball involved an unreasonable risk of harm.” Id. at 407.


       On March 16, 2012—after both parties had a chance to address Pfenning in supplemental
briefing—the trial court held a hearing on the defendants’ motion for summary judgment, to
which they had added the argument that DeJesus’s claim was precluded by our holding in
Pfenning. In a summary order, the trial court denied the defendants’ motion, but at defendants’
request, it certified that order for discretionary interlocutory appeal, and our Court of Appeals
accepted jurisdiction.


       In a published opinion, a unanimous panel concluded there was no genuine of issue of
material fact as to either DeJesus’s premises liability claim or as to her negligence claim:

               With respect to DeJesus’s claim that [defendants] were liable for
               her injuries under the theory of premises liability, we apply the
               Indiana Supreme Court’s holding in Pfenning to the instant matter
               and conclude that the undisputed designated evidence conclusively
               establishes that crucial aspects of two of the elements of premises
               liability are not satisfied. There is no showing that (a) the
               Appellants should have reasonably expected that their invitees
               would fail to discover or realize the danger of foul balls entering
               the stands, and (b) the risk of being struck by a foul ball involved
               an unreasonable risk of harm. With respect to DeJesus’s
               negligence claim, we adopt the majority rule that the operator of a
               baseball stadium does not have a duty to place protective screening
               continuously from first to third base, but rather only in the most
               dangerous area, i.e., the area directly behind home plate. For these
               reasons, we conclude that DeJesus cannot prevail on her claims
               against the Appellants.

S. Shore Baseball, LLC v. DeJesus, 982 N.E.2d 1076, 1085 (Ind. Ct. App. 2013) (internal
citation omitted). Accordingly, the panel reversed the trial court and remanded the case with
instructions to grant South Shore’s motion for summary judgment. Id.


       We granted transfer. S. Shore Baseball, LLC v. DeJesus, 992 N.E.2d 207 (Ind. 2013)
(table); Ind. Appellate Rule 58(A).


                                                 5
                                       Standard of Review


         When we review a trial court’s ruling on a motion for summary judgment, we stand in the
trial court’s cleats. Pfenning, 947 N.E.2d at 396. The moving party is entitled to summary
judgment if “the designated evidentiary matter shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial
Rule 56(C). Upon such a showing, the burden shifts to the non-moving party to point out
specific facts that create a disputed issue for trial. Pfenning, 947 N.E.2d at 397. Like the trial
court, we view all evidence and resolve all doubts in the fashion most favorable to the non-
moving party. Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 461 (Ind. 2002).




                     The Defendants Are Entitled to Summary Judgment


         South Shore argues the trial court should have granted its motion for summary judgment.
We agree.


         A. We Decline to Adopt a Special Limited-Duty Rule for Baseball Stadiums and
            Franchises.


         As a threshold matter, amicus curiae Indianapolis Indians urges us to dispose of
DeJesus’s premises liability and negligence claims in one fell swoop by adopting the so-called
Baseball Rule. Although we appreciate a well-turned double play, we will take this particular
pitch.


         The Baseball Rule provides that a ballpark operator that “provides screening behind
home plate sufficient to meet ordinary demand for protected seating has fulfilled its duty with
respect to screening and cannot be subjected to liability for injuries resulting to a spectator by an
object leaving the playing field.” Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 225 (Mich.
Ct. App. 2001). This special limited duty was first applied in Crane v. Kansas City Baseball &



                                                 6
Exhibition Co., 153 S.W. 1076, 1077 (Mo. Ct. App. 1913), in which the Missouri Court of
Appeals stated a ballpark operator could satisfy his duty of reasonable care to spectators by
“provid[ing] screened seats in the grand stand, and g[iving] plaintiff the opportunity of
occupying one of those seats.” Id. at 1077; see also Edling v. Kansas City Baseball & Exhibition
Co., 168 S.W. 908, 910 (Mo. Ct. App. 1914) (adding that the duty to provide some screened
seats includes an obligation “to exercise reasonable care to keep the screen free from defects”).
It has been judicially adopted in many jurisdictions across the country. 5




5
  See, e.g., Quinn v. Recreation Park Ass’n, 46 P.2d 144, 146 (Cal. 1935) (“The duty imposed by law is
performed when screened seats are provided for as many as may be reasonably expected to call for them
on any ordinary occasion; and if . . . a spectator chooses to occupy an unscreened seat, or . . . is unable to
secure a screened seat and consequently occupies one that is not protected, he assumes the risk of being
struck by thrown or batted balls; and if injured thereby is precluded from recovering damages therefor.”
(internal citations omitted)); Arnold v. City of Cedar Rapids, 443 N.W.2d 332, 333 (Iowa 1989) (“the
owner or operator of a ballpark fully discharges any obligation to protect spectators from thrown or hit
balls by providing seating in a fully protected area. Where a spectator rejects the protected seating and
opts for seating that is not, or is less, protected the owner or operator is not liable.”); Lorino v. New
Orleans Baseball & Amusement Co., 133 So. 408, 409 (La. Ct. App. 1931) (“‘the duty of defendants
towards their patrons included that of providing seats protected by screening from wildly thrown or foul
balls, for the use of patrons who desired such protection. Defendants fully performed that duty when they
provided screened seats in the grand stand, and gave plaintiff the opportunity of occupying one of those
seats.’” (quoting Crane, 153 S. W. at 1077)); Benejam, 635 N.W.2d at 222 (“courts generally have
adopted the limited duty doctrine that prevents liability if there are a sufficient number of protected seats
behind home plate to meet the ordinary demand for that kind of seating.”); Swagger v. City of Crystal,
379 N.W.2d 183, 186 (Minn. Ct. App. 1985) (“there was no duty to appellants to do other than provide
some protected seating.”); Erickson v. Lexington Baseball Club, 65 S.E.2d 140, 141 (N.C. 1951) (“It is
enough to provide screened seats, in the areas back of home plate where the danger of sharp foul tips is
greatest, in sufficient number to accommodate as many patrons as may reasonably be expected to call for
them on ordinary occasions.”); Akins v. Glens Falls City Sch. Dist., 424 N.E.2d 531, 533 (N.Y. 1981)
(“We hold that, in the exercise of reasonable care, the proprietor of a ball park need only provide
screening for the area of the field behind home plate where the danger of being struck by a ball is the
greatest.”); Cincinnati Baseball Club Co. v. Eno, 147 N.E. 86, 87 (Ohio 1925) (“management performs its
duty toward the spectators when it provides screened seats in the grand stand and gives spectators the
opportunity of occupying them.”); Hull v. Oklahoma City Baseball Co., 163 P.2d 982, 983 (Okla. 1945)
(agreeing with defendants’ contention that their “only duty . . . 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.”); Williams v. Houston Baseball Ass’n, 154 S.W.2d 874, 875 (Tex. Civ. App. 1941) (“The duty
imposed by law is performed when screened seats are provided for as many as may be reasonably
expected to call for them on any ordinary occasion.” (quoting Ratcliff v. San Diego Base Ball Club, 81


                                                      7
          South Shore Baseball also suggests our Court of Appeals essentially adopted the Baseball
Rule seventy years ago when it decided Emhardt v. Perry Stadium, Inc., 113 Ind. App. 197, 46
N.E.2d 704 (1943). But Emhardt, in which the plaintiff was hit by a foul ball after another
spectator caught it and threw it back onto the field, turned upon the doctrines of assumed and
incurred risk.    The Emhardt court said “one who attends a baseball game where adequate
screened protection has been provided, and chooses to occupy an unscreened portion with
knowledge of the ordinary hazards of the game incident to such location . . . ‘incurs’ or
‘assumes’ such ordinary known hazards.” Id. at 201, 46 N.E.2d at 706. After Emhardt was
decided, however, those doctrines were superseded by the Indiana Comparative Fault Act. Heck
v. Robey, 659 N.E.2d 498, 504–05 (Ind. 1995) abrogated on other grounds by Control
Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002); Ind. Code ch. 34-51-2. Thus, even if
Emhardt constituted a judicial adoption of the Baseball Rule, that adoption was based upon
obsolete legal principles, and we do not find it instructive here.


          Baseball undoubtedly occupies a special place in American life and culture; we have said
before:

                 That baseball has come to be the one great American outdoor
                 game; that it is played during the summer season throughout the
                 land by boy and youth and man, beginner, amateur, and
                 professional, in country village, town, and city; that it is played out
                 of doors in seasonable weather; that it engages the mind alike of
                 the participant and the spectator in an entertaining way; that it
                 trains the body to vigor and activity and to a degree the mind to
                 alertness; that the playing of a game requires but a fraction of a
                 half day; . . . that those who witness it find in it for the time a relief




P.2d 625, 626 (Cal. Ct. App. 1938))); Lawson By & Through Lawson v. Salt Lake Trappers, Inc., 901
P.2d 1013, 1015 (Utah 1995) (holding the defendant baseball team “had a duty to screen the area behind
home plate and to provide screened seats to as many spectators as would normally request such seats on
an ordinary occasion.”); Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d 1172, 1175–76 (Nev. 2008)
(“Once a stadium owner or operator complies with the rule’s requirements by providing sufficient
protected seating, the owner or operator has satisfied the legal duty of protection owed to its patrons.”).



                                                     8
                mentally and physically from the stress of the intense life we as a
                people lead - are facts known of all men, and of which the courts
                and legislatures cannot be wholly ignorant.

Carr v. State, 175 Ind. 241, 263, 93 N.E. 1071, 1078–79 (1911). Nevertheless, we are not
convinced that any sport, even our national pastime, merits its own special rule of liability. We
have said before that “it is neither necessary nor appropriate for sports events to be distinguished
and given such special treatment.” Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 555
(Ind. 1987). But our own views on the wisdom of such a rule are irrelevant here; under our
system of limited government, the legislative branch is entrusted with decisions of public policy.

                Judges and Justices are servants of the law, not the other way
                around. Judges are like umpires. Umpires don’t make the rules,
                they apply them. The role of an umpire and a judge is critical.
                They make sure everybody plays by the rules, but it is a limited
                role. Nobody ever went to a ball game to see the umpire.

Charles Fried, Balls and Strikes, 61 Emory L.J. 641, 642 (2012) (quoting Confirmation Hearing
on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing
Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr.,
J., D.C. Circuit)). Should the General Assembly wish to adopt the Baseball Rule in statutory
form, of course, it is free to do so; indeed, four other state legislatures have done just that. See
Ariz. Rev. Stat. Ann. § 12-554 (1999); Colo. Rev. Stat. Ann. § 13-21-120 (1994); N.J. Stat. Ann.
§ 2A: 53A-43 to 2A:53A-48 (2006); 745 Ill. Comp. Stat. Ann. 38/10 (1992). But we will not
adopt it by judicial fiat. Accord Rountree v. Boise Baseball, LLC, 154 Idaho 167, 173, 296 P.3d
373, 379 (2013) (“Declining to adopt the Baseball Rule leaves policy formulation to the
deliberative body that is better positioned to consider the pros and cons of the issue.”). 6




6
  DeJesus argues South Shore had a duty, as a matter of law, to provide protective screening continuously
from first to third base. But she cites no authority—aside from Dr. Caskey’s affidavit—to support this
notion. Indeed, this is the same argument the Crane court considered and rejected back in 1913. Crane,
153 S.W. at 1077–78; see also Wex S. Malone, “Contributory Negligence and the Landowner Cases,” 29


                                                   9
        B. There Is No Genuine Issue of Fact Regarding the Second Element of DeJesus’s
           Premises Liability Claim.


        South Shore argues the trial court erred by denying its motion for summary judgment as
to DeJesus’s premises liability claim. That claim is governed by the well-known rule:


                A possessor of land is subject to liability for physical harm caused
                to his invitees by a condition on the land if, but only if, he

                (a) knows or by the exercise of reasonable care would discover the
                    condition, and should realize that it involves an unreasonable
                    risk of harm to such invitees, and

                (b) should expect that they will not discover or realize the danger,
                    or will fail to protect themselves against it, and

                (c) fails to exercise reasonable care to protect them against the
                    danger.

Pfenning, 947 N.E.2d at 406 (citing Restatement (Second) of Torts § 343 (1965)). South Shore
argues there is no genuine issue of fact as to the second of these. It cites Pfenning, in which we
said: “We find no genuine issue of fact to contravene the objectively reasonable expectation by
the Elks that persons present on its golf course would realize the risk of being struck by an errant
golf ball and take appropriate precautions.” Id.


        And just so here. Both parties agree that South Shore notified DeJesus of the danger of
foul balls by printing a warning on her ticket, posting a sign in the aisle near her seat, and




Minn. L. Rev. 61, 77 (1945) (“A stadium protected in all its areas would prove financially disastrous to
management . . . and would outrage many devotees of baseball who like to watch the game without
obstruction.”). Therefore, just as we declined South Shore Baseball’s invitation to adopt a special
limited-duty rule for baseball, so too we decline DeJesus’s invitation to adopt this special heightened-duty
rule.



                                                    10
making an announcement over the loudspeaker before the beginning of the game. Based upon
these efforts, South Shore would have had no reason to believe DeJesus would not realize the
danger or that she would not protect herself against it. Thus, DeJesus cannot establish a genuine
issue of fact as to the second element of her premises liability claim, and the trial court should
have granted South Shore’s motion for summary judgment on that claim. And as we have
resolved this issue on that basis, we need not address South Shore’s alternative argument
regarding the first element of DeJesus’s premises liability claim.


       C. There Is No Genuine Issue of Fact Regarding DeJesus’s Negligence Claim.


       Finally, DeJesus brought a negligence claim against South Shore, arguing that by erecting
some protective netting in the stadium, South Shore assumed a duty of care to protect her from
foul balls. We have said before that

               a duty may be imposed upon one who by affirmative conduct . . .
               assumes to act, even gratuitously, for another to exercise care and
               skill in what he has undertaken. It is apparent that the actor must
               specifically undertake to perform the task he is charged with
               having performed negligently, for without actual assumption of the
               undertaking there can be no correlative legal duty to perform the
               undertaking carefully.

Butler v. City of Peru, 733 N.E.2d 912, 917 (Ind. 2000) (quoting NIPSCO v. E. Chicago Sanitary
Dist., 590 N.E.2d 1067, 1074 (Ind. Ct. App. 1992)). And we have adopted the rule laid down in
the Restatement (Third) of Torts: Physical and Emotional Harm § 42 (2012), which states:

               An actor who undertakes to render services to another and who
               knows or should know that the services will reduce the risk of
               physical harm to the other has a duty of reasonable care to the
               other in conducting the undertaking if:

               (a) the failure to exercise such care increases the risk of harm
               beyond that which existed without the undertaking, or

               (b) the person to whom the services are rendered or another relies
               on the actor’s exercising reasonable care in the undertaking.



                                                11
Yost v. Wabash Coll., 3 N.E.3d 509, 515 (Ind. 2014).


       Assuming without deciding that South Shore undertook such a duty and put DeJesus at
greater risk of harm by breaching it, DeJesus’s claim nonetheless fails as a matter of law because
she does not allege an increased risk of harm and cannot establish reliance. In her deposition,
DeJesus testified she had seen foul balls enter the stands at RailCats games before. She even
admitted she knew, when she was sitting in her seat, “there could be a chance that the ball could
come that way.” App. at 73. This undisputed evidence shows DeJesus was not relying on the
netting to protect her from the danger of foul balls. Therefore, South Shore was entitled to
summary judgment on this issue as well.




                                          Conclusion


       We therefore reverse the trial court and remand this case for further proceedings
consistent with our opinion today.


Dickson, C.J., and Rucker, David, and Rush, JJ., concur.




                                               12
