Baseball fans go to bat for safety, strike out on standing.

We know it’s still hockey season but an interesting decision from the Ninth Circuit recently caught our eye involving the national pastime.

Hoping to catch a foul ball in the stands has long been a fan-favorite part of America’s pastime. But in an age of increased pitching and hitting speeds and constant distractions—smart phones, seatback displays, and jumbotrons, to name a few—does the risk of injury from the once-coveted trajectories outweigh the excitement? California plaintiffs Gail Payne and Stephanie Smith—long-time fans of the Oakland A’s and the Los Angeles Dodgers, respectively—thought so and filed suit to force the Office of the Commissioner of Baseball d/b/a Major League Baseball (the “MLB”) to put up more safety netting, spanning “from foul pole to foul pole,” at every MLB stadium.A panel of judges in the Ninth Circuit agreed with a district court judge’s decision to throw out the plaintiffs’ class action complaint for lack of standing, reasoning that neither plaintiff demonstrated the “certainly impending” or “substantial risk” or future injury by a foul ball or broken bat  necessary to maintain a federal action. Payne v. Office of the Commissioner of Baseball, No. 16-17131, 2017 WL 6154069, at *1 (9th Cir. Dec. 8, 2017).

The original complaint, filed by three named plaintiffs, asserted claims for negligence, fraudulent concealment, and violations of California’s Unfair Competition Law and Civil Code, and sought to force all MLB teams nationwide to put up comprehensive safety netting. See Payne v. Office of the Commissioner of Baseball, 2016 WL 1394369, at * (N.D. Cal. 2016). “[R]eplete with graphic descriptions and photographs of seriously injured participants or spectators, who were hit with balls or splintered bats, over the prior decades,” id. at *2, the complaint told of the plaintiffs’ close encounters with spectator perils. Payne claimed “she is constantly ducking and weaving to avoid getting hit” when she attends Oakland A’s games; Smith alleged she had been hit in the stomach “by a line drive foul ball” at a 2015 Dodgers game; and a third plaintiff, Robert Gorman, claimed that he had been hit in the head by a foul ball at a minor league game fifteen years prior. Id. at *2-3.

In an April 2016 decision on the MLB’s motion to dismiss, Judge Yvonne Gonzales Rogers of the United States District Court for the Northern District of California dismissed the plaintiffs’ claims as to all MLB teams outside of California for lack of personal jurisdiction. Id. at *6. As to the California teams, she ordered the MLB—who argued that the plaintiffs lacked Article III standing for lack of injury in fact—to provide the plaintiffs with limited discovery going to the issue of “the probability that a given individual, seated in plaintiffs’ specific sections at the two California stadiums in question, will be hit by a stray ball or bat in the course of a given game or season.” Id. at *7.

Subsequently, in a November 2016 decision (by which time Gorman had been dropped as a named plaintiff), Judge Gonzales Rogers cited data submitted by the defendants showing a foul ball injury rate of only 0.0027% at the Oakland Coliseum during the 2014-partial 2016 seasons, and an even lower rate for broken bat injuries. Payne v. Office of the Commissioner of Baseball, No. 15-CV-03229-YGR, 2016 WL 6778673, at *1 (N.D. Cal. 2016). Payne, who planned to attend future Oakland A’s games, offered no statistical evidence in rebuttal, arguing only that she fears for her safety when she attends games and would enjoy having nets placed in front of her seating section. Id. at *2. The judge also cited the defendants’ data showing a 0.018% probability of being hit in Smith’s former seating area at Dodgers Stadium. Smith countered that nearly two individuals per game were struck and hurt by foul balls at the stadium during the 2015 season. Id.

Judge Gonzales Rogers acknowledged the severity of spectator injuries in the modern era, even chastening the MLB for not highlighting the risk to parents of children. Id. at *3 n.3. But, citing the U.S. Supreme Court’s repeated instruction that “[a]llegations of possible future injury’ are not sufficient” for Article III standing, id. at *5 (quoting Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (emphasis and alteration in original)), she explained that such low statistical chances of injury do not constitute injury in fact, nor does the plaintiffs’ apprehension of future harm or diminishment of enjoyment—especially because these concerns are easily addressed (i.e., the plaintiffs are free to sit in an already-netted section the next time they attend a ball game). Id. at *4-5.

Adding to the judge’s finding was the fact that Payne offered no specific dates on which she planned to attend future Oakland A’s games and Smith’s admission that she planned not to attend future Dodgers games. Id. at *5. Not falling for statistical artifice, the judge also pointed out that even if Smith does decide to attend games, the two-injury-per-game figure Smith cited did “not concern the risk of injury that Smith herself faces while sitting in Field Box 35, but rather the overall risk of an average attendee.” Id. (emphasis in original).

The Ninth Circuit’s affirming opinion summarily rejected Smith’s and Payne’s theories of injury, explaining that a 0.0027% chance of being hit is not substantial, that general anxiety about being injured is too hypothetical to be “certainly impending,” and that “[a] person does not suffer ‘an invasion of a legally protected interest’ solely because the owner of a facility open to the public has failed to implement a particular safety measure.” Payne, 2017 WL 6154069, at *1 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).

We think risk-averse lawyers familiar with this case will be sure to purchase tickets in netted sections next season. But are there any takeaways for legal practice? Sure. Payne illustrates the important role statistics can play in Article III standing inquiries; it would behoove any lawyer to assess early on whether the stats favor his or her client. Seeking (or agreeing to) limited jurisdictional discovery of the sort Judge Gonzales Rogers ordered can be a great strategy if the stats are on your side. More generally, Payne suggests that in the post-Spokeo world, see generally Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), federal judges are inclined to pay close attention to questions of Article III injury-in-fact—and even to conduct a fact-based analysis if necessary—across all areas of law.