February 22, 2013
BUD ROUNTREE, PLAINTIFF-RESPONDENT,
BOISE BASEBALL, LLC, A DELAWARE LIMITED LIABILITY CORPORATION D.B.A. BOISE BASEBALL, D.B.A. BOISE BASEBALL CLUB D.B.A. BOISE HAWKS BASEBALL CLUB LLC, D.B.A. BOISE HAWKS, BOISE BASEBALL, LLC, AN IDAHO LIMITED LIABILITY CORPORATION D.B.A. BOISE BASEBALL, D.B.A. BOISE BASEBALL CLUB, D.B.A. BOISE HAWKS BASEBALL CLUB, LLC, D.B.A. BOISE HAWKS, BOISE HAWKS BASEBALL CLUB, LLC, AN ASSUMED BUSINESS FOR BOISE BASEBALL, LLC; HOME PLATE FOOD SERVICES, LLC, AN IDAHO LIMITED LIABILITY CORPORATION, (ONLY THE FOREGOING ARE APPELLANTS HEREIN); MEMORIAL STADIUM, INC.; WRIGHT BROTHERS, THE BUILDING COMPANY, AN IDAHO GENERAL BUSINESS CORPORATION, TRIPLE P, INC., AN IDAHO GENERAL CORPORATION, DIAMOND SPORTS, INC., A NEW YORK CORPORATION, DIAMOND SPORT CORP., AN IDAHO CORPORATION, DIAMOND SPORTS MANAGEMENT AND DEVELOPMENT, LLC, AN IDAHO LIMITED LIABILITY CORPORATION; CH2M HILL, INC., A FLORIDA CORPORATION D.B.A. CH2M HILL, CH2M HILL CONSTRUCTORS, INC. D.B.A. CH2M HILL, CH2M HILL E&C, INC., D.B.A. CH2M HILL, CH2M HILL ENGINEERS, INC. D.B.A. CH2M HILL, CH2M HILL INDUSTRIAL DESIGN AND CONSTRUCTION, AN ASSUMED BUSINESS NAME OF CH2M ENGINEERS, INC., CH2M ENGINEERS, INC., CH2M HILL, A FOREIGN CORPORATION DOING BUSINESS IN IDAHO UNDER THE NAME CH2M HILL; WILLIAM CORD PEREIRA; ROBERT PEREIRA, AND JOHN DOES I THROUGH X, WHOSE IDENTITIES ARE UNKNOWN, DEFENDANTS.
Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Darla S. Williamson, District Judge.
The opinion of the court was delivered by: J. Jones, Justice.
The order of the district court is affirmed.
This is a permissive appeal of an interlocutory order that declined to limit the duty owed by baseball stadium owners and operators to spectators injured by foul balls. Boise Baseball, LLC, Boise Hawks Baseball Club, LLC, and Home Plate Food Services, LLC, (collectively "Boise Baseball") sought, and we granted, a permissive appeal of the district court's order. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
The facts of this case are largely undisputed. Rountree has been a Boise Hawks season ticket holder for over 20 years. On August 13, 2008, he took his wife and two grandchildren to a Boise Hawks game at Memorial Stadium in Garden City. Rountree concedes the stadium has "exceptionally extensive [mesh] netting" to protect spectators from errant foul balls. Specifically, "most portions of the stadium are protected by vertical mesh netting approximately 30 feet high, and several areas are protected from above by horizontal netting." Rountree's tickets were in the "Viper" section, which is protected by netting. The stadium also has an area known as the "Hawks Nest," which is a dining area along the third base line covered by both vertical and horizontal netting. Adjacent to the Hawks Nest, at the "very end of the third base line," is the "Executive Club." The Executive Club, while covered by horizontal netting, "is one of the only areas in the whole stadium not covered by vertical netting."
At some point during the game, Rountree and his family went to the Hawks Nest to eat. After eating, they went to the Executive Club. While in the Executive Club, Rountree started talking to someone and stopped paying attention to the game. Approximately ten minutes later, Rountree heard the roar of the crowd and turned his head back to the game. He was struck by a foul ball and, as a result, lost his eye.
The entrance to the Executive Club has no warning signs regarding the dangers of being hit by foul balls. However, the back of Rountree's ticket stated that, "THE HOLDER ASSUMES ALL RISK AND DANGERS INCIDENTAL TO THE GAME OF BASEBALL INCLUDING SPECIFICALLY (BUT NOT EXCLUSIVELY) THE DANGER OF BEING INJURED BY THROWN OR BATTED BALLS." Rountree asserts he never read the back of his ticket prior to the injury.
On August 10, 2010, Rountree brought suit against approximately 17 Defendants. He alleged that their negligence caused the loss of his eye. On March 2, 2011, Boise Baseball moved for summary judgment, arguing that the district court should adopt the Baseball Rule, which limits the duty of stadium operators to spectators hit by foul balls, and find that Boise Baseball complied with it. Alternatively, Boise Baseball argued that Rountree impliedly "consented to the risk of being hit by a foul ball." The district court denied the motion on both grounds. Pursuant to Idaho Appellate Rule (I.A.R.) 12, Boise Baseball then moved for permission to appeal the district court's order. Permission to appeal was granted by the district court and, similarly, by this Court. Boise Baseball accordingly appealed.
I. Should this Court adopt the "Baseball Rule," which limits the duty owed by stadium operators to spectators injured by foul balls?
II. Is primary implied assumption of the risk a valid defense in Idaho?
A denial of a motion for summary judgment is ordinarily not an appealable order. However, "[p]ermission may be granted by the Supreme Court to appeal from an interlocutory order" if it "involves a controlling question of law as to which there is substantial grounds for difference of opinion and in which an immediate appeal from the order or decree may materially advance the orderly resolution of the litigation." I.A.R. 12; Budell v. Todd, 105 Idaho 2, 3, 665 P.2d 701, 702 (1983). Thus, this appeal, certified by the district court pursuant to I.A.R. 12, is "before [this Court] in an unusual posture." Winn v. Frasher, 116 ...
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