In 2005 file image, Atlanta Brave Melky Cabrera takes a swing against the Chicago Cubs. Cabrera hit the foul ball that struck a 6-year-old child in the head in 2010. Phil Skinner/ajc, pskinner@ajc.com
Photo: Phil Skinner
Photo: Phil Skinner

Dad raises stakes in foul-ball lawsuit vs. Braves

Major League Baseball recommends more netting along foul lines

The father of a 6-year-old girl whose skull was shattered by a foul ball at Turner Field has raised the stakes in his lawsuit against the Braves: he has added Major League Baseball as a defendant even as the league is recommending extensions to safety netting at all 30 ballparks next year.

The league said on Wednesday that it is encouraging clubs to erect netting — or another protective screen or barrier — 70 feet down the foul lines from home plate. This would cover field-level seats to the dugouts, shielding fans there from line-drive foul balls. But it’s not clear that even the extended netting, which in many cases will just reach the dugout, would have shielded Fred Fletcher’s daughter from the ball that hit her.

Fletcher was sitting with his daughter, then 6, behind the visiting team’s dugout — an area unprotected by netting — during a game on Aug. 30, 2010, at Turner Field. In the bottom of the fourth inning, Braves outfielder Melky Cabrera sliced a foul ball that struck the child in the head, fracturing her skull in 30 places and causing traumatic brain injury.

Two years later, Cabrera, who now plays for the Chicago White Sox, was suspended 50 games for testing positive for a performance-enhancing drug — testosterone.

In the litigation, Fletcher’s lawyers are also asking MLB to turn over documents from its investigations of players who used performance-enhancing drugs. They want to show jurors that juiced-up ballplayers hit balls harder, giving fans even less time to get out of the way of foul balls driven into the stands.

In a statement Wednesday, the Braves said they plan to adjust the height of their current foul-line netting from 10 feet to 35 feet, the same height as the netting directly behind home plate.

“This increases the netting on the outer wings an additional 25 feet, giving fans additional options when purchasing their tickets,” the statement said.

The team does not plan to extend the netting any farther down the foul lines. Nor did the Braves disclose any plans for SunTrust Park, the new stadium under construction in Cobb County. Field-level seats at SunTrust Park, which will open in 2017, will be even closer to the field than those at Turner Field.

Mike Moran, who represents the girl’s father, said he had not had time to review the extensions to know whether, had they been in place in 2010, the child would have been shielded.

Braves, league failed to protect child, suit says

Fletcher’s lawsuit seeks damages for his daughter’s injuries, her pain and suffering, the cost of her medical treatment, her diminished ability to work and her future lost earnings. The Braves and MLB are liable because they failed to use protective netting to shield the girl, despite knowing the dangers to fans in that area, the lawsuit contends.

In a recent court filing, Fletcher’s lawyers said they previously declined to name MLB as a defendant because it was their understanding that the league had no role in decisions about netting at Turner Field. But since the suit was filed three years ago, the lawyers said, they have learned MLB was involved in setting requirements for the netting and that the Braves had submitted proposed changes to the league for review and approval.

Neither the Braves nor MLB had any comment on the litigation.

On Wednesday, baseball Commissioner Rob Manfred said that even though MLB clubs already warn fans about the dangers of batted balls and broken bats that fly into the stands, clubs should continue to explore ways to educate fans about it. Also, the commissioner’s office will work with clubs and online ticket sellers to identify ways to tell customers which seats are — and are not — behind protective netting, he said.

If Fletcher’s lawsuit against the Braves and MLB goes to trial in Fulton County State Court, the jury probably will not hear about MLB’s new recommendations and any extensions of netting that are erected. This only makes sense, because otherwise companies would be reluctant to fix problems if they thought those very fixes could then be used against them at a trial, said Richard Freer, an Emory University law professor.

Steroid use: 'I guess you could see this coming'

Bringing performance-enhancing drugs into the case is a fascinating litigation tactic, Freer said.

“Getting hit by a foul ball before the steroid era had potentially fatal consequences,” he said. “But making note that balls are traveling even faster because they were hit by juiced-up players? I guess you could see this coming.”

The Braves previously sought to get Fletcher’s lawsuit dismissed by invoking the so-called “Baseball Rule.” The rule, in force in other states, says if a stadium operator provides adequate screening behind home plate and enough seats for spectators who want to sit there, it cannot be held liable for balls and bats that enter the stands and hurt people.

But a Fulton judge declined to adopt the rule and, in 2014, the Georgia Court of Appeals said it found no reason to reverse that decision.

MLB’s decision to extend protective netting occurred after a spate of highly publicized injuries to fans last season. Among those incidents, according to published reports:

  • On June 5 at Boston’s Fenway Park, a shard from a broken bat struck Tonya Carpenter in the head. Bleeding profusely and screaming in pain, she was carried out of the stadium on a stretcher and hospitalized.
  • On July 6 at Miller Park in Milwaukee, a foul ball struck Laura Turek, who was sitting behind the dugout, just above her left eye. Her daughter has said doctors needed 80 stitches and two titanium plates to repair her mother’s face and multiple surgeries are to come.
  • On Aug. 21 at Comerica Park in Detroit, a woman sitting behind the dugout was hit by a line drive on the right side of her head. She was taken to a local hospital and released the next morning. An inning later, part of a bat split in half by a 98 mph fastball flew into the stands and hit a man, who was treated by paramedics at the park’s first aid station.

'Zero chance in this world' that a fan could duck

Players say fans cannot react fast enough to get out of the way of line drives scorched into the stands.

“A fan who’s never seen anything moving that fast at them in their life? No chance,” said Tigers outfielder Tony Gose, according to sports news website SB Nation. “There’s zero chance in this world, a fan sitting right there over our dugout could react. We can’t react that fast in the dugout.”

Gose, whose foul ball hit the woman at Comerica Park in August, said he was aware that fans who buy tickets attend games at their own risk. “But there’s something that they can do to prevent it,” he said, referring to ball clubs. “So why not just do it?” He worried that it will take someone dying to prod the league into taking proper precautions.

In the Atlanta litigation, Fletcher’s lawyers note that during the 2007 collective bargaining between MLB and the players association, the union asked the league to extend netting further down the foul lines to protect fans in areas such as where Fletcher’s daughter would have been seated. But MLB rejected the request, the lawsuit said.

In the Atlanta litigation, Fletcher’s lawyers note that during the 2007 collective bargaining between MLB and the players association, the union asked the league to extend netting further down the foul lines to protect fans in areas such as where Fletcher’s daughter would have been seated. But MLB rejected the request, the lawsuit said.

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