IN THE SUPREME COURT OF IOWA 

No. 07–0127 

Filed March 13, 2009 

TARA SWEENEY, Individually, and by 

CYNTHIA SWEENEY, Her Mother and Next Friend, 

 Appellants, 

vs. 

CITY OF BETTENDORF AND 

BETTENDORF PARKS AND RECREATION, 

Appellees. 

 Appeal from the Iowa District Court for Scott County, J. Hobart 

Darbyshire, Judge. 

 Plaintiffs appeal district court’s grant of summary judgment in 

negligent supervision case. AFFIRMED IN PART, REVERSED IN PART, 

AND REMANDED. 

 Joseph C. Creen of Bush, Motto, Creen, Koury & Halligan, P.L.C., 

Davenport, for appellants. 

 Martha L. Shaff and Edward J. Rose of Betty, Neuman & 

McMahon, P.L.C., Davenport, for appellees. 

 
2 

APPEL, Justice. 

This case involves an appeal from a district court order granting 

the City of Bettendorf summary judgment in a negligent supervision 

case. Here, an eight-year-old girl was injured by a flying baseball bat at 

a minor league game while on a field trip sponsored by the Bettendorf 

Parks and Recreation Department. The district court found that a 

permission slip signed by the parent of the injured girl amounted to an 

enforceable anticipatory release of future claims against the City. The 

district court in the alternative ruled that the plaintiffs failed to introduce 

sufficient evidence to show that the City violated a duty of care owed to 

the plaintiffs. For the reasons expressed below, we affirm in part, reverse 

in part, and remand the case to the district court. 

I. Background Facts and Prior Proceedings.

Eight-year-old Tara Sweeney enjoyed baseball games. She 

participated in field trips to Davenport, Iowa, sponsored by the 

Bettendorf Parks and Recreation Department to see minor league 

baseball games. In the past, according to Tara, the children sat in 

“comfy seats” behind home plate that were protected by screening. 

In 2003, Tara wanted to go to another ball game. Prior to the field 

trip, Tara’s mother, Cynthia Sweeney, was asked to sign what was 

entitled a “Permission Slip,” which the Department required of all 

participants. The text of the “Permission Slip” was as follows: 

I hereby give permission for my child Tara M. Sweeney to 

attend the Bettendorf Park Board field trip to John O’Donnell 

Stadium with the Playgrounds Program on Monday, 

June 30, 2003. I realize that the Bettendorf Park Board is 

not responsible or liable for any accidents or injuries that 

may occur while on this special occasion. Failure to sign 

this release as is without amendment or alteration is 

grounds for denial of participation. 
3 

Prior to signing the “Permission Slip,” Cynthia talked with a 

supervisor about the trip. She was told the times of the field trip and 

who would be supervising Tara’s group. She then executed and returned 

the permission slip to the Department. 

At the game, the children did not sit in the “comfy seats” behind 

screening as they had in the past. Instead, Tara was required by the 

Department to sit on bleachers or the adjacent grassy area along the 

third base line that was unprotected by screening or netting. Tara chose 

a seat in the third or fourth row of bleachers. The Department 

supervisors did not allow the children to move to another location in the 

stadium. 

At a midpoint in the game, a player lost his grip on a bat. The 

record indicated that the bat flew a distance of about 120 feet along the 

third base line at a height of approximately six feet. The bat was 

airborne for two or three seconds before it struck Tara on the right side 

of her head. Prior to being struck by the bat, Tara had turned to talk to 

a friend. 

At the time of the incident, no supervisors from the Department 

were in Tara’s immediate vicinity. One supervisor who viewed the 

incident from a distance testified that an adult in the area could possibly 

have done something, either trying to knock down the bat or yelling for 

the kids to duck. Cynthia, at her deposition, however, testified that the 

incident could not have been avoided had an adult been in Tara’s place. 

Plaintiffs sued the City and a number of other defendants, 

including the baseball player involved and the teams playing the game. 

The plaintiffs’ claims against the City sounded in negligence. 

The City filed a motion for summary judgment asserting that the 

permission slip constituted a waiver of the plaintiffs’ claims and that, in 
4 

any event, the plaintiffs could not show a breach of any duty of care 

owed by the City. With respect to the permission slip, the City noted that 

the language specifically states that a parent realizes that the “Bettendorf 

Park Board is not responsible or liable for any accidents or injuries that 

may occur while on this special occasion” and that “[f]ailure to sign this 

release” is “grounds for denial of participation.” On the issue of breach of 

duty, the City argued that there was nothing that the City should have 

done to avoid the accident. 

Plaintiffs resisted and filed a cross motion for summary judgment. 

On the issue of waiver, the plaintiffs contended that the permission slip 

did not amount to a valid anticipatory release of future claims based 

upon the City’s negligent acts or omissions. The plaintiffs further argued 

that even if the permission slip amounted to a valid release, it was fatally 

flawed because it purported to release only the Department and not the 

City. Finally, plaintiffs asserted even if the permission slip amounted to 

an anticipatory release of future claims based on acts or omissions of 

negligence, statutory and common law public policy prevents a parent 

from waiving such claims on behalf of a minor child. 

In resisting the City’s motion for summary judgment based upon 

the lack of a breach of duty, the plaintiffs, in addition to testimony of lay 

witnesses, offered a report from Susan Hudson, a professor at the 

University of Northern Iowa and an expert on playground and park 

safety. Based on her review, Hudson found that the Department 

breached its duty of care toward the plaintiffs in several ways. Hudson 

opined that the Department breached its duty of care by: (1) not 

informing the Sweeneys about the nature of possible harm even though 

Cynthia personally inquired about the nature of the activity; (2) not 

anticipating the known and foreseeable harm that could occur by not 
5 

paying attention to the selection of seating; (3) not providing direct 

instructions to the children about paying attention to the possibility of 

bats and balls flying into the bleacher area; and (4) not providing direct 

supervision for children under their care. 

The district court granted the City’s motion for summary 

judgment. The district court found that the permission slip constituted a 

valid waiver of plaintiffs’ claims. In the alternative, the district court 

found that the plaintiffs did not present sufficient evidence to establish a 

breach of duty owed to them. Plaintiffs appealed. 

II. Direct vs. Interlocutory Appeal.

At the outset, there is a question of whether this case presents a 

direct appeal or is interlocutory in nature. A direct appeal is heard as a 

matter of right, while this court has broad discretion to consider whether 

to hear an interlocutory appeal. Iowa R. App. P. 6.1(c). The central issue 

is whether an appeal of a district court order which dismisses all claims 

against one party in a negligence action involving multiple defendants is 

direct or interlocutory. 

In Buechel v. Five Star Quality Care, Inc., 745 N.W.2d 732 (Iowa 

2008), we considered this question. In Buechel, we noted that under our 

comparative fault statute, fault sharing cannot occur with a defendant 

who is no longer a party to the litigation through grant of summary 

judgment. Buechel, 745 N.W.2d at 735; Spaur v. Owens-Corning 

Fiberglas Corp., 510 N.W.2d 854, 863 (Iowa 1994). As a result, the 

issues in the motion for summary judgment had impact on the issues of 

liability against the remaining defendants, are not severable, and are 

therefore interlocutory in nature. Buechel, 745 N.W.2d at 735. 

Nonetheless, as in Buechel, we exercise our discretion to treat the notice 
6 

of appeal here as an application for interlocutory appeal, grant the 

application, and consider the underlying merits. Id. at 736. 

III. Standard of Review. 

We review a district court’s order on a motion for summary 

judgment for correction of errors at law. Ratcliff v. Graether, 697 N.W.2d 

119, 123 (Iowa 2005). Summary judgment is appropriate when the 

moving party shows there is no genuine issue of material fact. Berte v. 

Bode, 692 N.W.2d 368, 370 (Iowa 2005). Summary judgment should not 

be granted if reasonable minds can differ on how a material factual issue 

should be resolved. Walker v. Gribble, 689 N.W.2d 104, 108 (Iowa 2004). 

IV. Discussion. 

A. Permission Slip as Anticipatory Release of Claims of 

Negligence. This case involves an exculpatory provision contained in a 

permission slip signed by the parent of a minor child in connection with 

recreational activities sponsored by a municipality.1 The validity of 

exculpatory provisions which release future claims in connection with 

recreational activities is a topic that has been thoroughly explored in the 

academic literature. See, e.g., Mary Ann Connell & Frederick G. Savage, 

Releases: Is There Still a Place for Their Use by Colleges & Universities?, 

29 J.C. & U.L. 579 (2003); Mark Seiberling, “Icing” on the Cake: Allowing 

Amateur Athletic Promoters to Escape Liability in Mohney v. USA Hockey, 

Inc., 9 Vill. Sports & Ent. L.J. 417 (2002). The academic commentators 

note courts considering such exculpatory provisions deal with the 

 1While many cases appear to use the terms interchangeably, an exculpatory 

provision is similar but not identical to an indemnity provision. An indemnity provision 

ordinarily allocates risks of third party losses among parties to a contract. In an 

indemnity context, at least one party remains liable for the third party losses. The 

victim thus still has a source of recovery. An exculpatory provision, however, does not 

allocate risk between responsible parties but eliminates liability all together. Cathleen 

M. Devlin, Indemnity & Exculpation: Circle of Confusion in the Courts, 33 Emory L.J. 

135, 170–71 (1984). 
7 

inherent tensions between the law of torts, which generally requires 

parties to be responsible for their acts of negligence, and the law of 

contracts, which allows a competent party to make his or her own 

agreements. Connell & Savage, 29 J.C. & U.L. at 580; Seiberling, 9 Vill. 

Sports & Ent. L.J. at 428. 

The early Iowa cases dealing with exculpatory provisions involve 

real estate contracts. As early as 1921, we considered the effect of a 

provision in a real estate lease that provided that in no case should the 

lessor be liable for damage to the property. Oscar Ruff Drug Co. v. W. 

Iowa Co., 191 Iowa 1035, 181 N.W. 408 (1921). Among other things, we 

noted that the clause in the lease was couched in general terms and did 

not specifically exempt the lessor from liability for its own negligent acts. 

Id. at 1042, 181 N.W. at 411. As a result, we held that the lease did not 

release the lessor from damages resulting from the lessor’s own 

negligence. Id. at 1043, 181 N.W. at 412. 

More than thirty-five years later, we considered the effect of 

provisions in a real estate lease which the tenant claimed relieved the 

tenant from liability for a fire that was allegedly caused by its own 

negligence. Sears, Roebuck & Co. v. Poling, 248 Iowa 582, 81 N.W.2d 462 

(1957). The lease in Sears, among other things, obligated the tenant to 

keep the premises in good condition, “loss by fire . . . excepted.” Id. at 

586, 81 N.W.2d at 464. While this contractual provision might have had 

a bearing on fire losses not caused by the tenant’s negligence, we held 

that the general exculpatory language did not immunize the tenant from 

liability for damage to the landlord’s premises caused by its own 

negligence. Id. at 589, 81 N.W.2d at 466. In reaching this 

determination, we cited with approval an annotation stating that “broad 

exculpatory provisions” would rarely immunize a defendant for acts of 
8 

affirmative negligence. Id. at 588, 81 N.W.2d at 465 (citation omitted). 

We further cited with approval Oscar Ruff Drug and cases from other 

jurisdictions holding that contract provisions will not be held to relieve a 

party of liability for its own negligence unless the intention to do so is 

clearly expressed. Id. at 591–92, 81 N.W.2d at 467–68; see Oscar Ruff 

Drug, 191 Iowa at 1035, 181 N.W.2d at 408; see also Fields v. City of 

Oakland, 291 P.2d 145, 149 (Cal. Ct. App. 1955); Winkler v. Appalachian 

Amusement Co., 79 S.E.2d 185, 190 (N.C. 1953); Carstens v. W. Pipe & 

Steel Co., 252 P. 939, 941 (Wash. 1927). 

Following Sears, we decided Baker v. Stewarts’ Inc., 433 N.W.2d 

706 (Iowa 1988), a case outside the real estate setting. In Baker, we 

considered the validity of a document signed by a plaintiff who claimed 

that hair straightening products applied to her scalp at a cosmetology 

school produced subsequent baldness. Baker, 433 N.W.2d at 707. The 

document stated in relevant part, “I will not hold the Stewart School, its 

management, owners, agents, or students liable for any damage or 

injury, should any result from this service.” Id. 

In Baker, we held that this document did not amount to an 

anticipatory release of future claims based upon negligent acts or 

omissions of the professional staff of a cosmetology school because a 

release of such claims would not be apparent to a casual reader. Id. at 

709. We cited Sears and dicta in the indemnity case of Evans v. Howard 

R. Green Co., 231 N.W.2d 907, 916–17 (Iowa 1975), for the proposition 

that general exculpatory provisions do not cover the negligence of a party 

unless the intention to do so is clearly expressed. Id. In other words, the 

general exculpatory provision in Baker, which stated that the customer 

would not hold “management, owners, agents or students liable for any 
9 

damage or injury,” was insufficient to release the defendant from liability 

for the negligent acts of its professional staff. Id.

In contrast, in Huber v. Hovey, 501 N.W.2d 53, 56 (Iowa 1993), we 

held that a document signed by a spectator to an auto race did amount 

to an enforceable anticipatory release of future claims based on negligent 

acts or omissions of a party. In Huber, the document in question 

emphasized that it was a “covenant not to sue” and that it “releases” the 

promoter “from all liability . . . [for] all loss or damage, and any claim . . . 

on account of injury . . . whether caused by the negligence of the 

releasees or otherwise. . . .” 501 N.W.2d at 54. We distinguished this 

language from the sort utilized in Baker, noting that the document 

specifically indicated that it was a release of claims caused by the 

negligence of one of the parties. Id. at 56; see also Grabill v. Adams 

County Fair & Racing Ass’n, 666 N.W.2d 592 (Iowa 2003). 

The permission slip in this case is much closer to the document in 

Baker than in Huber. As in Baker, the permission slip contains no clear 

and unequivocal language that would notify a casual reader that by 

signing the document, a parent would be waiving all claims relating to 

future acts or omissions of negligence by the City. Baker, 433 N.W.2d at 

707. The language at issue here refers only to “accidents” generally and 

contains nothing specifically indicating that a parent would be waiving 

potential claims for the City’s negligence. See Alliant Energy-Interstate 

Power & Light Co. v. Duckett, 732 N.W.2d 869, 878 (Iowa 2007) (holding a 

utility tariff that released utility from “all claims, demands, costs, or 

expenses for injury . . . or damage” was not sufficient to release utility 

from its own negligent acts). As noted in a recent best seller, the term 

“accident” normally means “unpreventable random occurrences.” See

Marc Gernstein with Michael Ellsberg, Flirting with Disaster: Why 
10 

Accidents are Rarely Accidental 3 (2008). The general language in this 

permission slip simply does not meet the demanding legal standards of 

our Iowa cases. 

While we have not previously considered the effect of exculpatory 

provisions in the specific context of sponsored recreational activities, we 

see no basis for departing from the Baker-Huber principles in this 

context. The cases from other jurisdictions demonstrate the reluctance 

of courts to provide defendants who sponsor recreational activities a 

more lenient framework for analyzing exculpatory clauses seeking to 

limit liability for the sponsors’ own negligence. Several state courts in a 

recreational context have adhered to a bright-line test, requiring that the 

specific words negligence or fault be expressly used if an exculpatory 

provision is to relieve a defendant from liability for its own negligent acts 

or omissions. See Alack v. Vic Tanny Int’l of Mo., Inc., 923 S.W.2d 330, 

337 (Mo. 1996) (noting general exculpatory language releasing “any . . . 

injuries” and “all claims” does not suffice to release party of its own 

negligence, because such language creates a latent ambiguity in 

exculpatory contracts); Geise v. Niagara County, 458 N.Y.S.2d 162, 164 

(Sup. Ct. 1983) (holding words “fault” or “neglect” must be used to bar 

claim for party’s own negligence). 

Other courts in the context of recreational activities have not 

required magic words, but have imposed a demanding requirement that 

the intention to exclude liability for acts and omissions of a party must 

be expressed in clear terms. Sirek v. Fairfield Snowbowl, Inc., 800 P.2d 

1291, 1295 (Ariz. Ct. App. 1990) (requiring intention to immunize for 

negligent acts be clearly and explicitly stated); Turnbough v. Ladner, 754 

So. 2d 467, 470 (Miss. 1999) (finding general exculpatory provision 

inadequate and noting release of acts of a party’s own negligence must be 
11 

expressed in “specific and unmistakable terms”); Gross v. Sweet, 400 

N.E.2d 306, 309–10 (N.Y. 1979) (noting that while the word “negligence” 

need not specifically be used, words conveying a similar import must 

appear).2 The approach of these cases is consistent with the approach in 

Iowa exculpatory clause cases generally. See Baker, 433 N.W.2d at 709 

(requiring a clear and unequivocal expression). We see no reason to 

relax from the approach in Baker merely because this case involves a 

recreational activity. 

In looking at cases involving recreational activities, language 

similar to that used by the City in this case has been found insufficient 

to support a release of a party’s own negligence. For example, in Doyle v. 

Bowdoin College, 403 A.2d 1206, 1208 (Me. 1979), the court found the 

use of the term “accidents” insufficient to provide a basis for release from 

a party’s own negligence. See Hroblak, 27 U. Balt. L. Rev. at 471 (noting 

drafter should not seek to release party from any “accidents” because the 

term is ambiguous and insufficient to release own negligent acts); see 

also O’Connell v. Walt Disney World Co., 413 So. 2d 444, 446–47 (Fla. 

Dist. Ct. App. 1982) (finding language stating company held harmless 

from liability and from risks inherent in riding activity not sufficient to 

release its own negligence); Calarco v. YMCA of Greater Metro. Chicago, 

501 N.E.2d 268, 272–73 (Ill. App. Ct. 1986) (holding provision to hold 

 2Even in these jurisdictions, the better practice is to expressly use the term 

“negligence” in the exculpatory agreement. See Swartzentruber v. Wee-K Corp., 690 

N.E.2d 941, 945 (Ohio Ct. App. 1997) (noting that the “better practice” would be to 

expressly include the word “negligence”); Dobratz v. Thomson, 468 N.W.2d 654, 663 

(Wis. 1991) (refusing to adopt a magic words test, but noting the use of term 

“negligence” would be “very helpful”); see also Steven B. Lesser, How to Draft 

Exculpatory Clauses That Limit or Extinguish Liability, 75 Fla. B.J. 10, 14 (Nov. 2001) 

(noting from a practical standpoint, utilization of the word “negligence” should increase 

the likelihood of enforcement); Kevin G. Hroblak, Adloo v. H.T. Brown Real Estate, Inc.:

“Caveat Exculpator”—An Exculpatory Clause May Not Be Effective Under Maryland’s 

Heightened Level of Scrutiny, 27 U. Balt. L. Rev. 439, 469 (1998) (noting a risk adverse 

drafter should use the word “negligence” in all exculpatory clauses). 
12 

YMCA “free from any and all liability” and discharging “any and all rights 

and claims for damages” not sufficient to relieve YMCA of liability for its 

own negligence). 

For the reasons expressed above, we hold that the language in the 

permission slip in this case does not constitute an enforceable 

anticipatory release of claims against the City for its negligent acts or 

omissions in connection with the field trip.3 

B. Application of Inherent Risk Doctrine to Defeat Negligent 

Supervision Claim. The City, while acknowledging that it owed Tara a 

duty of care, seeks to limit that duty through the application of the 

inherent risk doctrine. The City claims that the risk of being injured by 

flying bats and balls when seated outside screening is unavoidable as it 

is an inherent part of attending a baseball game. As a result, the City 

claims, it had no duty to protect Tara from the subsequent injuries. The 

question of the proper scope of legal duty is a question of law to be 

determined by the court. J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C., 

589 N.W.2d 256, 258 (Iowa 1999); Leonard v. State, 491 N.W.2d 508, 

511–12 (Iowa 1992). 

 3As a result of our disposition of the release issue, we do not consider four other 

arguments advanced by the plaintiffs. First, we do not consider whether the failure to 

specifically name the City in the release prevents its enforcement by the City. Second, 

we also do not address the question of whether a parent may release the claims of a 

minor for the negligent acts or omissions of a sponsor of recreational events. The case 

law from other jurisdictions is divided on this issue. Compare Hojnowski v. Vans Skate 

Park, 901 A.2d 381, 389–90 (N.J. 2006), with Zivich v. Mentor Soccer Club, Inc., 696 

N.E.2d 201, 205 (Ohio 1998). See generally Doyice J. Cotten, Sarah J. Young, & Sport 

Risk Consulting, Effectiveness of Parental Waivers, Parental Indemnification Agreements, 

& Parental Arbitration Agreements as Risk Management Tools, 17 J. Legal Aspects Sport 

53 (2007). Third, we do not consider the implications on this case, if any, of Iowa Code 

section 599.2 (2003), which allows a minor to disaffirm contracts with certain 

exceptions. Fourth, we do not consider the general question of whether public policy 

voids a contract provision releasing claims of negligence under the circumstances 

presented here. See Tunkl v. Regents of Univ. of Cal., 383 P.2d 441, 446–47 (Cal. 1963). 
13 

In support of its position, the City cites Anderson v. Webster City 

Community School District, 620 N.W.2d 263 (Iowa 2000). In Anderson, a 

seven-year-old boy broke his leg while sledding during a noon recess at 

his elementary school. Anderson, 620 N.W.2d at 265. The jury 

instruction in that case noted that some risks naturally attend 

participation in recreational activities and that the sponsor has a duty 

only to protect a participant from unreasonable risks of harm. Id. at 

266. The Anderson court noted that the instruction was similar to the 

“primary assumption of risk doctrine” which, while no longer utilized in 

Iowa, was an alternative expression for the proposition that a defendant 

is not negligent or owed no duty for risks inherent in certain activities. 

Id. at 267. 

The City also cites Dudley v. William Penn College, 219 N.W.2d 484 

(Iowa 1974), in support of its motion for summary judgment. In Dudley, 

a plaintiff baseball player, who was hit by a foul ball, claimed that the 

college should have had dugouts or netting protecting the participants 

from the playing field. Dudley, 219 N.W.2d at 485. We rejected that 

claim, noting that the duty that was owed extended only to those risks 

that were unreasonable. Id. at 486–87. “[P]layers in athletic events 

accept the hazards which normally attend the sport.” Id. at 486. As a 

result, we held that the injured player did not have a cause of action 

against the coach and college. Id. at 487. In sum, the City argues that it 

did not breach its duty of care because being struck by a bat is an 

inherent risk of attending a minor league baseball game. 

Plaintiffs view the case differently. They distinguish Anderson on 

the ground that the City had a much greater control over the activities of 

the children in this case. They note that the City determined that Tara 

would sit on bleachers unprotected by screening and that the City chose 
14 

not to follow accepted recreational and leisure standards for the proper 

safety and supervision of children by failing to ensure direct supervision 

and by failing to warn them and their parents of the danger of flying bats 

when sitting in unprotected areas. The plaintiffs further note that in 

Anderson, whether the defendants unreasonably failed to protect the 

plaintiff was a question for the jury to decide. 

The plaintiffs assert Dudley is inapposite. They see Dudley as a 

variant of the limited liability rule which relieves baseball park owneroperators of responsibility for flying objects. Here, however, the question 

on appeal relates not to the duty of the owner-operator of a baseball 

facility, but to the duty of the City to properly supervise Tara while 

attending the game. The City, plaintiffs argue, directed Tara to sit in an 

unprotected area and then did not provide adequate direct supervision in 

that area. Further, plaintiffs argue that their expert provided a sufficient 

basis for a jury to determine that the City acted unreasonably under all 

the facts and circumstances. 

In the majority of cases, spectators sitting outside protective 

netting at baseball stadiums have been unable to recover from owners or 

operators for injuries related to errant bats and balls on the ground that 

such injuries were an “inherent risk” of attending the game. See 

generally James L. Rigelhaupt, Jr., Annotation, Liability to Spectator at 

Baseball Game Who is Hit by Ball or Injured as Result of Other Hazards of 

Game, 91 A.L.R.3d 24 (1979). Claims against owners or operators for 

injuries incurred by flying bats and balls that have been decided after the 

movement toward comparative negligence tend to characterize 

nonliability as based on a “limited duty” theory. See, e.g., Vines v. 

Birmingham Baseball Club, Inc., 450 So. 2d 455, 456 (Ala. 1984) (Torbert, 

C.J., concurring specially); Lawson v. Salt Lake Trappers, Inc., 901 P.2d 
15 

1013, 1015–16 (Utah 1995); Perez v. McConkey, 872 S.W.2d 897, 900 

(Tenn. 1994); Daniel E. Wanat, Torts and Sporting Events: Spectator and 

Participant Injuries—Using Defendant’s Duty to Limit Liability as an 

Alternative to the Defense of Primary Implied Assumption of Risk, 31 

U. Mem. L. Rev. 237 (2001). 

Regardless of whether the approach is characterized as involving 

inherent risk or a limited duty, courts applying the doctrine have held 

that the owner or operator of a baseball stadium is not liable for injury to 

spectators from flying bats and balls if the owner or operator provided 

screened seating sufficient for spectators who may be reasonably 

anticipated to desire such protection and if the most dangerous areas of 

the stands, ordinarily the area behind home plate, were so protected. 

Quinn v. Recreation Park Ass’n, 46 P.2d 144, 146 (Cal. 1935); Akins v. 

Glens Falls City Sch. Dist., 424 N.E.2d 531, 533–34 (N.Y. 1981). In 

Arnold v. City of Cedar Rapids, 443 N.W.2d 332, 333 (Iowa 1989), we 

adopted a version of the limited duty rule in a premises liability case with 

respect to misthrown balls.4 

 4There has been some resistance to inherent risk or the limited duty doctrine. 

For example, Professor James noted long ago that the primary assumption of risk 

doctrine, of which the limited duty rule is a variant, provides “an exceptional 

curtailment of defendant’s duty below the generally prevailing one to take care to 

conduct oneself so as not to cause unreasonable danger to others.” Fleming James, Jr., 

Assumption of Risk, 61 Yale L. J. 141, 168 (1952). More recently, a few judges have 

directly challenged the limited duty rule. See Maisonave v. Newark Bears Prof’l 

Baseball Club, Inc., 881 A.2d 700, 710–13 (N.J. 2005) (Wallace, J., concurring), 

superseded by statute, New Jersey Baseball Spectator Safety Act of 2006, N.J. Stat. 

Ann. § 2A:53A-43-48 (2006); Akins, 424 N.E.2d at 536 (Cooke, J., dissenting). There 

appears to be a move within the legal profession away from the rule. See Restatement 

(Third) of Torts: Apportionment of Liability § 3 cmt. c, illus. 6, at 32–33 (2000) 

(replacing limited duty with comparative fault in cases involving injury to baseball 

spectators). In addition, recent academic commentary has challenged the doctrine. 

David Horton, Rethinking Assumption of Risk & Sports Spectators, 51 UCLA L. Rev. 339, 

366 (2003) (noting increasingly hazardous nature of stadium seating in light of 

increased pitching speeds, greater batting capability, and stadium design that places 

patrons in a zone of danger); Gil Fried & Robin Ammon, Baseball Spectators’ 

Assumption of Risk: Is it “Fair” or “Foul”?, 13 Marq. Sports L. Rev. 39, 61 (2002) (same). 
16 

This case, however, does not involve a premises liability claim 

against the owner or operator of a baseball stadium. Instead, the issue 

is whether the district court erred in granting summary judgment in a 

negligent supervision case against the City based on its view that the 

injury was due to “an inherent risk in attending the baseball game.” 

We conclude that the district court erred in granting summary 

judgment based on inherent risk. A negligent supervision case is 

fundamentally different than a case involving premises liability. The 

eight-year-old child in this case made no choice, but instead sat where 

she was told by the Department. The plaintiffs further claim that there 

was inadequate adult supervision where the child was seated. The 

alleged negligence in this case does not relate to the instrumentality of 

the injury, but instead focuses on the proper care and supervision of 

children in an admittedly risky environment. See, e.g., Stanley v. Bd. of 

Educ., 293 N.E.2d 417, 422 (Ill. App. Ct. 1973) (holding alleged negligent 

supervision of children in thrown bat case raises jury question in light of 

expert opinion); Cook v. Smith, 33 S.W.3d 548, 553–54 (Mo. Ct. App. 

2000) (noting acceptance of custody and care of minor child creates duty 

of care independent of premises liability); Havens v. Kling, 277 A.D.2d 

1017, 1018 (N.Y. App. Div. 2000) (holding parents of eleven-year-old 

inexperienced golfer did not have claim against twelve-year-old golfer who 

hit son on the head with club, but did have claim against golf shop and 

event sponsor for negligent supervision); Gordon v. Deer Park Sch. Dist. 

No. 414, 426 P.2d 824, 828 (Wash. 1967) (finding possible negligence 

claim where bat slips from hands of teacher). 

___________________________ 

There is no occasion on this appeal to revisit the application of inherent risk or limited 

duty doctrine in the context of a premises liability claim. 
17 

Viewed as a negligent supervision case, the City had a duty to act 

reasonably, under all the facts and circumstances, to protect the 

children’s safety at the ball park. City of Cedar Falls v. Cedar Falls Cmty. 

Sch. Dist., 617 N.W.2d 11, 16–17 (Iowa 2000). The gist of the plaintiffs’ 

claim is that a substantial cause of the injury was the supervisors’ 

decision to allow the children, who cannot be expected to be vigilant at 

all times during a baseball game, to be seated in what a jury could 

conclude was an unreasonably hazardous location behind third base 

instead of behind the safety of protective netting. From this perspective, 

the inevitable exposure of the children to flying balls and bats that arises 

from sitting outside the range of protective netting does not provide a 

complete defense, but instead is a factor for a jury to consider in 

determining whether the acts and omissions of the supervisors were 

reasonable under all the facts and circumstances. As in Anderson, 

moreover, whether a defendant has breached its duty of care under all 

the circumstances is ordinarily a jury question, particularly where the 

plaintiff has offered expert testimony indicating that the defendant did 

not follow customary practices for the safety of children when engaged in 

recreational activities. Anderson, 620 N.W.2d at 266–67. 

As a result, the City is not entitled to summary judgment with 

respect to the specifications of negligence in the plaintiffs’ expert report 

on the ground of “inherent risk” or the “limited duty doctrine.” The 

extent to which an injured party knowingly engages in risky behavior in a 

negligent supervision case is a factor for the fact finder to consider in the 

framework of comparative fault. 

C. Cause in Fact Challenge to Claim of Lack of Direct 

Supervision. The City also advances an alternate argument in partial 

defense to some aspects of the plaintiffs’ negligent supervision claim. To 
18 

the extent that the plaintiffs’ case rested on the failure to have adult 

supervision in close proximity to Tara when the children were seated 

along the third base line, the City argued that such direct supervision 

would not have made a difference. The City’s argument amounts to a 

claim that even if the City breached its duty toward Tara by not providing 

adequate adult supervision, that breach of duty was not the cause of 

Tara’s injuries. 

We have held that causation has two components: cause in fact 

and legal cause. Faber v. Herman, 731 N.W.2d 1, 7 (Iowa 2007). Cause 

in fact is a but-for test, while determination of legal or proximate cause 

reflects a policy judgment that the cause of the accident is not so remote 

or attenuated that liability should not be imposed. Id. Ordinarily, 

determination of cause in fact is a question for the fact finder to 

determine. Id. 

Conceding for purposes of summary judgment that the City had a 

legal duty to reasonably supervise its charges, and further assuming that 

the City breached its duty of reasonable care by failing to provide direct 

supervision to the children in a ratio of one adult for ten children as 

suggested by plaintiffs’ expert, the alleged breach of duty cannot satisfy 

the “but-for” element of proximate cause for Tara’s injuries as a matter of 

law. Although whether a breach of duty was a cause in fact of injuries 

sustained by the plaintiff is ordinarily a fact question, the evidence in 

this case, even when viewed in the light most favorable to the plaintiff, 

does not establish a triable issue. 

In order to establish cause in fact, the plaintiff need not show 

certainty or inevitability, but the plaintiff must offer something beyond 

mere conjecture and speculation. Easton v. Howard, 751 N.W.2d 1, 6 

(Iowa 2008) (quoting George v. Iowa & S.W. Ry. Co., 183 Iowa 994, 997–
19 

98, 168 N.W. 322, 323 (1918)). A plaintiff must offer sufficient evidence 

for a fact finder to conclude by a preponderance of evidence that the 

injuries that occurred would likely have been avoided absent the breach 

of duty. Mere guesswork about what might have occurred is not enough. 

Here, the evidence simply is not sufficient to allow a reasonable 

fact finder to conclude that in all likelihood the injuries to Tara would 

have been avoided if the City would have provided the direct adult 

supervision as urged by plaintiffs’ expert. Even if the City provided direct 

supervision in the ratio of one adult for every ten children, there no is 

reason to believe that an adult supervisor would likely have been able to 

knock down the bat or warn Tara effectively to avoid injury. 

In order to block the flying bat, the supervisor would have had to 

have seen the bat leave the hands of the batter and would have had to 

have sufficient presence and verve to thrust himself or herself into 

harm’s way to knock down the projectile. This scenario is improbable 

enough, but there is also no reason to believe that a supervisor would 

have been sitting in sufficiently close proximity to be physically able to 

knock down the bat. In short, the City could have met the plaintiffs’ 

expert’s standard for direct supervision without affecting the outcome of 

this tragic affair. 

Perhaps realizing the difficulties of persuading a fact finder that a 

fortuitous courageous block would have occurred but for the breach of 

duty, the plaintiffs fall back on a warning theory. While an adult seated 

in the vicinity of Tara would have been in a position to provide a louder 

and more direct warning to her than a supervisor at a greater distance, a 

reasonable fact finder could not conclude that the accident would have 

likely been avoided if there was direct supervision as suggested by 

plaintiffs’ expert. The errant bat in this case did not fly like a helicopter 
20 

seed dropping from some tree, but rapidly ripped through the air at a low 

elevation to its unhappy destination. Under these facts, it is anyone’s 

guess as to whether a sharp verbal warning, even if immediately given, 

would have done the job. We therefore hold that plaintiffs have failed to 

generate a fact question on the proposition that enhanced direct 

supervision would have provided sufficient warning to Tara to avoid the 

injuries. 

Our ruling on the issue of cause in fact is consistent with the case 

law in a number of other jurisdictions that have considered the issue in 

the context of flying balls and bats.5 Further, our decision, though 

disappointing perhaps, will not come as a total shock to the plaintiffs. 

Tara’s mother testified in this case that there was nothing a supervisor 

sitting in the vicinity could have done to avoid Tara’s injuries. We do not 

regard Tara’s mother’s testimony as a binding admission, but the 

observation is obviously consistent with our conclusion that the evidence 

does not establish a triable issue of cause in fact on the ground of lack of 

direct supervision. Cf. Meyer v. Mulligan, 889 P.2d 509, 516 (Wyo. 1995) 

(noting that lay people are generally not competent to pass judgment on 

legal questions, including cause). 

V. Conclusion. 

The permission slip in this case did not release the City from 

alleged acts of future negligence. Further, the doctrine of inherent risk 

does not provide a basis to defeat the plaintiffs’ theories of negligence in 

this case. To the extent the plaintiffs argue that the City breached its 

duty of care by failing to provide direct supervision to the children once 

 5See, e.g., Benedetto v. Travelers Ins. Co., 172 So. 2d 354, 355 (La. Ct. App. 

1965) (finding no amount of supervision could have altered manner in which bat was 

thrown); Lang v. Amateur Softball Ass’n of Am., 520 P.2d 659, 662 (Okla. 1974) (finding 

no triable issue in wild pitch case where it was not reasonably apparent that injuries 

suffered were caused by wrongful act). 
21 

they were seated along the third base line at the ball park, we conclude 

that the plaintiffs failed as a matter of law to adduce sufficient evidence 

to raise a triable issue. To this extent, the City is entitled to summary 

judgment in this case. As a result, the district court’s grant of summary 

judgment is affirmed in part and reversed in part. 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except Cady, J., who dissents and Streit, J., 

who concurs in part and dissents in part. 

 
22 

#112/07–0127, Sweeney v. Bettendorf Parks & Recreation Dep’t

CADY, Justice (dissenting).

 I respectfully dissent. My departure from the decision of the 

majority is based on two principal reasons, both tied by a common 

thread. This common thread is woven with the clear understanding that 

a baseball game—America’s pastime—presents a known, but acceptable, 

threat of harm to spectators. This threat, of course, comes from 

baseballs and, on very rare occasions, bats or broken pieces of bats that 

enter the spectator area from the playing area. While these objects 

become coveted possessions for spectators of all ages, they are at the 

same time an inherent danger of attending the game. This danger is the 

basis for the lawsuit in this case, which I believe should be thrown out 

by a call made with relative ease. 

I. Release of Liability. 

 First, I believe the release of liability signed by the parents of the 

child hit by the baseball bat in this case was valid and prevents the 

parents from suing. The majority, of course, concludes the release was 

insufficient to cover the particular claim of negligent supervision brought 

against the city parks and recreation department, who organized the field 

trip to the ballgame. I agree the release would not cover the full range of 

injuries a child could reasonably be expected to encounter during a 

supervised field trip to a professional baseball park, but I believe it at 

least covered the very obvious and common danger associated with 

watching a baseball game—the very purpose of the field trip—that any 

reasonable parent would have understood and contemplated when 

deciding to permit their child to attend a baseball game. 

 The majority seems to construct a rule that invalidates all but the 

most sophisticated and carefully drawn releases by focusing on the 
23 

general principle of law that agreements to release a party from liability 

for his or her own negligence are disfavored. Yet, this broad principle is 

not a working rule of law and has given way to the more pragmatic, 

specific rule that a release must clearly identify to a casual reader those 

claims or injuries covered under the release. Baker v. Stewarts’ Inc., 433 

N.W.2d 706, 709 (Iowa 1988). Importantly, a release does not need to 

specifically mention a party’s “own negligence” to be valid. In proper 

context, most releases could only have meaning as applied to common 

claims of negligence. Instead, the inclusion of such language merely 

helps remove any doubt that the release intended to cover any 

circumstance under the umbrella of negligence. Yet, the critical inquiry 

is whether the incident claimed to be covered under the release was 

unambiguously identified to a casual reader. 

 For example, in Baker a release of “liability for any damage or 

injury” between a cosmetology school and a patron of services performed 

by students at the school did not cover an injury to the hair and scalp of 

the patron that was the subject of a negligence claim for liability against 

the professional staff who supervised the student services. Id. The 

language of the release failed to “clearly and unequivocally” express to a 

casual reader of the release that it included professional staff in the 

release of liability. Id. We did not totally invalidate the release as too 

vague due to the absence of any specific mention of negligence, but only 

found the language of the release was not broad enough to include 

professional staff. Id. A patron of the cosmetology school would not 

understand that he or she was releasing the professional staff from 

liability by casually reading the release. Id. Similarly, in Huber v. Hovey, 

501 N.W.2d 53, 54 (Iowa 1993), we were presented with a release of “all 

liability” for any claim of injury “whether caused by the negligence of the 
24 

releasees or otherwise.” The release was between a racetrack and 

spectators who entered the pit area of the racetrack, and we found the 

release did cover a spectator who entered the pit area and was injured 

when a wheel of a race car came off and struck the spectator. Id. at 56–

57. In response to the argument that the language of the release did not 

sufficiently identify the accident, we found the release covered the claim 

because it clearly identified the parties to the release, including 

spectators who entered the pit area, and clearly covered personal injuries 

to spectators who entered the pit area. Id. Under the circumstances, a 

casual signer of the racetrack release would understand that the injuries 

referred to in the release included injuries associated with car racing that 

could be expected to occur in the pit area. We did mention the release 

specifically covered injuries caused by the track’s own negligence, but 

only to further clarify that the release covered a broad range of personal 

injuries to spectators. The use of the term “negligence” in the release 

only helped clarify the broad type of injuries covered. It was not a 

predicate to covering any injury. 

 Overall, the Baker-Hovey approach considers the context and 

subject of a release between the parties and the language expressed in 

the release and looks to consider whether a casual signer would 

understand the injury or incident at issue was unambiguously covered. 

In this case, the language of the release may not cover a broad range of 

injuries that could be sustained by children who go on a field trip to a 

baseball park. For example, the release did not express the notion that 

injuries during the transportation of the children would be covered. The 

subject of the release was a baseball game, and a parent signing the 

release would likely not have transportation in mind without some 

specific identification or reference to the transportation component of the 
25 

field trip. However, the release did have meaning, and that meaning was 

the city would at least not be liable for those inherent injuries known to 

occur to spectators of a baseball game—the subject of the release. The 

release clearly identified the baseball stadium as the subject of the trip 

and stated the city would not be “liable for any accidents.” At a 

minimum, any parent signing the release would understand that those 

accidents known to occur to spectators were contemplated under the 

release of liability. 

II. No Duty of Care. 

 There is a second, more fundamental, reason the case should be 

dismissed. This reason is the city had no duty to protect the children at 

the baseball park from the inherent risks of the game of baseball as the 

children sat in their seats watching the game being played. 

 I completely agree the city had a duty to supervise the children 

throughout the field trip and to generally protect the children from 

reasonably foreseeable harm. However, the creation of a duty of care and 

the scope of the duty created are always questions of law. Courts have 

drawn a line on the scope of a duty of care to protect spectators of a 

baseball game at a baseball park. That line is roughly drawn in an area 

behind home plate. This area is where spectators need the most 

protection from foul balls, or perhaps an occasional wild throw. 

Protection is most needed in this area because the risk of harm to 

spectators is most foreseeable in this area of a baseball park. Thus, 

courts have consistently imposed a duty of care on baseball parks to 

protect spectators from balls entering the spectator area, and baseball 

parks have responded to this duty by installing protective netting in the 

area behind home plate. 
26 

 Of course, protective netting could easily be installed around the 

entire perimeter of the playing field, which would provide a consistent 

level of full protection for all spectators in all areas of the baseball park. 

Yet, courts have almost universally rejected such a notion as a legal 

duty, driven largely by public policy, which is normally a major 

component in deciding to create any duty of care. Thus, baseball parks 

have only a limited duty to spectators, and this duty is to protect 

spectators behind the area of home plate from foul balls. There is no 

duty to protect spectators in other areas of the baseball park, even 

though a foreseeable risk of harm continues to exist for spectators. Yet, 

this gap in protection comes into play due to public policy. Spectators 

want some limited protection from the inherent risks of attending a 

baseball game, but they also attend the game for the chance to catch a 

foul ball or a home run ball. This is a time-honored tradition, deeply 

imbedded into the game itself and the American culture. It is as much a 

part of the game as the game itself and has become an inherent but 

acceptable danger for spectators. 

 The majority throws a knuckleball in an effort to dance around this 

culture and the supporting legal principles by relying on the general duty 

of supervision as a separate, more demanding area of tort law. It holds 

that supervisors of children have a greater duty of care to protect child 

spectators from the inherent risks of watching a baseball game than the 

owner of the ballpark by requiring adult supervisors to place children in 

seats that are reasonably protected from the inherent risks. Put another 

way, the majority essentially declares an adult supervisor can commit 

negligence by allowing a child to sit in an area of the ballpark outside the 
27 

protective netting.6 This approach by the majority is scuffed and flawed. 

Most noticeably, it has no support in the application of the factors that 

go into the imposition of any duty of care and is detached from the 

traditions and expectations of the game of baseball. 

 At the outset, it must be acknowledged that, from a legal 

standpoint, this case is not merely about a flying bat. If it was, there 

could be no liability imposed on the city park and recreation department 

because a flying bat is too unforeseeable to give rise to a legal duty of 

care to protect a spectator. That is, it is not reasonably foreseeable to 

spectators that a flying bat will leave the playing field of a baseball park 

and enter the spectator area, especially an area thirty feet beyond third 

base. While the field trip organizers were charged with the responsibility 

to protect the children during the trip, a flying bat could not have been 

reasonably anticipated by the trip organizers as a potential harm to the 

children as they sat in the area of the ballpark beyond third base. Even 

on those rare occasions when a bat slips from the hands of a batter while 

 6It might be argued that the majority does not actually hold children must be 

seated behind the netting, but instead could be seated in those areas unprotected by 

netting that are not unreasonably exposed to the inherent risks of the sudden presence 

of flying objects. In other words, the majority believes the area of Tara’s seat in this 

case—thirty feet beyond third base, three or four rows into the spectator area—was an 

“unnecessarily hazardous location.” There was, of course, no evidence to support such 

a proposition, and such a proposition is contrary to the accepted configuration of a 

baseball stadium. This configuration recognizes the unreasonably hazardous area is 

behind home plate, which supports a duty of the owner of the ballpark to install 

protective netting around the area of home plate. Moreover, any spectator who has 

attended a professional baseball game or two knows that a sharply hit line drive off the 

bat of a professional baseball player that hooks foul can make any spectator location in 

the path of the ball, for a split second, hazardous. This hazard is the same whether a 

spectator is seated thirty feet beyond third base, 130 feet beyond third base, or even 

230 feet beyond third base. It is simply of no avail to attempt to distinguish between 

areas of reasonable hazards outside the area protected by netting and areas of 

unreasonable hazards outside the area protected by netting. Spectators at a 

professional baseball game are exposed to inherent dangers most anywhere outside the 

area protected by netting, and it is a danger society has chosen, until this case, to 

accept. 
28 

attempting to hit a pitched ball, the bat will most likely travel in the 

direction of the playing field, not 120 feet into the spectator area. It is an 

extremely rare event for spectators outside the playing area to be placed 

in the zone of danger of a flying bat, especially a spectator located 120 

feet down the third base spectator area. Consequently, no duty of care 

could be imposed to protect another against such specific, remote harm. 

Nevertheless, the law does not impose a duty of care based on the 

foreseeability of a specific means of injury. See Nachazel v. Miraco Mfg., 

432 N.W.2d 158, 160 (Iowa 1988) (“In negligence cases it is not 

necessary to a defendant’s liability that the wrongdoer should have 

foreseen the extent of the harm or the manner in which it occurred, so 

long as the injuries are the natural, though not inevitable, result of the 

wrong.”). Instead, only some type of injury must be foreseeable to give 

rise to a duty of care. In this case, the known danger is flying objects, 

which is nearly always a baseball. Thus, the duty of care imposed by the 

majority applies to all flying objects, including baseballs and flying bats. 

This means a supervisor must protect children from baseballs in the 

same way as flying bats. Accordingly, this is the duty imposed by the 

majority that I believe cannot withstand the scrutiny of the factors we 

rely upon in deciding to impose a duty of care on people, or the scope of 

such duty of care. 

 When courts step up to decide whether or not to establish a duty 

of care under a particular circumstance, three factors are primarily 

considered: (1) the relationship between the parties, (2) the reasonable 

foreseeability of harm, and (3) public policy concerns. See Stotts v. 

Eveleth, 688 N.W.2d 803, 810 (Iowa 2004). These are the same factors 

that were essentially applied by courts in creating the limited duty of 

care for baseball parks. Yet, the majority avoids any serious discussion 
29 

and analysis of these factors, but instead merely recognizes that premise 

liability law, which supports a limited duty of care, is different from 

supervision-liability law. The majority finds this difference justifies the 

imposition of a greater duty of care for supervisors to protect others from 

a premise-based harm than the entity responsible for the creation of the 

harm. The rationale for this finding is that the supervisor in this case 

“directed” the children to sit outside the area protected by the netting. 

 I agree a supervisor should have a continuing duty of care for the 

safety of children while at the ballpark to protect children from those 

foreseeable risks of harm that might be encountered from strangers, 

horseplay on the steps, or other such events, but not from the very risks 

unique to the game of baseball and those risks that our law has already 

decided do not need to be eliminated by the baseball parks. An analysis 

of the factors used to create a duty of care clearly supports this 

approach. 

 First, there is nothing particular about a relationship between a 

child spectator and an adult supervisor who accompanies the child to a 

baseball game that favors the imposition of liability. The relationship 

between parties is a factor in creating a duty of care because it often 

introduces special considerations that help support a duty, such as 

control by one party over the other party or special benefits derived by a 

party. As applied to a baseball game, this factor actually tends to 

support liability on the premise owner more than it does for liability of a 

supervisor. The premise owner has a contractual relationship with the 

spectator, primarily controls the designation of the area to sit, and 

receives a financial benefit. Moreover, the premise owner has the 

greatest practical ability to protect the spectator. For sure, the 

relationship between a supervisor of a field trip to a baseball game and a 
30 

participant on the field trip is also marked by control over the 

participant, but not the same type of control that relates to a reasonable 

and effective ability to provide protection from the inherent risks of 

watching the game. That is to say, the relationship does not easily 

transform into the ability of a supervisor to protect the child spectator 

from the inherent risks of the game. 

 The majority finds supervisors determine where children sit, but 

the baseball park ultimately controls the seating arrangement. 

Moreover, the seats around home base protected by netting are usually 

the most expensive seats and are normally reserved for season 

ticketholders. It is impractical to conclude the relationship between 

supervisors and children gave supervisors the ability to seat children 

behind the protective netting. 

 Second, the foreseeability of harm to child spectators in an 

unprotected area of the baseball park is the same, if not greater, for the 

owner of the premise as it is for supervisors of the spectators. The owner 

has considerably more knowledge of the baseball park and the dangerous 

areas of the park. A supervisor should be able to safely expect the most 

dangerous areas for flying objects have been covered by netting, allowing 

spectators to sit in unprotected areas that are less dangerous. 

 Third, and most important, the public policies that support 

limiting the duty of care to protect spectators from the inherent risks of 

watching baseball are the same under premise-liability law as under 

supervisor-liability law. These public-policy concerns have drawn the 

line, which leaves spectators unprotected except in an area behind home 

plate. In the other areas of the baseball park, the opportunity to catch or 

retrieve a foul ball has won out over the slight risk of harm presented to 

spectators. In other words, the known risk of harm is not unreasonable 
31 

under common, practical standards and policies society has embraced 

since the game was invented by Alexander Cartwright in 1845.7 

 Without examining these factors, the majority has changed the 

game for spectators who bring children to a baseball park to take in the 

joys of our national pastime. It does this by concluding children must 

not be exposed to the same inherent risks of attending a baseball game 

as unsupervised spectators, and by placing the responsibility for 

protecting children from the inherent risks of attending a baseball game 

on adults who accompany children to the game. This conclusion, at its 

core, can only be explained by policies of overprotectionism and the 

innate desire to remove children from all potential harm they might 

encounter in life. Yet, this goal can go too far and can end up depriving 

children of some of the most rewarding and beneficial experiences of 

their youth. This will be the likely result of the overprotective decision by 

the majority in this case. 

 With this decision, America’s pastime risks becoming a different, or 

less frequent, event for children than enjoyed in the past. With the 

imposition of liability on supervisors and others who accompany children 

to a professional baseball game, the common field trip, as well as the 

simple pleasure of a parent accompanying a child and the child’s friend 

to a baseball park, gives rise to new considerations that can only 

diminish enthusiasm for the trip. Court decisions can have vast 

consequences on our way of life, and a trip to the ballpark with children 

in tow may now need to be preceded by a trip to a lawyer’s office to 

obtain a release containing all the essential legal language demanded by 

 7Alexander Cartwright is recognized as the inventor of modern baseball. He 

published the rules of baseball in 1845, and his team, the Knickerbocker Club of 

New York, played the first recorded baseball game in 1846. 
32 

the majority or be confined to the most expensive seats behind home 

base, safely protected from the excitement and anticipation of catching a 

foul ball. 

 Just as there was no joy in Mudville the day the mighty Casey 

struck out, there is no joy on this day around Iowa’s ballparks.8 The 

majority has taken a mighty swing at the correct result in this case and 

missed by a mile. 

 

 8The legendary baseball poem, “Casey at the Bat,” was written by 

Ernest Lawrence Thayer, and first published in the San Francisco Examiner on June 3, 

1888. 
33 

 07–0127, Sweeney v. Bettendorf Parks & Recreation Dep’t 

STREIT, Justice (concurring in part and dissenting in part). 

 I concur in the majority’s opinion in regard to the release of 

liability signed by the parent of the child but join Justice Cady’s dissent 

as to the duty of care.