Opinion issued March 12, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-00433-CV

———————————

SHIRLEY MARTINEZ AND RICHARD MARTINEZ, Appellants

V.

HOUSTON MCLANE COMPANY, LLC D/B/A/ HOUSTON ASTROS 

BASEBALL CLUB, Appellee

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Case No. 2011-43267

O P I N I O N

Shirley and Richard Martinez appeal from the trial court’s summary 

judgment on their premises liability and negligence claims against Houston 
2

McLane Company, LLC d/b/a Houston Astros Baseball Club. We affirm the trial 

court’s judgment.

Introduction

Shirley Martinez was hit and injured by a batting practice home run before a 

Houston Astros home game at Minute Maid Park. Leading up to the game, she 

requested and the Astros donated 250 tickets to benefit members of the 72nd

Brigade Special Troops Battalion, a division of the Texas National Guard, and 

their families. The Astros selected the seat area, Section 153, and donated the 

tickets to the Texas National Guard Family Support Foundation. These seats are 

bleacher field level behind the right field wall, which is an area where a fly ball hit 

during the game would be a home run. Section 153 is not protected by a screen.

There is no map or diagram located outside or in the stadium that identifies the 

section as unprotected.

Martinez and her husband, a member of the Brigade, arrived at the game 

almost an hour early. From where they entered the stadium, the lack of screening is 

not visible until a spectator locates the general area of the seats and looks across 

the field. She did not request seats in a particular section or seats in a screened 

area. Nor was she told by the Astros that Section 153 was not screened. The Astros 

web site also did not identify the areas that were protected or unprotected by 

screens. Minute Made Park has a seating capacity of almost 41,000 seats, of which 
3

over 5,000 (or almost one-eighth) are shielded by a protective screen behind home 

plate.

After entering the stadium, Martinez walked to Section 153 while

accompanied by five children of military families she was caring for, including one 

young child she pushed in a stroller. The players were participating in batting 

practice at the time. As she was about to descend the stairs to her seat from the 

concourse, she was stopped by an usher who informed her that she could not take a 

stroller down to the seats; rather, the stroller had to be stored in a different, 

designated section of the stadium.1 Instead of taking the stroller to the storage area, 

she left the stroller at the top of the aisle and escorted the four older children down 

to the seats. After seating the four children and arranging for another adult to watch 

them while she took the young child and stroller to the storage area, she began 

ascending the stairs while carrying the young child. While her attention was 

focused on climbing the stairs and her back was to the playing field, she heard 

someone yell a warning that a fly ball was coming toward her. She shielded the 

child with her arms and was struck in the face by the ball. She suffered an orbital

fracture and corneal laceration.

 1 The usher believed that a fire marshal policy prohibited strollers in the 

seated area.
4

Martinez and her husband sued the Astros for negligence and premises 

liability. The Astros moved for a traditional summary judgment on all the 

Martinezes’ claims, which the trial court granted. This appeal ensued. 

Standard of Review

We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. 

Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In conducting our 

review, we view the evidence in the light most favorable to the nonmovant, 

crediting evidence favorable to that party if reasonable jurors could and 

disregarding contrary evidence unless reasonable jurors could not. Fielding, 289 

S.W.3d at 848. When, as here, the trial court’s summary judgment order does not 

specify the grounds on which it was granted, we must affirm the order if any of the 

asserted grounds for summary judgment are meritorious. W. Invs., Inc. v. Urena,

162 S.W.3d 547, 550 (Tex. 2005).

On a motion for traditional summary judgment, the movant has the burden to 

show that no genuine issue of material fact exists and that it is entitled to judgment 

as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison 

Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The movant may satisfy 

this burden by conclusively negating at least one essential element of each of the 
5

plaintiff’s causes of action. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 

(Tex. 1997).

Standard of Care/Protective Screening

1. Stadium owners and operators owe a limited duty

This Court held in Friedman v. Houston Sports Association, 731 S.W.2d 

572, 573 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.), that a stadium 

owner owes only a limited duty to spectators to protect them from baseballs hit 

into the stands. Under the limited duty, the stadium owner must provide 

“adequately screened seats” for all those who wish to sit behind a screen.

2

Friedman followed a line of Texas cases refusing to impose a duty on stadium 

owners to screen all seats or to warn about foul balls.3 The Fort Worth Court of 

Appeals relied on Friedman’s holding two years later.4 Thus, the “baseball rule,” 

as this limited duty is often referred to,5 is well established in Texas. 

 2 Friedman v. Houston Sports Ass’n, 731 S.W.2d 572, 574 (Tex. App.—

Houston [1st Dist.] 1987, writ ref’d n.r.e.) (quoting McNiel v. Fort Worth 

Baseball Club, 268 S.W.2d 244, 246 (Tex. Civ. App.—Fort Worth 1954, 

writ ref’d)).

3 Id. (citing, in addition to McNiel, Knebel v. Jones, 266 S.W.2d 470 (Tex. 

Civ. App.—Austin 1954, writ ref’d n.r.e.); Williams v. Houston Baseball 

Ass’n, 154 S.W.2d 874 (Tex. Civ. App.—Galveston 1941, no writ); Keys v. 

Alamo City Baseball Co., 150 S.W.2d 368 (Tex. Civ. App.—San Antonio 

1941, no writ)).

4 See Dent v. Texas Rangers, Ltd., 764 S.W.2d 345, 345–46 (Tex. App.—Fort 

Worth 1989, writ denied).
6

The Martinezes ask us to overrule established precedent and abolish the 

baseball rule. They contend that it is a “bad rule” providing an “undeserved shield” 

to stadium owners and does not reflect the realities of baseball in “the modern era.”

They argue that stadium owners’ limited duty is an outgrowth of “the old 

discarded” assumption-of-the-risk-rule and that “[t]he Texas comparative 

negligence scheme is well-equipped to examine the actions and inactions of all 

parties in determining each party’s level of culpability.” We decline to overrule 

precedent following the baseball rule for three reasons.

First, the doctrine of stare decisis creates a strong presumption that 

precedents should be followed to foster “efficiency, fairness, and legitimacy.”6 If 

courts did not follow precedent, “no issue could ever be considered resolved. The 

potential volume of speculative relitigation under such circumstances alone ought 

to persuade us that stare decisis is a sound policy.”7 Stare decisis is important to 

“give due consideration to the settled expectations of litigants . . . who have 

 

5 See, e.g., David Horton, Note, Rethinking Assumption of Risk and Sports 

Spectators, 51 UCLA L. REV. 339, 345–48 (2003) (discussing genesis and 

variations of the baseball rule).

6 Grapevine Excavation, Inc. v. Maryland Lloyds, 35 S.W.3d 1, 5 (Tex. 2000).

7 Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex. 1995).
7

justifiably relied on” precedent.8 Stare decisis “results in predictability in the law, 

which allows people to rationally order their conduct and affairs.”9 That interest is 

particularly acute here, since the rule announced in Friedman also arose out of a 

spectator’s injuries from a fly ball at an Astros game. Moreover, the rule has been 

in effect “since the early days of modern baseball.”10 The Astros, therefore, had 

good reason to rely on this rule in making decisions about protective screening. 

While the Martinezes argue that these precedents are not binding because 

they conflict with subsequent case developments, we disagree. The first of these 

developments—Texas’s adoption of a comparative negligence scheme—does not 

justify us overruling Friedman because in that same case our court specifically 

rejected the plaintiff’s contention that the limited-duty rule should be rejected in 

favor of comparative negligence.

11 Other courts have also held that the baseball 

 8 Id.

9 Grapevine Excavation, 35 S.W.3d at 5.

10 Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 881 A.2d 700, 704 

(N.J. 2005).

11 Friedman, 731 S.W.2d at 574. We noted that a stadium owner’s limited duty 

does not “eliminate the stadium owner’s duty to exercise reasonable care 

under the circumstances to protect patrons against injury.” Id.
8

rule has a sound basis despite the abolition of the assumption-of-the-risk 

doctrine.12

The second of the legal developments relied upon by the Martinezes—the 

Texas Supreme Court’s abolition of the no-duty rule in 197813—is also not a solid 

ground for displacing this line of cases because the baseball rule does not abolish a 

duty. As stated by the Fort Worth Court of Appeals in rejecting a similar argument, 

“a stadium owner does have a duty,”14 albeit a limited one. As described by the 

Michigan Court of Appeals, the baseball rule does not abrogate premises liability 

principles; rather, it identifies the stadium owner’s duty “with greater specificity 

than the usual” premises liability standards.15 As explained by the New Jersey 

Supreme Court, the baseball rule “establishes a fact-specific standard of care for 

injuries caused by errant balls at baseball stadiums by accounting for the open and 

obvious nature of the risk that batted balls pose to fans.”16 The limited duty 

 12 See, e.g., Akins v. Glens Falls City Sch. Dist., 424 N.E.2d 531, 533 (N.Y. 

1981).

13 Parker v. Highland Park, Inc., 565 S.W.2d 512, 517 (Tex. 1978).

14 Dent, 764 S.W.2d at 346 (emphasis in original). 

15 Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 221–23 (Mich. Ct. App. 

2001).

16 Maisonave, 881 A.2d at 705.
9

doctrine establishes the “‘outer limits’ of liability”17 and allows the stadium owner 

to “fulfill[] its duty of care as a matter of law.”18

Second, these precedents are not out of step with modern developments in 

the law. The rule recognized by Texas courts is the majority rule.19 It continues to 

 17 Benejam, 635 N.W.2d at 223 (quoting Bellezzo v. Arizona, 851 P.2d 847, 

853 (Ariz. Ct. App. 1992)).

18 Friedman, 731 S.W.2d at 574.

19 The following jurisdictions adopted the limited-duty rule in cases before 

2000: California (Quinn v. Recreation Park Ass’n, 46 P.2d 144 (Cal. 1935));

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

Louisiana (Lorino v. New Orleans Baseball & Amusement Co., 133 So. 408 

(La. Ct. App. 1931)); Minnesota (Brisson v. Minneapolis Baseball & 

Athletic Ass’n, 240 N.W. 903 (Minn. 1932), and Swagger v. City of Crystal,

379 N.W.2d 183 (Minn. Ct. App., 1985)); Missouri (Anderson v. Kan. City 

Baseball Club, 231 S.W.2d 170 (Mo. 1950), and Crane v. Kan. City 

Baseball & Exhibition Co., 153 S.W. 1076 (Mo. Ct. App. 1913)); New York 

(Akins, 424 N.E.2d 531); North Carolina (Erickson v. Lexington Baseball 

Club, 65 S.E.2d 140 (N.C. 1951), and Cates v. Cincinnati Exhibition Co., 1 

S.E.2d 131 (N.C. 1939)); Ohio (Cincinnati Baseball Club Co. v. Eno, 147 

N.E. 86 (Ohio 1925)); Utah (Lawson v. Salt Lake Trappers, Inc., 901 P.2d 

1013 (Utah 1995)); Washington (Perry v. Seattle School Dist. No. 1, 405 

P.2d 589 (Wash. 1965)).

The limited-duty rule was first recognized almost ninety years ago in Edling 

v. Kan. City Baseball & Exhibition Co., 168 S.W. 908 (Mo. Ct. App. 1914). 

The rule is not without its critics, however. See, e.g., Rountree v. Boise 

Baseball, LLC, No. 38966, 2013 WL 646277, at *5 (Idaho Feb. 22, 2013) 

(declining to adopt limited-duty rule because questions about stadium design 

and protective netting “are appropriate for the Legislature” and “no 

compelling public policy rationale exists for” the judiciary to adopt the rule); 

Horton, 51 UCLA L. REV. 339, 365–66; Gill Fried & Robin Ammon, 

Baseball Spectators’ Assumption of Risk: Is It ‘Fair’ or ‘Foul’?, 13 MARQ.

SPORTS L. REV. 39, 58 (2002).
10

be applied by courts across the country in the last twelve years.20 After weighing 

many of these policies, at least two state legislatures have likewise recognized that 

stadium owners and operators owe a limited duty.21

 

A number of other courts specifically hold that the stadium owner’s duty 

includes providing a net behind home plate. See Sciarrotta v. Global 

Spectrum, 944 A.2d 630, 631–32 (N.J. 2008) (holding that sports venue 

owner or operator that provides screened seating (1) sufficient for those 

spectators who may be reasonably anticipated to desire protected seats on an 

ordinary occasion, and (2) in the most dangerous section of the stands, has 

satisfied its duty of care to those spectators); Benejam, 635 N.W.2d at 221–

23 (holding that baseball rule “prevents liability if there are a sufficient 

number of protected seats behind home plate to meet the ordinary demand 

for that kind of seating. If that seating is provided, the baseball stadium 

owner has fulfilled its duty and there can be no liability for spectators who 

are injured by a projectile from the field.”); Akins, 424 N.E.2d at 533 (“[T]he 

owner must screen the most dangerous section of the field—the area behind 

home plate—and the screening that is provided must be sufficient for those 

spectators who may be reasonably anticipated to desire protected seats on an 

ordinary occasion.”); Lawson By & Through Lawson, 901 P.2d at 1015 

(stating that “[t]he area behind home plate is generally conceded to be the 

most dangerous area of a ball park” and “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.”).

20 The following jurisdictions have adopted the baseball rule since 2000: 

Michigan (Benejam, 635 N.W.2d at 225); New Jersey (Sciarrotta, 944 A.2d 

at 631–32); Nevada (Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d 

1172, 1176 (Nev. 2008)); New Mexico (Edward C. v. City of Albuquerque, 

241 P.3d 1086, 1088 (N.M. 2010)); Virginia (Thurmond v. Prince William 

Prof’l Baseball Club, Inc., 574 S.E.2d 246, 250 (Va. 2003) (adopting for 

adult who understands danger)).

21 Jasper v. Chicago Nat’l League Ball Club, Inc., 722 N.E.2d 731, 734–35 

(Ill. App. Ct. 1999) (recognizing that Illinois legislature adopted Baseball 

Facility Liability Act (745 ILCS 38/1 et seq. (West 1996)) to overrule two 

cases that had created liability for stadium owners for injuries caused by 
11

Third, we do not overrule long-settled precedent and create a split between 

sister courts of concurrent appellate jurisdiction “unless there is an extremely 

compelling reason to do so.”22 No compelling reasons exist here. On the contrary, 

these precedents and legislative acts are supported by public policy considerations 

that strike a balance among multiple interests and presumptions about attendance at 

a baseball game. First, there is the interest of fans who desire the intimate feeling 

from sitting as close to the action as possible with the possibility of snagging a 

ball.23 Second, there is the interest of fans who want protection from injury due to

 

batted balls and to shift expense for such injuries to spectators, unless injury 

is caused by “the owner’s willful and wanton conduct”); N.J.S.A. 2A:53A43 to -48 (enacting New Jersey Baseball Spectator Safety Act of 2006 and 

providing that “spectators of professional baseball games are presumed to 

have knowledge of and to assume the inherent risks of observing 

professional baseball games” and therefore “an owner shall not be liable for 

an injury to a spectator resulting from the inherent risks of attending a 

professional baseball game” provided owner provides “a net behind home 

plate” and posts statutorily designated warning signs).

22 Howeth Invs., Inc. v. City of Hedwig Vill., 259 S.W.3d 877, 901 (Tex. 

App.—Houston [1st Dist.] 2008, pet. denied). 

23 Texas courts have relied on this fact. See Friedman, 731 S.W.2d at 576 

(Cohen, J., concurring) (stating that “the danger from foul balls at baseball

games is so well known that it may be judicially noticed” even when it is 

first time spectator attends baseball game); Keys, 150 S.W.2d at 371 (stating 

that it is matter of “universal common knowledge” that “a flying baseball is 

capable of inflicting painful, sometimes serious and even fatal, injury” and 

“may fly in any direction and strike any bystander not on the alert to evade 

it.”). Many other courts have relied on this fact, as well. Benejam, 635 

N.W.2d at 222, 223 (“[B]aseball patrons generally want to be involved with 

the game in an intimate way and are even hoping that they will come in 
12

wayward balls.24 Third, the risk of injury from a ball is considered an inherent risk 

of the game.25 Fourth, most fans who attend the games are aware that objects may 

 

contact with some projectile from the field (in the form of a souvenir 

baseball). In other words, spectators know about the risk of being in the 

stands and, in fact, welcome that risk to a certain extent. . . . [M]ost 

spectators . . . prefer to be as ‘close to the play’ as possible, without an 

insulating and obstructive screen between them and the action.”); Rudnick v. 

Golden W. Broadcasters, 202 Cal. Rptr. 900, 905 (Cal. Ct. App. 1984)

(“[T]he chance to apprehend a misdirected baseball is as much a part of the 

game as the seventh inning stretch or peanuts and Cracker Jack.”); Akins,

424 N.E.2d at 533 (noting that “many spectators prefer to sit where their 

view of the game is unobstructed by fences or protective netting and the 

proprietor of a ball park has a legitimate interest in catering to these 

desires”); Maisonave, 881 A.2d at 706 (“‘[M]ost spectators prefer to sit 

where they can have an unobstructed view of the game and are willing to 

expose themselves to the risks posed by flying balls . . . to obtain that view.’ 

[F]ans actively engage in the game by trying to catch foul balls. Fans often 

greet out-of-play baseballs with cheers as they dive over walls and rows of 

seats, risking life and limb, for the thrill of triumphantly claiming the errant 

ball.”) (quoting Schneider v. Am. Hockey & Ice Skating Ctr., Inc., 777 A.2d 

380, 380 (N.J. App. Div. 2001), cert. denied, 788 A.2d 772 (N.J. 2001)); 

Wells v. Minneapolis Baseball & Athletic Ass’n, 142 N.W. 706, 708 (Minn. 

1913) (stating that “a large part of those who attend prefer to sit where no 

screen obscures the view” and stadium owners have “a right to cater” to 

spectators who desire to sit in area without screens).

24 Benejam, 635 N.W.2d at 223 (observing that “a smaller number of 

spectators prefer the protection offered by screening”).

25 Edward C., 241 P.3d at 1098 (stating that limited duty is appropriate when 

“a risk of physical injury is inherent to the activity”); Wells, 142 N.W. at 

707–08 (stating that baseball “is necessarily accompanied with some risk to 

the spectators. . . . But the perils are not so imminent that due care on the 

part of the management requires all the spectators to be screened in.”); 

Erickson, 65 S.E.2d at 141 (stating that duty of baseball park operator to 

exercise reasonable care to protect its patrons does not extend to “the 

common hazards incident to the game”); Brown v. San Francisco Ball Club,
13

leave the playing field with the potential to cause injury.26 As summarized by the 

Michigan Court of Appeals,

The limited duty rule comports more nearly with that everyday reality 

than would usual invitor-invitee principles of liability. While 

requiring that protected seats be provided for those who want them, 

the limited duty rule leaves the baseball stadium owner free, without 

fear of liability, to accommodate the majority of fans who prefer 

unobstructed and uninsulated contact with the game. . . . [T]he limited 

 

222 P.2d 19, 20 (Cal. Ct. App. 1950) (stating that baseball spectator 

“subjects himself to certain risks necessarily and usually incident to and 

inherent in the game”); Benejam, 635 N.W.2d at 222 (“The logic of these 

precedents is that there is an inherent risk of objects leaving the playing field 

that people know about when they attend baseball games.”). 

26 Edward C., 241 P.3d at 1098 (recognizing virtual “impossibility of playing 

the sport of baseball without projectiles leaving the field of play”); Benejam, 

635 N.W.2d at 223 (observing that “as a natural result of play, objects may 

leave the field with the potential of causing injury in the stands”); Bellezzo, 

851 P.2d at 851 (stating that “the danger of being struck by a foul ball was 

open and obvious”); Maisonave, 881 A.2d at 706 (stating that “‘[w]hile 

watching the game, either seated or standing in an unprotected area, 

spectators reasonably may be expected to pay attention and to look out for 

their own safety.’ It is the well-understood nature of the game that batted or 

thrown baseballs can land in the stands.”) (quoting with approval Maisonave

v. The Newark Bears, Gourmet Servs., 852 A.2d 233, 236 (N.J. App. Div. 

2004)); Brown, 222 P.2d at 20 (stating that risk of injury from foul ball is 

“obvious” and that when spectator “voluntarily enter[s] into the sport as a 

spectator he knowingly accepts the reasonable risks and hazards inherent in 

and incident to the game”); Murphy v. Steeplechase Amusement Co., 166 

N.E. 173, 174 (N.Y. 1929) (Cardozo, J.) (observing that spectator at ball 

game accepts “the dangers that inhere in it,” including “the chance of contact 

with the ball”); Quinn, 46 P.2d at 146 (recognizing that “one of the natural 

risks assumed by spectators attending professional games is that of being 

struck by batted or thrown balls.”).
14

duty doctrine represents a good accommodation of the interests that

must be balanced in this case . . . .27

 27 Benejam, 635 N.W.2d at 224–25; see also Edward C., 241 P.3d at 1098 

(stating that rule must “balance[] the competing interests of spectators who 

want full protection by requiring screening . . . and allowing other spectators 

to participate in the game by catching souvenirs that leave the field of play” 

as well as “the practical interest of watching a sport that encourages players 

to strike a ball beyond the field of play in fair ball territory to score runs with 

the safety and entertainment interests of the spectators in catching such 

balls.”); Maisonave, 881 A.2d at 702 (noting that rule should “accommodate 

the interests of both fans and owners” and concluding that “the limited duty 

rule fairly balances the practical and economic interests of owners and 

operators with the safety and entertainment interests of the fans”); Benejam, 

635 N.W.2d at 223, 224 (noting that most spectators prefer to be as “‘close 

to the play’ as possible, without an insulating and obstructive screen 

between them and the action” and the limited duty under the baseball rule is 

based in part “on the desires of spectators” who can demand protected 

seating); Lawson By & Through Lawson, 901 P.2d at 1015 (“We are 

persuaded that the policy and rationale of the majority rule are sound. The 

majority rule insures that those spectators desiring protection from foul balls 

will be accommodated and that seats in the most dangerous area of the 

stadium will be safe. At the same time, the majority rule recognizes baseball 

tradition and spectator preference by not requiring owners to screen the 

entire stadium.”). In balancing these interests, the New Jersey Supreme 

Court stated:

[W]e are not prepared to say that the [baseball] rule’s time has 

come and passed. It would be unfair to hold owners and 

operators liable for injuries to spectators in the stands when the 

potential danger of fly balls is an inherent, expected, and even 

desired part of the baseball fan’s experience. Moreover, owners 

and operators would face undue hardship if forced to guarantee 

protection for all fans in the stands from every fly ball.

Maisonave, 881 A.2d at 706–07.
15

Admittedly, the Martinezes identify other interests that cut against the limited-duty 

rule: considerations of human safety (which are incorporated into traditional 

premises liability standards) and equal treatment of all premises owners (as 

opposed to a carved-out rule for stadium owners).

28 But given the strong 

presumption that exists in favor of following precedent and the policy 

considerations supporting the baseball rule, we decline to balance these interests 

anew and conclude that we should continue to follow our precedent.29

2. The baseball rule applies equally to the Martinezes’ claims of negligence 

and premises liability

The Martinezes base their claims on negligence and premises liability. The 

elements of a negligence cause of action are the existence of a duty, a breach of 

that duty, and damages proximately caused by the breach.30 Premises liability is a 

special form of negligence where the duty owed to the plaintiff depends upon the 

status of the plaintiff—such as the status of an invitee—at the time the incident 

 28 We also note the absence of any evidence that the unprotected bleacher seats 

pose an unduly high risk of injury from flying balls. Cf. Sciarrotta, 944 A.2d 

at 636.

29 The Martinezes do not ask us to limit the baseball rule to seated fans. At 

least one other jurisdiction has rejected a possible distinction between seated 

and unseated fans. See Maisonave, 881 A.2d at 707 (stating that baseball 

rule protects from liability those who are hit by baseball in stands, which 

“includes the stairs that fans ascend and descend to access their seats in the 

stands”).

30 W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
16

occurred.31 Thus, in the usual case, the duty analyses for negligence and premises 

liability claims are closely related but distinct.

32

In a case where the baseball rule applies, however, the limited duty of the 

stadium owner is the same regardless of whether the plaintiff’s cause of action 

sounds in negligence or premises liability.33 Therefore, when the uncontroverted 

summary-judgment evidence shows that the stadium owner has satisfied its limited 

duty to provide adequately screened seats for all those desiring them, there is no 

issue of material fact as to whether the stadium owner fulfilled its limited duty and 

the trial court may grant summary judgment on both negligence and premises 

liability claims.

34

 31 Id.

32 Id.; see also Koch Refining Co. v. Chapa, 11 S.W.3d 153, 156 n.3 (Tex. 

1999) (per curiam) (“A premises owner may be liable for two types of 

negligence in failing to keep the premises safe: 1) that arising from a 

premises defect, and 2) that arising from an activity on the premises.”).

33 See Friedman, 731 S.W.2d at 575 (“The stadium owner’s duty is to provide 

‘adequately screened seats’ for all those desiring them.”); see also Turner, 

180 P.3d at 1176 (“[T]he limited duty rule establishes the totality of the duty 

owed by baseball stadium owners and operators to protect spectators from 

foul balls within the confines of the stadium.”).

34 See Dent, 764 S.W.2d at 346.
17

3. The Astros demonstrated its compliance with its limited duty

a. The Astros’ summary-judgment evidence demonstrated that it 

provided adequately screened seats

The Martinezes contend that Friedman requires the stadium owner35 to 

prove the adequacy of both the quality of the screens and the quantity of the seats 

protected by those screens. They argue that fact issues exist regarding both. The 

Astros contend that Friedman only requires proof of an adequate number of seats 

and that it proved that the stadium had an adequate number of seats. In Friedman, 

we declared that a stadium owner owes a duty to “provide[] ‘adequately screened 

seats’ for all those desiring them.”36

 35 Throughout this opinion we refer to the stadium owner’s duties. The same 

duties (and limitations) apply to a stadium operator.

36 Friedman, 731 S.W.2d at 574 (quoting McNiel, 268 S.W.2d at 246). The 

breadth of the limited duty to provide screening is broader in McNeil and 

Friedman than in Keys v. Alamo City Baseball Co., 150 S.W.2d 368 (Tex. 

Civ. App.—San Antonio 1941, no writ). Keys states that there is no duty to 

provide screens “for all who may apply for them.” 150 S.W.2d at 370–71. 

Rather, the stadium owner’s duty to provide screened seats “for as many as 

may be reasonably expected to call for them on any ordinary occasion.” Id. 

at 371. McNeil and Friedman do not acknowledge the difference in the two 

rules, discuss the rule stated in Keys, or discuss the rationale for their 

broader rule, although Friedman did, in dicta, emphasize the word “all” in 

light of evidence that there were seats available behind home plate and that 

the fan did not elect to sit there. 731 S.W.2d at 574. A number of other 

jurisdictions follow the rule as stated by Keys. See, e.g., Erickson, 65 S.E.2d 

at 141 (holding that stadium owner should provide sufficient number of 

screened seats “to accommodate as many patrons as may reasonably be 

expected to call for them on ordinary occasions.”); Lawson By & Through 

Lawson, 901 P.2d at 1015 (holding that stadium owner “had a duty to screen 
18

It is unnecessary for us to determine whether the Astros proved that the 

quality and quantity of the screened seats were adequate because, first, the quality 

of the existent screens was not a factor in causing Shirley Martinez’s injuries and, 

second, the Martinezes never requested screened seating.

On the quality of the screens, the Martinezes suggest that the requirement of 

“adequate” seats refers to the quality of the screen, and that the screen provided by 

the Astros behind home plate was inadequate in quality because it is a vertical 

screen that does not provide protection for fly balls that are hit over the top of the 

screen. We are not aware of any Texas court having considered what type of screen 

design provides adequate protection for those sitting behind it. We note that the 

 

the area behind home plate and to provide screened seats to as many 

spectators as would normally request such seats on an ordinary occasion.”); 

Leek v. Tacoma Baseball Club, 229 P.2d 329, 330 (Wash. 1951) (“There is 

no obligation to screen all such seats, however, and the proprietor’s duty is 

fulfilled when screened seats are provided for as many as may reasonably be 

expected to call for them on any ordinary occasion.”); Quinn, 46 P.2d at 

146–47 (stating that stadium owner is not required to provide screened seats 

for all requesting them; rather, owner’s duty is to provide screened seats “for 

as many as may be reasonably expected to call for them on any ordinary 

occasion” because even when screen seats are unavailable fans may refuse to 

accept unprotected seat and demand return of admission); Rudnick, 202 Cal.

Rptr. at 901–02 (finding duty to provide screened seats to as many as would 

reasonably request such seats irrespective of owner’s decision to screen most 

dangerous area).
19

Washington Supreme Court and a North Carolina appellate court have rejected a 

rule requiring a horizontal or overhead screen.37

We need not decide this legal issue because of the facts here: Martinez was 

not sitting behind home plate nor was the fly ball hit behind home plate; rather, the 

fly ball was a home run ball hit into the bleachers. For the area where the

Martinezes were seated, the quality of the screen is simply not at issue because no 

screen was erected to protect the area where the ball landed.

On the number of seats, the Martinezes argue that the trial court erred in 

granting summary judgment because the Astros did not present evidence that any 

of its screened seats were available to Martinez and did not show that the screened 

area “was sufficient for a reasonable public demand.” The Astros did not present 

any evidence regarding the number of requests it typically receives for screened 

seats, the sufficiency of the number of protected seats to fill the typical requests for 

screened seats, or the frequency with which it has to turn away or provide refunds 

to customers because of the unavailability of screened seating. Nor did it present 

 37 Hobby v. City of Durham, 569 S.E.2d 1, 2 (N.C. Ct. App. 2002) (holding 

that provision of vertical net, and not horizontal overhead net, was sufficient 

to discharge stadium owner’s duty); Leek, 229 P.2d at 331–32 (stating that it 

is “not uncommon for foul balls to drop over the vertical screen into this 

section of the stand,” that the record did not demonstrate that “foul balls of 

this kind cause serious injuries with sufficient frequency to be considered an 

unreasonable risk,” that foul balls going over a vertical screen “take longer 

to reach the seats, and are therefore easier to dodge or catch,” and therefore 

stadium owner did not owe “a duty to provide overhead protection”).
20

any evidence regarding whether any seats in the screened area were available to the 

public on the day in question. The Astros’ appellate brief contends that spectators 

are also protected in the upper deck because foul balls “seldom, if ever, reach” 

there, but it offered no evidence on how often fly balls reach various areas of the 

upper deck. Instead, through the affidavit of the Astros’ Senior Director of Risk 

Management, the Astros proved that almost one-eighth of the seats were shielded 

by a screen located behind home plate. It also submitted photographs depicting that 

the screen extended from near the part of the first base dugout closest to home 

plate to near the part of the third base dugout closest to home plate. The Martinezes 

do not contend that they requested but were denied a screened seat. On the 

contrary, the evidence establishes that screened seats were available for purchase 

for the game in question. Therefore, the Astros demonstrated the availability of 

screened seats for the Martinezes.

b. The summary-judgment evidence demonstrates that the Astros did 

not distract Shirley Martinez

On appeal, the Martinezes contend that that a second duty exists: a stadium 

owner cannot “actively divert[ a spectator’s] attention” from the action on the field.

According to the Martinezes, the Astros breached such a duty when an usher 

“instructed [Shirley] Martinez to take certain actions that the usher knew would 

require Martinez to turn her back to the playing field. The Astros should not hide 

behind [a] rule of limited duty that imposes an unyielding obligation upon the 
21

spectator to pay attention at all times while at the same time the Astros distract the 

spectator.”

We are not aware of any Texas court decision considering whether stadium 

owners and operators have a duty, apart from their limited duty to provide 

adequate screened seating, to not distract spectators. The New Mexico Supreme 

Court recently adopted a rule that includes an inquiry into whether the stadium 

owner took action to increase the risk to a spectator beyond that inherent in 

attending a baseball game.38 On the other hand, the New Jersey Supreme Court 

recently rejected such a rule, stating that “the limited duty rule imposed on a sports 

venue owner or operator applies when a spectator is located in the stands—and not 

 38 Edward C., 241 P.3d at 1097–98 (rejecting baseball rule that limits screened 

area to area behind home plate provided that screening will provide adequate 

protection for as many spectators as may reasonably be expected to desire 

such seating in course of ordinary game but adopting rule of limited duty 

“given the unique nature of the[] relationship [between stadium owners and 

fans], as well as the policy concerns implicated by this relationship” by 

requiring spectators to “exercise ordinary care to protect themselves from 

the inherent risk of being hit” by ball and owner to “exercise ordinary care 

not to increase that inherent risk”). Our sister court has noted that the 

inherent-risk doctrine is distinguishable from the assumption-of-risk 

doctrine. Chrismon v. Brown, 246 S.W.3d 102, 111 n.9 (Tex. App.—

Houston [14th Dist.] 2007, no pet.) (“[T]here is a meaningful distinction 

between implied assumption of the risk—an affirmative defense that applies 

even if the defendant is negligent—and the inherent-risk doctrine, which is 

not an affirmative defense but a legal standard for determining whether a 

sports participant owes a duty at all.”).
22

based on the arbitrary circumstances of whether the spectator is otherwise 

distracted.”39

The specific issue of whether a stadium owner should protect a spectator 

from the risk of injury from a fly ball while walking in an aisle was addressed by a 

New York court of appeals forty years ago.40 In that case, the spectator was struck 

while being conducted by an usher through an aisle leading to his reserved seat in 

an unscreened section of the stadium. The court, citing earlier New York cases and 

cases from other jurisdictions, held that the baseball rule applies equally “absent 

any extraordinary circumstance,” when the spectator “is in the aisle and moving to 

or from his seat.”41 The court reasoned that “[i]f plaintiff is chargeable with 

knowledge of the risk of injury from a batted ball while he is in his unprotected 

seat, there would seem no logical basis for considering that he may reasonably be 

less aware of the same danger in the aisle by which he approaches his seat.”42

In this case, we need not decide the legal issue of whether the Astros, 

besides having a limited duty to provide adequate screening, also have a duty to 

not distract spectators. Even if such a duty exists, the summary-judgment evidence

 39 Sciarrotta, 944 A.2d at 635.

40 Baker v. Topping, 222 N.Y.S.2d 658 (N.Y. App. Div. 1961).

41 Id. at 660.

42 Id. at 661.
23

demonstrates that the Astros did not distract Shirley Martinez at the time in 

question. Shirley Martinez’s affidavit states:

. . . After entering the indoor section of the baseball park and 

locating the section of seating assigned to us by the Astros, I 

approached the section of seating and was stopped by an usher who 

informed me that I was not allowed to enter the seating area of section 

153 with a stroller. The usher informed me that I must take the stroller 

to a different section of the ballpark, on the opposite end of the 

ballpark. The usher offered no further assistance.

The usher allowed me to leave the stroller at the top of section 

153 while I seated the four older children. I descended the stairs while 

carrying the baby in my arms. I seated the other four children and left 

them in the care of another responsible adult with the 72nd Brigade 

group. I immediately began ascending the stairs with the baby in my 

arms. My intent was to comply with the usher’s instructions and 

return to take it to the section of the ballpark instructed by the usher.

As I began my way up the stairs of section 153, and while my 

attention was focused on climbing the stairs to comply with the 

usher’s instructions and retrieve the stroller, I heard someone yell a 

warning that a fly ball was coming toward me. I reacted by shielding 

the baby I was holding with my arms and body, but was struck in the 

face by the ball. I held onto the baby and fell to the ground.

Although this evidence demonstrates that Shirley Martinez was ascending the 

stairs in accordance with an Astros employee’s request, it does not demonstrate 

that the Astros or an Astros agent distracted her at the time that the ball struck her.

The facts here are quite unlike those in a California case where a fan was distracted 

by the antics of the team mascot and the court held that the stadium owner “had a 

duty not to increase the inherent risks to which spectators at professional baseball 
24

games are regularly exposed.”43 Rather, the summary-judgment evidence shows 

that Martinez was simply walking up the aisle, a task that spectators perform

frequently during a professional baseball game.

Accordingly, we conclude that the baseball rule applies to the facts 

presented here. On both negligence and premises liability, the Astros met its 

summary-judgment burden to prove that it complied with its limited duty to 

provide an adequate number of screened seats. Additionally, regardless of whether 

the Astros had an additional duty not to distract spectators, the summary-judgment 

evidence demonstrates that the Astros did not distract Martinez and thereby 

increase her risk of injury.

Duty to Inform of Availability of Screened Seats

The Martinezes also contend that the Astros failed to “inform or otherwise 

make [Shirley] Martinez or other customers aware of the existence of screened 

seating” and that the availability of those seats is “not discernible” until a spectator 

arrives at the stadium. Implicit within this contention is an assertion that the Astros 

had a duty to advise customers of the existence of such seats. We conclude that the 

 43 Lowe v. Cal. League of Prof’l Baseball, 65 Cal. Rptr.2d 105, 106 (Cal. Ct. 

App. 1997) (emphasis in original); see also id. at 111 (modifying baseball 

rule to hold that “the key inquiry [in baseball spectator injury cases] is 

whether the risk which led to plaintiff’s injury involved some feature or 

aspect of the game which is inevitable or unavoidable in the actual playing 

of the game”).
25

Astros did not have any duty to provide information regarding this well-known 

condition of professional baseball parks.

The Fort Worth Court of Appeals considered and rejected this same 

argument in Dent v. Texas Rangers, Ltd., 764 S.W.2d 345, 346 (Tex. App.—Fort

Worth 1989, writ denied). In that case, the spectator invited the court “to impose an 

additional duty on the stadium owner of informing spectators of the availability of 

the screened seats.”44 The court declined to do so, stating that “[t]he availability of 

screened seats is apparent and discernible to all who attend.”45 We agree. As 

Martinez acknowledged in her affidavit, the screened seating area was visible upon 

entering the stadium and looking across the field from an aisle.

Conclusion

We decline to overrule our court’s precedent in Friedman which adheres to 

established Texas law adopting the baseball rule. The summary-judgment evidence 

demonstrated that the Astros complied with its limited duty by providing 

adequately screened seats. The summary-judgment evidence also demonstrated 

that the Astros did not distract Martinez. Accordingly, we affirm the trial court’s 

order granting summary judgment. All outstanding motions are overruled as moot.

 44 Dent, 764 S.W.2d at 346.

45 Id.; cf. Keys, 150 S.W.2d at 371 (holding that it is unnecessary to “warn[] 

each person entering the park that he or she would be imperiled by vagrant 

baseballs”).
26

Harvey Brown

Justice 

Panel consists of Chief Justice Radack and Justices Higley and Brown.