Filed 2/18/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

SUMMER J., a Minor, etc.,

Plaintiff and Appellant,

v.

UNITED STATES BASEBALL 

FEDERATION,

Defendant and Respondent.

 B282414 and B285029

 (Los Angeles County

 Super. Ct. No. BC554468)

APPEALS from a judgment and postjudgment order of the 

Superior Court of Los Angeles County, Ross M. Klein, Judge. 

Reversed and remanded with directions. 

Steven B. Stevens, Professional Law Corp., Steven B. 

Stevens; The Law Offices of Thomas M. Dempsey, Thomas M. 

Dempsey; Selarz Law Corp. and Daniel E. Selarz for Plaintiff and 

Appellant.

Manning & Kass, Ellrod, Ramirez, Trester, Sevan Gobel 

and Ladell Hulet Muhlestein for Defendant and Respondent 

United States Baseball Federation. 

_______________________
2

Writing for the New York Court of Appeals to reverse a 

judgment in favor of a young man injured while riding an 

attraction at the Coney Island amusement park, then-Chief 

Judge Benjamin Cardozo applied the common law doctrine 

volenti non fit injuria (“to a willing person, injury is not done”) 

and explained, “One who takes part in such a sport accepts the 

dangers that inhere in it so far as they are obvious and necessary, 

just as a fencer accepts the risk of a thrust by his antagonist or a 

spectator at a ball game the chance of contact with the ball.” 

(Murphy v. Steeplechase Amusement Co. (1929) 250 N.Y. 479, 

482-483 [166 N.E. 173].)1 Chief Judge Cardozo’s embrace of a 

baseball fan’s fundamental responsibility to protect himself or 

herself from injury from a foul ball—often referred to as the 

“Baseball Rule”2—was consistent with the state of the law 

throughout the country. The California Supreme Court in Quinn 

v. Recreation Park Assn. (1935) 3 Cal.2d 725, although holding a 

stadium operator had a limited duty to provide a screened area at 

the ballpark, nonetheless observed, “‘[I]t has been generally held 

1 Chief Judge Cardozo famously went on to advise, “The 

timorous may stay at home.” (Murphy v. Steeplechase 

Amusement Co., supra, 250 N.Y. at p. 483; see Kaufman, Cardozo 

at 100 (2012) 13 J. App.Prac. & Process 183, 187.) 

2

See, e.g., Grow & Flagel, The Faulty Law and Economics of 

the “Baseball Rule” (2018) 60 Wm. & Mary L.Rev. 59, 63-64 

(“[u]nder what has commonly become known as the ‘Baseball 

Rule,’ courts for over a century have consistently held that 

professional baseball teams are not liable for injuries sustained 

by fans by bats or balls leaving the field of play, so long as the 

teams have taken minimal precautions to protect their spectators 

from harm”). 
3

that one of the natural risks assumed by spectators attending 

professional games is that of being struck by batted or thrown 

balls; that the management is not required, nor does it undertake 

to insure patrons against injury from such source.’” (Id. at 

p. 729.) More than 60 years later, the court of appeal in Lowe v. 

California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 

123 noted, “[F]oul balls hit into the spectators’ area clearly create 

a risk of injury. If such foul balls were to be eliminated, it would 

be impossible to play the game. Thus, foul balls represent an 

inherent risk to spectators attending baseball games. . . . [S]uch 

risk is assumed.”3 (See generally Neinstein v. Los Angeles 

Dodgers, Inc. (1986) 185 Cal.App.3d 176, 181 [“it is not the role of 

the courts to effect a wholesale remodeling of a revered American 

institution through application of the tort law”].)

In sharp contrast to this judicial view of fans’

accountability for their own protection from balls hit into the 

stands, at Major League Baseball’s 2019 winter meetings

Commissioner Rob Manfred announced that all 30 major league 

teams will expand the protective netting in their stadiums 

“substantially beyond the end of the dugout” for the 2020 season

and that seven or eight stadiums will run netting all the way to 

the foul poles. (Young & Cosgrove, Baseball commissioner says 

all 30 MLB teams will expand protective netting for 2020 season 

3

The issue in Lowe was whether the distraction caused by a 

minor league team’s mascot increased the inherent risk of a 

spectator being hit by a foul ball. Reversing the trial court’s 

order granting summary judgment in favor of defendants, the 

court of appeal held that was “an issue of fact to be resolved at 

trial.” (Lowe v. California League of Prof. Baseball, supra, 

56 Cal.App.4th at p. 123.)
4

(Dec. 11, 2019) <https://www.cnbc.com/2019/12/11/baseballcommissioner-says-all-30-mlb-teams-to-expand-protectivenetting.html> [as of Feb. 18, 2020], archived at <perma.cc/66dg72DB>.) Extended netting is also being installed in many minor 

league ballparks. (Reichard, All MLB Ballparks Will Feature 

Extended Netting in 2020, Ballpark Digest (Dec. 11, 2019) 

<https://ballparkdigest.com/2019/12/11/all-mlb-ballparks-willfeature-extended-netting-in-2020/> [as of Feb. 18, 2020], archived 

at <perma.cc/MJQ7-9HPT>.)

To what extent should this modern, practical view of the 

importance of protective netting shape the legal system’s 

understanding of the risks inherent in attending a baseball game

and the responsibility of stadium owners to minimize spectator 

injuries from foul balls? Phrased more specifically in terms of 

California tort law and the doctrine of primary assumption of 

risk, would the provision of adequate protective netting in a

perceived zone of danger behind home plate (or for field-level 

seating along the first- and third-base lines between home plate 

and the dugouts) increase safety and minimize the risk of injury 

to spectators without altering the nature of baseball as it is 

played today in professional and college ballparks? We conclude 

it would and, accordingly, reverse the judgment entered in favor 

of the United States Baseball Federation (US Baseball) after the 

trial court sustained without leave to amend US Baseball’s

demurrer to the first amended complaint of 12-year-old 

Summer J., who was seriously injured by a line drive foul ball 

while watching a baseball game sponsored by US Baseball.

FACTUAL AND PROCEDURAL BACKGROUND

Summer attended US Baseball’s national team trials on 

August 17, 2014 at Blair Field, located on the campus of 
5

California State University, Long Beach (CSULB), a stadium 

jointly owned and maintained by the City of Long Beach and 

CSULB. Summer was seated in the grandstand or “spectator 

bleachers,” an area of the stadium without a protective screen or 

netting. When she was “momentarily distracted from the field of 

play,” Summer was struck in the face by a line drive foul ball, 

which caused serious injury, including damage to her optic nerve. 

Through her guardian ad litem, Lee J., Summer sued the 

City of Long Beach, CSULB and US Baseball, asserting in her

original and first amended complaints causes of action for 

negligence and premises liability.4 As to US Baseball, Summer 

alleged it sponsored the game at which she was injured and 

controlled the stadium on that day. She further alleged 

inadequate protective netting was provided for spectators at 

Blair Field “in the perceived zone of danger behind home plate.” 

The presence of some limited netting at the stadium gave 

Summer a false sense of security that watching the game in a 

seat beyond this protected area would be safe. Summer further 

alleged US Baseball and the other defendants were aware of the 

inadequate nature of the netting, yet failed to provide any 

warnings regarding the danger of being struck by a batted ball.

US Baseball demurred to the first amended complaint, 

contending the lawsuit was barred under the primary 

assumption of risk doctrine. US Baseball also argued the alleged 

dangerous condition at the stadium was open and obvious, 

relieving it of any duty to warn or correct the condition it might 

otherwise have. 

4

The City of Long Beach and CSULB are not parties to this 

appeal.
6

While the demurrer was pending, Summer moved for leave 

to file a second amended complaint.5She argued she could 

provide further factual allegations regarding dangers at Blair 

Field from hard-hit foul balls that were not inherent risks in the 

sport of baseball, including the failure to install protective 

netting for field-level seating along the first- and third-base lines 

between the batter’s box and the dugouts and the configuration of 

seating that brought spectators in the front rows closer to the 

field of play than 70 feet as recommended for college stadiums, as 

well as the provision of enhanced Wi-Fi to encourage use of 

mobile devices and brightly colored advertising on the outfield 

fences that distracted fans from the activity on the field. 

After briefing and oral argument the court sustained 

US Baseball’s demurrer without leave to amend, ruling 

Summer’s claims were barred under the primary assumption of 

risk doctrine and the proposed amendments would not cure the 

defects in the pleading. 

Judgment, including an award of costs in an amount to be 

determined, was entered in favor of US Baseball on February 28, 

2017. US Baseball filed its memorandum of costs on March 9, 

2017, requesting a total of $4,902.24. Summer moved to tax 

costs. The trial court denied the motion on June 30, 2017. 

Summer filed timely notices of appeal from the judgment on 

May 1, 2017 (B282414) and from the postjudgment order denying 

her motion to tax costs on August 28, 2017 (B285029).

5

The additional allegations in the initial iteration of the 

proposed second amended complaint were primarily directed to 

the City of Long Beach and CSULB. In a revised version filed 

shortly after she had filed her opposition to US Baseball’s 

demurrer, Summer focused on US Baseball. 
7

DISCUSSION

1. Standard of Review

“In reviewing an order sustaining a demurrer, we examine 

the operative complaint de novo to determine whether it alleges 

facts sufficient to state a cause of action under any legal theory.” 

(T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 

162.) “In making this determination, we must accept the facts 

pleaded as true and give the complaint a reasonable 

interpretation.” (Mathews v. Becerra (2019) 8 Cal.5th 756, 762.) 

“If the demurrer was sustained without leave to amend, we 

consider whether there is a ‘reasonable possibility’ that the defect 

in the complaint could be cured by amendment.” (King v. 

CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050.) The burden is 

on the plaintiff to prove that amendment could cure the defect. 

(Ibid.)

Application of the primary assumption of risk doctrine is 

also a question of law subject to de novo review. (Kahn v. East 

Side Union High School Dist. (2003) 31 Cal.4th 990, 1003-1004 

(Kahn); Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 

23; see Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 

1072, 1083 [“the legal question of duty, and specifically the 

question of whether a particular risk is an inherent part of a 

sport, ‘is necessarily reached from the common knowledge of 

judges, and not the opinions of experts’”]; Staten v. Superior 

Court (1996) 45 Cal.App.4th 1628, 1635 [“[t]he determinant of 

duty, ‘inherent risk,’ is to be decided solely as a question of law 

and based on the general characteristics of the sport activity and 

the parties’ relationship to it”]; see generally Vasilenko v. Grace 

Family Church (2017) 3 Cal.5th 1077, 1083 [“[t]he existence of a 

duty is a question of law, which we review de novo”].) In deciding 
8

the issue of inherent risk for purposes of the primary assumption 

of risk doctrine, judges and justices “may consider not only their 

own or common experience with the recreational activity involved 

but may also consult case law, other published materials, and 

documentary evidence introduced by the parties on a motion for 

summary judgment.” (Nalwa v. Cedar Fair, L.P. (2012) 

55 Cal.4th 1148, 1158 (Nalwa); see Cabral v. Ralphs Grocery Co.

(2011) 51 Cal.4th 764, 775-776, fn. 5 [court may consider 

published material on legal questions “as an aid to the court’s 

work of interpreting, explaining and forming the law” without 

formally taking judicial notice of it].) 

2. Knight v. Jewett and Its Progeny: The Principles 

Governing the Primary Assumption of Risk Doctrine

In Knight v. Jewett (1992) 3 Cal.4th 296 (Knight), in a 

plurality decision written by Chief Justice George and 

subsequently accepted by other members of the Court except 

Justice Kennard (see, e.g., Shin v. Ahn (2007) 42 Cal.4th 482, 

491; id. at pp. 500-501 (conc. & dis. opn. of Kennard, J.)), the 

Supreme Court reformulated California’s assumption of risk 

doctrine and held, applying “primary assumption of risk” in a 

sports setting, the plaintiff is said to have assumed the particular 

risks inherent in a sport by choosing to participate and the 

defendant generally owes no duty to protect the plaintiff from 

those risks. “[A] court need not ask what risks a particular 

plaintiff subjectively knew of and chose to encounter, but instead 

must evaluate the fundamental nature of the sport and the 

defendant’s role in or relationship to that sport in order to 

determine whether the defendant owes a duty to protect a 
9

plaintiff from the particular risk of harm.” (Avila v. Citrus 

Community College Dist. (2006) 38 Cal.4th 148, 161 (Avila).)6

Although individuals generally owe a duty of care not to 

cause an unreasonable risk of harm to others (Civ. Code, § 1714, 

subd. (a)), when the primary assumption of risk doctrine applies, 

“operators, instructors and participants in the activity owe other 

participants only the duty not to act so as to increase the risk of 

injury over that inherent in the activity.” (Nalwa, supra, 

55 Cal.4th at p. 1154.)7 “The primary assumption of risk doctrine 

rests on a straightforward policy foundation: the need to avoid 

chilling vigorous participation in or sponsorship of recreational 

activities by imposing a tort duty to eliminate or reduce the risks 

6

“Secondary assumption of risk,” in contrast, “arises when 

the defendant still owes a duty of care, but the plaintiff 

knowingly encounters the risks attendant on the defendant’s 

breach of duty.” (Avila, supra, 38 Cal.4th at p. 161, fn. 6; 

see Knight, supra, 3 Cal.4th at p. 308; see also Gregory v. Cott

(2014) 59 Cal.4th 996, 1001 [“Since its reformulation in 

Knight . . . , California’s assumption of risk doctrine has taken 

two quite different forms. Primary assumption of risk is a 

complete bar to recovery. It applies when, as a matter of law, the 

defendant owes no duty to guard against a particular risk of 

harm. Secondary assumption of risk applies when the defendant 

does owe a duty, but the plaintiff has knowingly encountered a 

risk of injury caused by the defendant’s breach. Liability in such 

cases is adjudicated under the rules of comparative negligence”].) 

7

The Nalwa Court held the primary assumption of risk 

doctrine is not limited to activities classified as sports, but 

applies to any physical recreational activity that involves an 

inherent risk of injury, including, in the case then before it, 

bumper car rides at an amusement park. (Nalwa, supra, 

55 Cal.4th at pp. 1156-1157.)
10

of harm inherent in those activities. It operates on the premise 

that imposing such a legal duty ‘would work a basic alteration—

or cause abandonment’ of the activity.” (Id. at p. 1156.)

As applied to the potential liability of sports participants 

themselves, careless conduct alone is not enough; a participant 

owes no duty to protect a coparticipant from particular harms 

arising from ordinary or simple negligence. (Avila, supra, 

38 Cal.4th at p. 161; Knight, supra, 3 Cal.4th at pp. 308-309.) 

Rather, “coparticipants’ limited duty of care is to refrain from 

intentionally injuring one another or engaging in conduct that is 

‘so reckless as to be totally outside the range of the ordinary 

activity involved in the sport.’” (Shin v. Ahn, supra, 42 Cal.4th at 

pp. 489-490.) 

The Supreme Court, however, has repeatedly emphasized 

the question of duty in the recreational context depends not only 

on the nature of the activity but also on the “‘role of the 

defendant whose conduct is at issue in a given case.’” (Kahn, 

supra, 31 Cal.4th at p. 1004, quoting Knight, supra, 3 Cal.4th at 

p. 318.) “Duties with respect to the same risk may vary according 

to the role played by particular defendants involved in the sport.” 

(Kahn, at p. 1004; accord, Nalwa, supra, 55 Cal.4th at p. 1161 

[“[t]he scope of the duty owed to participants in active recreation 

. . . depends not only on the nature of the activity but also on the 

role of the defendant whose conduct is at issue”]; see Avila, supra, 

38 Cal.4th at p. 162 [“we have also noted in dicta that those

responsible for maintaining athletic facilities have a similar duty 

not to increase the inherent risks, albeit in the context of 

businesses selling recreational opportunities”].) Demonstrating

this distinction, the Court, first in Knight and then again in 

Kahn, explained a batter in baseball has no duty to avoid 
11

carelessly throwing a bat after hitting the ball—such conduct 

being an inherent risk of the sport—but “a stadium owner, 

because of his or her different relationship to the sport, may have 

a duty to take reasonable measures to protect spectators from 

carelessly thrown bats. For the stadium owner, reasonable steps 

may minimize the risk without altering the nature of the sport.” 

(Kahn, at p. 1004; see Knight, at p. 317.) Similarly, in Nalwa, 

although the Supreme Court held the operator of a bumper car 

ride had no duty to eliminate or minimize head-on bumping, a 

risk inherent in the activity, it also recognized the operator 

“might violate its ‘duty to use due care not to increase the risks to 

a participant over and above those inherent’ in the activity 

[citation] by failing to provide routine safety measures such as 

seat belts, functioning bumpers and appropriate speed 

control . . . .” (Nalwa, at p. 1163; see Hass v. RhodyCo 

Productions, supra, 26 Cal.App.5th at p. 38 [as both Knight and 

Nalwa teach, “[w]hile the operator or organizer of a recreational 

activity has no duty to decrease risks inherent to the sport, it does 

have a duty to reasonably minimize extrinsic risks so as not to 

unreasonably expose participants to an increased risk of harm”].)

The significance of the defendant’s role as the operator or 

organizer of the activity in defining the scope of its duty to an 

injured participant or bystander has been illustrated in a number 

of court of appeal decisions applying the primary assumption of 

risk doctrine. Thus, the inherent risk in baseball that a pitcher 

will be hit by a line drive does not preclude a determination that 

the design and use of a particular type of aluminum bat 

unreasonably increased the inherent risk of injury to the pitcher 

(see Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 

703, 715); the inherent risk in long-distance running of 
12

dehydration and hyponatremia does not mean the organizer of a 

marathon race had no duty to participants to arrange and 

conduct a reasonably safe event by providing sufficient water and 

electrolyte replacement drinks, which “‘minimize[d] the risks 

without altering the nature of the sport’” (Saffro v. Elite Racing, 

Inc. (2002) 98 Cal.App.4th 173, 175, 179; see Hass v. RhodyCo 

Productions, supra, 26 Cal.App.5th at pp. 38, 40 [inherent risk of 

cardiac arrest in long-distance running does not preclude finding 

race organizer had duty to provide emergency medical services]); 

and the inherent risk of being hit by a misguided golf shot does 

not prevent a finding the owner of a golf course unreasonably 

exposed golfers to that risk by its poor design of the course (see 

Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 

134-135;

8

see also Rosencrans v. Dover Images, Ltd., supra, 

192 Cal.App.4th at p. 1084 [owner of motocross track has duty to 

provide a system for signaling when riders have fallen to 

minimize risk of collisions].)

In Grotheer v. Escape Adventures, Inc. (2017)

14 Cal.App.5th 1283 the court held, under the primary 

assumption of risk doctrine, a hot air balloon company had no 

duty to protect its customers from crash landings caused by its 

8

The court in Morgan v. Fuji Country USA, Inc., supra, 

34 Cal.App.4th at page 134 explained, “[I]f the relationship 

between the parties was one of coparticipants, i.e., if the 

defendant here were the golfer who hit the errant ball . . . the 

defendant would have no liability towards Morgan because there 

is an inherent risk that the defendant would hit an errant ball. 

Morgan, however, is not suing the other player; he is suing the 

owner and operator of the golf course. [¶] Fuji, as owner and 

operator of the Castle Creek golf course owes a different duty to 

Morgan and other golfers.” 
13

pilot’s failure to safely manage the balloon’s descent (id. at 

p. 1298), but did have a duty to provide passengers instructions 

on safe landing procedures (id. at p. 1302). As our colleagues in 

Division Two of the Fourth District explained, “Safety is 

important, but so is the freedom to engage in recreation and 

challenge one’s limits. The primary assumption of risk doctrine 

balances these competing concerns by absolving operators of 

activities with inherent risks from an obligation to protect their 

customers from those risks. [¶] What the primary assumption of 

risk doctrine does not do, however, is absolve operators of any 

obligation to protect the safety of their customers. [Citation.] As 

a general rule, where an operator can take a measure that would 

increase safety and minimize the risk of the activity without also 

altering the nature of the activity, the operator is required to do 

so.” (Id. at pp. 1299-1300; see id. at p. 1301 [“the primary 

assumption of risk doctrine has never relieved an operator of its 

duty to take reasonable steps to minimize inherent risks without 

altering the nature of the activity”].)

3. Summer’s Proposed Second Amended Complaint States 

Causes of Action for Negligence and Premises Liability 

Against US Baseball

a. Summer has adequately alleged duty and breach

Summer alleged in her first amended complaint and 

proposed to allege in a second amended complaint that Blair 

Field had inadequate protective netting in the perceived zone of 

danger behind home plate (first amended complaint) or for fieldlevel seating along the first- and third-base lines between home 

plate and the dugouts (proposed second amended complaint). 

She also proposed to allege the danger to spectators of being hit 

by hard-hit foul balls in the high-risk, unscreened area at Blair 
14

Field had been increased by addition of box seats on the field 

level along the first- and third-base lines that were closer to the 

field of play than the distance recommended for college baseball 

stadiums by the National Collegiate Athletic Association (NCAA)

and creation of unnecessary distractions at the ball park 

including large, colorful advertising on the outfield wall and 

Wi-Fi ready access to encourage spectators to use their mobile 

devices during ballgames.

The trial court ruled these allegations were insufficient to 

state a cause of action for either negligence or premises liability 

because being hit by a foul ball is an inherent risk to spectators 

attending baseball games.

9

 The court reasoned, “The lack of 

netting is not an increase of inherent risks. Placing such netting 

might decrease the inherent risks of being hit by a foul ball, but 

that is not the inquiry.” 

9

“The elements of a negligence claim and a premises

liability claim are the same: a legal duty of care, breach of that

duty, and proximate cause resulting in injury. [Citations.] 

Premises liability ‘“is grounded in the possession of the premises 

and the attendant right to control and manage the premises”’; 

accordingly, ‘“mere possession with its attendant right to control 

conditions on the premises is a sufficient basis for the imposition 

of an affirmative duty to act.”’ [Citation.] But the duty arising

from possession and control of property is adherence to the same

standard of care that applies in negligence cases.” (Kesner v. 

Superior Court (2016) 1 Cal.5th 1132, 1158; see Alcaraz v. Vece

(1997) 14 Cal.4th 1149, 1156 [“‘[t]he proper test to be applied to

the liability of the possessor of land . . . is whether in the

management of his property he has acted as a reasonable man in

view of the probability of injury to others’”].)
15

On appeal US Baseball defends the ruling sustaining the 

demurrer without leave to amend with a similar argument, 

insisting in the opening paragraph of its brief, “[T]here is no legal 

duty to eliminate the inherent risk of being hit by a ball while 

watching a baseball game or to otherwise protect a spectator from 

being hit by a ball.” US Baseball reiterates this position later in 

its brief, arguing, “The Supreme Court has determined, as a 

matter of policy, that in the context of risks inherent in a sporting 

event, the duty to be imposed on sponsors is limited to a duty not 

to increase those risks. Primary assumption of risk precludes 

any other duty relative to the inherent risks of the sport.” 

These cramped descriptions by the trial court and 

US Baseball fundamentally misperceive the nature of 

US Baseball’s duty to fans attending the August 17, 2014 

national team trials.10 To be sure, foul balls are part of baseball. 

But as the entity responsible for operating Blair Field on that 

date,11 US Baseball had a duty not only to use due care not to 

10 That a stadium operator has no duty of any sort to protect 

spectators from foul balls, as argued by US Baseball, has never 

been the law in California. The Supreme Court in Quinn v. 

Recreation Park Assn., supra, 3 Cal.2d 725, more than 50 years 

before Knight, held stadium management had a duty of ordinary 

care that was satisfied by providing screened seats for as many 

spectators as may be reasonably expected to ask for those seats 

on any ordinary occasion. (Id. at p. 729.) 

11 In her first amended complaint Summer alleged 

US Baseball, as the sponsor of the baseball game and lessee of 

Blair Field, was responsible for maintaining spectator safety at 

the stadium on the day she was injured. In her proposed second

amended complaint Summer alleges US Baseball not only 

sponsored and organized the game at which she was injured but 
16

increase the risks to spectators inherent in the game but also to 

take reasonable measures that would increase safety and 

minimize those risks without altering the nature of the game. 

(See Kahn, supra, 31 Cal.4th at p. 1004 [“[f]or the stadium owner, 

reasonable steps may minimize the risk without altering the 

nature of the sport”]; Knight, supra, 3 Cal.4th at p. 317 [same];

Hass v. RhodyCo Productions, supra, 26 Cal.App.5th at pp. 38, 

40; Grotheer v. Escape Adventures, Inc., supra, 14 Cal.App.5th at 

pp. 1299-1301.) 

Installing protective netting down the first- and third-base 

lines at least to the dugouts would certainly increase safety and 

minimize risk to fans sitting in those areas. Would it alter the 

nature of the game? The court in Lowe v. California League of 

Prof. Baseball, supra, 56 Cal.App.4th 112, using language quoted 

by the trial court in its ruling, surmised it would: According to 

the court, if foul balls hit into the stands were eliminated, “it 

would be impossible to play the game.” (Id. at p. 123.) Other 

courts in past generations have agreed. (See, e.g., Neinstein v. 

Los Angeles Dodgers, Inc., supra, 185 Cal.App.3d at p. 181 

[protective screens would interfere with the players’ ability to 

reach into the spectator area to catch foul balls, “changing the 

very nature of the game itself”].) As discussed, however, 

also controlled Blair Field on the day of the game. Whether she 

can provide evidence to support those allegations is not now at 

issue. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 

19 Cal.4th 26, 47 [“‘[I]t is not the ordinary function of a demurrer 

to test the truth of the plaintiff’s allegations or the accuracy with 

which [s]he describes the defendant’s conduct . . . . ‘[T]he 

question of plaintiff’s ability to prove these allegations, or the 

possible difficulty in making such proof does not concern the 

reviewing court.”’”].) 
17

Commissioner Rob Manfred, the 30 major league baseball teams 

and many minor league teams disagree, all of them planning to 

expand protective netting in their stadiums substantially beyond 

the end of the dugouts for the upcoming 2020 season. (See 

generally Grow & Flagel, The Faulty Law and Economics of the 

“Baseball Rule” (2018) 60 Wm. & Mary L.Rev. 59, 85-98 

[discussing developments during the past 25 years that have 

increased the risk of being injured by foul balls at professional 

baseball games, including changes in stadium construction that 

bring spectators closer to the playing field, elevated velocity of 

pitched balls and increased distractions such as free Wi-Fi].) 

Allegations incorporating the views of experienced baseball 

professionals that extending protective netting along the firstand third-base lines will minimize the inherent risk of being 

injured by a foul ball without fundamentally changing the game

adequately identify an enforceable duty, at least for pleading 

purposes. (Cf. Nalwa, supra, 55 Cal.4th at p. 1163.) Accordingly,

Summer should be permitted to file an amended pleading 

alleging US Baseball had a duty to ensure there was adequate 

protective netting at Blair Field on August 17, 2014 and acted 

unreasonably, breaching that duty of care, by failing to provide 

netting on the field level along the first- and third-base lines at 

least from home plate to the dugouts. Whether the evidence will 

support those allegations, which will require an evaluation of the 

extent of the stadium’s existing netting, the proximity of 

unprotected seats to the playing field and the history of previous 

injuries in the seating area at issue, is not now before us. (See 

Mathews v. Becerra, supra, 8 Cal.5th at p. 762 [“surviving 

demurrer is no assurance of success on the merits once evidence 
18

is developed and considered. But we see no basis to prejudge 

what the evidence will show”].) 

b. Any issue of “open and obvious danger” cannot be 

resolved on demurrer

As an alternate basis for holding US Baseball liable for her 

injuries, Summer alleged US Baseball was aware of the 

inadequate nature of the netting at Blair Field, yet failed to warn 

her of the danger of being struck by a foul ball where she was 

seated. In its demurrer US Baseball contended that danger was

so obvious it had no duty to warn Summer of the risk. (See, e.g., 

Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 

14 Cal.App.5th 438, 447 [“‘Generally, if a danger is so obvious 

that a person could reasonably be expected to see it, the condition 

itself serves as a warning, and the landowner is under no further 

duty to remedy or warn of the condition.’ [Citation.] In that 

situation, owners and possessors of land are entitled to assume 

others will ‘perceive the obvious’ and take action to avoid the 

dangerous condition”]; see also Kinsman v. Unocal Corp. (2005) 

37 Cal.4th 659, 673.)

In response to US Baseball’s open-and-obvious defense, 

Summer argues (and, presumably, can allege in an amended 

pleading) (1) the presence of some protective netting misled her 

(as well as other reasonably prudent spectators) into believing 

the unprotected seats were outside the perceived zone of danger

with a high risk of injury from foul balls (in effect, an argument 

that the nature of the risk of injury had been concealed); and 

(2) because the protective netting behind home plate was 

unusually narrow and the spectator seats atypically close to the 

field of play, the dangers in the unprotected seating at Blair Field 

“are noticeable only if the spectator has expertise in 
19

mathematics, physics, human factors, or stadium design.” In 

light of these proposed allegations, whether the danger of injury 

from foul balls in unprotected seating was sufficiently obvious to 

relieve US Baseball of its duty to warn Summer of its existence 

is, at most, a question of fact that cannot be resolved on 

demurrer.12 (See Chance v. Lawry’s, Inc. (1962) 58 Cal.2d 368, 

374 [whether the danger created by an open planter box in a 

narrow foyer of a busy restaurant was sufficiently obvious to 

eliminate the owner’s duty to warn “was peculiarly a question of 

fact to be determined by the jury”]; Henderson v. McGill (1963) 

222 Cal.App.2d 256, 260 [“‘[i]t is ordinarily a question of fact 

whether in particular circumstances the duty of care owed to 

invitees was complied with, . . . whether the particular danger 

was obvious’”]; see also Donohue v. San Francisco Housing 

Authority (1993) 16 Cal.App.4th 658, 665 [“[T]he ‘obvious danger’

exception to a landowner’s ordinary duty of care is in reality a

recharacterization of the former assumption of the risk doctrine,

i.e., where the condition is so apparent that the plaintiff must

have realized the danger involved, he assumes the risk of injury

even if the defendant was negligent. [Citation.] . . . [T]his type of 

12 As the court of appeal noted in Morgan v. Fuji Country 

USA, Inc., supra, 34 Cal.App.4th at page 135, footnote 3, in 

response to the open-and-obvious argument of the golf course 

owner and operator, “Under Knight, the obviousness of a risk 

may, however, support a duty to provide protection, e.g., as in the 

case of a baseball stadium where the stadium operator may be 

obligated to provide protection for spectators in an area where 

the danger and risk of being hit by a thrown bat or errant ball is 

particularly obvious.” 
20

assumption of the risk has now been merged into comparative

negligence”].)13

DISPOSITION

The judgment and postjudgment order denying Summer’s 

motion to tax costs and awarding costs to US Baseball are 

reversed. The matter is remanded with directions to the trial 

court to vacate its order sustaining US Baseball’s demurrer 

without leave to amend and to enter a new order sustaining the 

demurrer and granting Summer leave to file a second amended 

complaint. Summer is to recover her costs on appeal. 

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.

13 Our reversal of the judgment in favor of US Baseball 

necessarily compels reversal of the award of costs to it as the 

prevailing party pursuant to Code of Civil Procedure 

section 1032, the subject of Summer’s appeal in B285029. 

(Ducoing Management, Inc. v. Superior Court (2015) 

234 Cal.App.4th 306, 314; Allen v. Smith (2002) 94 Cal.App.4th 

1270, 1284.)