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Strike 3 for suit over ball injury
The spectator was warned and assumed the risk of being hit, the appellate court ruled.
YOUNGSTOWN — A lawsuit over a foul ball has struck out at the Ohio Supreme Court.
On Wednesday, the state’s top court declined to review the dismissal of a lawsuit against the Mahoning Valley Scrappers, which was filed by a woman who claimed the Scrappers negligently allowed a foul ball to hit her on the head and injure her.
In refusing to consider Jane Warga’s lawsuit, the high court left intact a 7th District Court of Appeals decision that upheld the dismissal of the case by Judge Timothy E. Franken of Mahoning County Common Pleas Court.
Judge Franken dismissed the suit without a trial last year, saying that, as a spectator, Warga “assumed the risks inherent in attending a baseball game.”
In her $75,000 lawsuit, Warga, of South Meridian Road, said the ball hit her during a game at Eastwood Field in Niles as she turned away from the field en route to a concession stand July 20, 2004.
In a lawsuit filed against the minor-league baseball team two years later, Warga said she suffered a head injury and blurred vision and incurred medical expenses, including bills for physical therapy, and continued to suffer pain from her injuries.
In her oral argument in February before a three-judge panel of the 7th District Court of Appeals, Warga’s lawyer, Patricia A. Morris of Canfield, argued that Warga’s assumption of risk as a spectator did not apply because she was away from her seat headed to a concession stand when the errant ball hit her.
But the Scrappers lawyer, Jeffrey R. Lang of Cleveland, said Warga chose to leave her seat while the game was under way, despite warnings concerning foul balls, which were displayed on signs and ticket stubs and given over the loudspeaker.
“The game was in active play when appellant [Warga] chose to leave her seat and move about the stadium,” and Warga assumed the risks of attending the game, the appellate court unanimously ruled.
Morris said she was “very disappointed” by the high court’s refusal to review the case.
“I felt that there was merit to look at some of the arguments that we had in our brief that you cannot assume the risk when it seems to me that there was an obligation and duty on the part of the stadium to indicate zones of danger,” she said.
“She was not in the stands. The screening had nothing to do with the position or location that she was in the stadium,” Morris added, referring to the stadium’s foul-ball netting.
milliken@vindy.com