Shirley Martinez and Richard Martinez v. Houston McLane Company, LLC D/B/A Houston Astros Baseball Club

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



                                OPINION

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

judgment on their premises liability and negligence claims against Houston
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

                                          2
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.
                                           3
      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




                                          4
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).
                                            5
      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).

                                         6
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.

                                           7
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 1978 13—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.

                                         8
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).

                                             9
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
                                         10
      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:53A-
      43 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
                                         11
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,
                                         12
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.”).

                                         13
     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.

                                         14
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).

                                         15
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.

                                            16
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 owner 35 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
                                          17
      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).

                                         18
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”).

                                          19
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
                                         20
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.”).

                                         21
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.
                                         22
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




                                          23
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”).
                                          24
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”).
                                            25
                                            Harvey Brown
                                            Justice


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




                                       26