# Friedman v. Houston Sports Ass'n

> Texas Court of Appeals, 1st District (Houston) · May 28, 1987 · 731 S.W.2d 572

URL: https://www.frixlaw.com/law-library/cases/9654982

## Case

- **Full name:** Karen FRIEDMAN and Robert Friedman, Appellants, v. HOUSTON SPORTS ASSOCIATION, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** May 28, 1987
- **Citations:** 731 S.W.2d 572
- **Precedential status:** Published
- **Opinion:** Concurrence by Cohen
- **Judges:** Dunn, Bass, Cohen
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9654982

## How later opinions describe it (automated extraction)

- 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
- finding duty to provide screened seats for aH those desiring them

## Opinion text

COHEN, Justice,
concurring.
American courts have refused, almost without exception, to allow sports spectators to recover for injuries caused by the open and obvious risks of the game. This rule is nowhere more clear than in baseball cases. The holdings are made as a matter of law on one or more of the following grounds: (1) the defendant had no duty to warn or protect the plaintiff from an open and obvious danger; (2) the plaintiff assumed the risk that was, or should have been, obvious to him; and (3) the plaintiff *576 was guilty of contributory negligence by placing himself in a dangerous location.
Our courts have held that the danger from foul balls at baseball games is so well known that it may be judicially noticed. In Schentzel v. Philadelphia National League Club, 173 Pa.Super. 179 , 96 A.2d 181 (1953), the rule was invoked to bar recovery even to a woman attending her first game. In a classic statement, the court wrote:
Plaintiff was a woman 47 years of age. There is nothing whatever in the record to support an inference that she was of inferior intelligence, that she had subnormal perception, or that she led a cloistered life. Consequently she must be presumed to be cognizant of the ‘neighborhood knowledge’ with which individuals living in organized society are normally equipped.
The court went on to state what was included within the term “neighborhood knowledge”:
We think the frequency with which foul balls go astray, alight in the grandstand or fields, and are sometimes caught and retained by onlookers at baseball games is a matter of such common everyday practical knowledge as to be a subject of judicial notice. It strains our collective imagination to visualize the situation of a wife of a man obviously interested in the game, whose children view the games on the home television set, and who lives in a metropolitan community, so far removed from that knowledge as not to be chargeable with it.
Id., 96 A.2d at 186 ; accord Perry v. Seattle School District, 66 Wash.2d 800 , 405 P.2d 589 (1965) (plaintiff was a 67-year-old female attending her second game); Keys v. Alamo City Baseball Co., 150 S.W.2d 368 (Tex.Civ.App.—San Antonio 1941, no writ) (plaintiff, a 42-year-old female attending her second game, held bound by “universal common knowledge”).
Thus, adult plaintiffs must lose when their injuries result from the game’s obvious hazards. As the majority states, this is also the rule in Texas. McNiel v. Fort Worth Baseball Club, 268 S.W.2d 244 (Tex.Civ.App.—Fort Worth 1954, writ ref’d). It may even be a good rule, when applied to adults. I am not convinced, however, that it is the rule, and certainly not a good rule, to apply this principle, as a matter of law, in a case involving an 11-year-old child as a plaintiff. Some 11-year-olds will know the dangers of baseball, and some will not. I cannot say, as a matter of law in every case and without exception, that those 11-year-olds who do not know of baseball’s dangers lack the minimum level of “neighborhood knowledge” that society demands. In my opinion, a landowner who invites an unsupervised 11-year-old child to its premises should not be surprised if a court imposes liability upon finding that the child is less aware of some particular danger, and thus more in need of warning, than its parents or older siblings. Juries are well suited to make such distinctions, and we owe considerable deference to their verdicts when reviewing judgments n.o.v.
I nevertheless join the court’s decision because I believe that any failure to warn this 11-year-old was excused, since she was accompanied by an adult responsible for her welfare. The law holds that there is no duty to warn adults. When a young minor enters a premises with a responsible adult, the landowner has a right to rely on the adult to protect the minor from dangers that are within the adult’s “neighborhood knowledge.” Thus, the neighborhood knowledge that the law requires of Robert Friedman is imputed through him to Karen Friedman. In fact, Karen was generally warned about baseballs on the night of the accident by Melvin Weiss, and was told not to try to catch foul balls and to be careful when she approached the dugout.
The jury refused to find that Robert Friedman was negligent in failing to warn Karen about foul balls, in selecting seats behind the dugout, or in allowing Karen to leave her assigned seat. Yet Texas law holds, notwithstanding the jury’s verdict, that Robert Friedman assumed this risk for Karen by allowing her to be at the place where she was injured. Although uncomfortable with this rule, as an intermediate *577 appellate court justice, I am bound to follow it.
This does not mean that a duty to warn could never arise. An unsupervised 11-year-old invited into the stadium, despite his lack of “neighborhood knowledge,” might be owed a warning, although his parents might be negligent for allowing him to attend without supervision.
With these reservations, I concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9654982. Public record. Not legal advice.