BACKGROUND
Eli attends a baseball game one summer afternoon. He is a big fan and has spent most of his summers
going to baseball games at this stadium. Eli initially sits in the nosebleed seats but notices that there aren’t
too many people that day and decides to move closer to the action. Eventually he settles in a few rows up
from the field in an area that is not covered by netting. In this ballpark, as in many others, the netting
blocks a portion, but not all, of the seats from objects that can be thrown from the field. Eli chose to sit
beyond the netting because it obscures his view of the game.
Shortly after he changes seats, the mascot “Scottie” comes out to begin his “Pretzel Launch,” a traditional
part of every game. Scottie has a theme song which blares out over the loudspeakers to let everyone know
that the launch is about to begin. Usually, Scottie looks directly at the audience while using an
underhanded throw, but sometimes he will turn around and throw his pretzels overhand behind his back.
As Eli is talking to the person sitting next to him, Scottie completes a backward throw, and the pretzel hits
Eli squarely in the eye. Eli feels a sharp pain, goes to the doctor after the game ends, and is diagnosed
with a detached retina that requires surgery to repair.
Eli wants to sue the owner of the team (the “Owner”) for negligence. This jurisdiction has established a
mixed comparative negligence or fault regime.
QUESTIONS
You may choose whether you would like to serve as legal counsel for Eli or the Owner. Incorporate into
your responses how this scenario is similar to the case(s) under “Universe” that provide the most support
for your argument, and how it is different from the case(s) in which the judges decided the opposite of the
result you hope to achieve now. You may also draw upon dissents, where appropriate.
Your brief should address the following questions:
1. What is negligence?
2. Has the Owner been negligent? In answering this question, make sure that you focus
appropriately on the elements of negligence that are most in question in this case.
3. What are some defenses the Owner might raise and how strong are they?
4. What are the public policy implications of a decision in your favor?
UNIVERSE
In this universe, this is a case of first impression. The following guidelines and cases are the only ones
that apply. Treat the cases as persuasive authority, not binding precedent.
• Loughran v. The Phillies, 888 A.2d 872 (2005)
• Cohen v. Sterling Mets, L.P., 17 Misc. 3d 218 (N.Y. Sup. Ct. 2007)
• Lowe v. California League of Prof. Baseball, 56 Cal. App. 4th 112 (1997)
INSTRUCTIONS
Write a memo supporting your side, demonstrating an understanding of legal reasoning and using all of
the cases provided under “Universe.” No outside research or reading except for these materials isencouraged; however, you may use any of the LBS materials on Brightspace for supplemental
information.
Your brief should be between five (5) to seven (7) pages. Follow the other formatting and content
guidelines as set forth in the syllabus.
