On these pages over the years I have addressed whether fans hit by baseballs, golf balls and hot dogs, while attending professional sporting events, can recover for their injuries. The legal issues are fascinating and of critical importance and the results are mixed. [They’ll probably asked Judge Kavanaugh his views on the subject at his Senate Confirmation hearing for the Supreme Court.]

The World Cup just ended. Congratulations to France. Much as I tried, I just couldn’t get excited about the World Cup without the United States participating.

In any event, in honor of the World Cup, I tackle here whether a spectator, injured by a soccer ball at a professional match, can recover for his or her injuries. Yes, such a case really exists, which is surprising since more people would watch the test pattern on the NFL Network than attend a soccer match.

Allred v. Capital Area Soccer League, No. COA07-647 (N.C. Ct. App. Dec. 16, 2008) addressed whether Teresa Allred could recover for injuries sustained while attending a professional women’s soccer match at State Capital Soccer Park in Cary, North Carolina. Allred was in the stands, behind one of the goals, when a ball sailed over the goal and struck her in the head. The incident took place during pre-game warm-ups, when many balls are hit toward the goal in a relatively short period of time. Allred sustained substantial head injuries.

Allred filed suit against Capital Area Soccer League, Inc. alleging that it was “negligent in: (1) failing to warn patrons of the risk of being struck by a soccer ball leaving the field of play; (2) failing to provide a safe environment for patrons; and (3) failing to install protective netting behind the goals to protect spectators.”

The trial court granted the defendant’s motion to dismiss. That the case was dismissed, at the pleadings stage, had much to do with the decision of the North Carolina Court of Appeals.

Not surprisingly, with a dearth of case law addressing soccer ball spectator injuries, the court turned for guidance to the abundant case law involving spectators injured by baseballs. At the outset, the court noted that North Carolina cases have uniformly been decided against the spectator, either because the stadium operator was not negligent or the spectator assumed the risk of being hit by a baseball.

The opinion has a lot to say about the duty of a stadium operator to keep spectators safe, as well as a plaintiff’s assumption of the risk of being injured. With those lessons in mind, the court turned to the matter at hand and reversed the trial court’s decision granting the defendant’s motion to dismiss. However, the decision is a far cry from finding the defendant liable. The court was clearly focused on the appropriateness of a dismissal at such an early stage.

Addressing the defendant’s negligence, the court noted that it owed to plaintiff a duty of reasonable care and that defendant had breached this duty based on the allegations that it failed to warn of the risk of being struck by a soccer ball, provide a safe environment for spectators and install protective netting behind the goals.

However, there was more to it: “The defendants’ duty to warn is qualified to the extent that the danger is known or so obvious that the plaintiff should have been aware of it. The question thus becomes whether plaintiffs’ complaint contains allegations which affirmatively establish actual or constructive knowledge, e.g., that the danger was either known to the plaintiff or so open and obvious that it should have been known to the plaintiff. We hold that it does not. Regarding actual knowledge, plaintiffs’ complaint specifically alleged that plaintiff ‘had no knowledge or underlying information that there was a significant risk of being struck by a soccer ball when attending such events at this facility.’ We hold that this allegation is sufficient to withstand defendants’ Rule 12(b)(6) motion on the basis of plaintiff's actual knowledge.”

But looking into its crystal ball, to a later point in the case, the court foreshadowed that the outcome may be different: “[W]hile plaintiffs’ allegation of no knowledge of the danger based on not having been to an event at this particular stadium is sufficient to withstand a motion to dismiss at this stage of the proceedings, it may not be sufficient to withstand a motion for summary judgment or a motion to dismiss at trial. Whether the plaintiff had knowledge of the danger is not limited to her experience at this particular stadium, but would encompass her knowledge of soccer in general, and of the sport derived from attendance at other venues.”

The specific issue of protective netting was disposed of easily: “Plaintiffs contend that defendants were negligent in failing to provide protective netting behind the soccer goals. It is clear from the baseball cases that the owner of a sports facility is not required to provide screening for all seats, only a portion of the seats. While the fact of some screening would bar recovery, plaintiffs’ complaint does not affirmatively disclose whether there was any protective screening at State Capital Soccer Park.”

Again, the court’s decision was clearly tied to the appropriateness of the trial court’s dismissal at the 12(b)(6) stage, which, the court noted, should be rare in a negligence claim. Indeed, the court observed that “[a] review of the cases dealing with spectator injuries at sporting events reveals that the overwhelming number of these cases are resolved at the summary judgment or trial stage of the proceedings.”

Based on the court’s pronouncements, I get the sense that, despite the plaintiff wining this battle, she was going to have an uphill climb to recover. So what happened? There are no additional opinions in the case on Lexis. I reached out to the lawyer for Teresa Allred and he informed me that the case was the subject of a confidential settlement after the appeals court decision.