July 31, 2009 – Edward Crespin v. Albuquerque Baseball Club, No. 27,864

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: JULY 31, 2009

NO. 27,864

EDWARD CRESPIN and JANIS CRESPIN,
Individually and as parents of

EMILIO CRESPIN, RACHEL CRESPIN,
and CASSANDRA GARCIA, all minors,

Plaintiffs-Appellants,
V.

ALBUQUERQUE BASEBALL CLUB,
LLC, d/b/a ALBUQUERQUE ISOTOPES,
CITY OF ALBUQUERQUE, HOUSTON
MCLANE COMPANY d/b/a HOUSTON
ASTROS, and DAVE MATRANGA,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Richard J. Knowles, District Judge

Vigil Law Firm, P.A.
Jacob G. Vigil
Albuquerque, NM

L. Helen Bennett
Albuquerque, NM

for Appellants

Butt Thornton & Baehr, PC
Sean E. Garrett

S. Carolyn Ramos
Emily A. Franke
Albuquerque, NM
for Appellee Albuquerque Baseball Club, LLC
d/b/a Albuquerque Isotopes
Robert M. White, City Attorney
Michael I. Garcia, Assistant City Attorney
Albuquerque, NM
for Appellee City of Albuquerque
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Max J. Madrid
Emil J. Kiehne
Albuquerque, NM
Gardere Wynne Sewell, LLP
Jeffrey S. Davis
Houston, TX
for Appellees Houston McLane Co. d/b/a Houston
Astros and Dave Matranga

OPINION
FRY, Chief Judge.
{1} Plaintiffs sued Defendants Albuquerque Baseball Club, LLC, d/b/a
Albuquerque Isotopes (Isotopes), the City of Albuquerque (the City), Houston
McLane Co. d/b/a Houston Astros (Astros), and Dave Matranga for injuries
sustained by their son when Plaintiffs were attending a pre-game picnic at the
Isotopes baseball team’s stadium in Albuquerque, New Mexico. Matranga, a
player for the visiting Astros team, was engaged in pre-game batting practice when
he batted a ball that struck Plaintiffs’ four-year-old son, Emilio. The district court
granted all Defendants summary judgment, and Plaintiffs appeal. Although we
acknowledge that there are certain risks to spectators inherent in the game of
baseball, we reverse summary judgment in favor of the Isotopes and the City on
the ground that, under the particular circumstances alleged, there are issues of
material fact precluding summary judgment. We affirm summary judgment in
favor of the Astros and Matranga, and we affirm the district court’s order denying
Plaintiffs’ motion to amend their complaint.
BACKGROUND
{2} Plaintiffs’ complaint against Defendants alleged that on July 21, 2003,
Emilio and his parents and sisters were seated at picnic tables located in the left
outfield stands at the stadium owned by the City and operated by the Isotopes.
Without warning or notice, “[p]re-game began,” and Matranga hit a ball “directly

into the left field picnic tables.” The ball struck Emilio in the head and fractured
his skull. Plaintiffs alleged that the City and the Isotopes owed Plaintiffs “the duty
to use ordinary care to keep the premises safe for use by visitors” and breached that
duty and that Matranga, an employee of the Astros, “ignored his duty to exercise
ordinary care as he directed the ball into the occupied picnic area.” Plaintiffs
further alleged that Matranga’s conduct “was wanton and showed an utter
indifference to or conscious disregard for the safety of” Plaintiffs and other visitors
at the stadium. Plaintiffs’ theories of negligence against the City and the Isotopes
included failure to adequately protect spectators from fly balls, failure to warn, and
failure to keep the premises safe for visitors. Against the Astros, Plaintiffs alleged
negligent training and supervision of Matranga and vicarious liability for
Matranga’s conduct.
{3} All Defendants filed motions for summary judgment. The City and the
Isotopes, relying on cases in other jurisdictions, argued that an owner/occupier of a
baseball stadium has only a limited duty to screen spectators with protective
netting in the most dangerous part of the stadium, which is behind home plate, and
to provide enough seating in the screened area to accommodate reasonable
demand. Because the City and the Isotopes provided such netting, they maintained
that as a matter of law they had satisfied any duty owed to Plaintiffs. The Astros
and Matranga, also relying on out-of-state case law, argued that a baseball player
owes no duty to a spectator but that even if such a duty is owed, the Astros and

Matranga did not breach the duty as a matter of law.
{4} The Isotopes and the City submitted affidavits in support of their motions.
In one affidavit, Sandy Eeds attested that he had been involved in the design of the
stadium in question and that the design and construction included a protective
netting behind home plate that was consistent with netting provided at other,
similar ballparks. The netting “accommodate[s] the reasonable needs of Isotopes
Park and the offered seating is consistent with such seating offered at other
ballparks with a similar size and seating capacity.” Eeds further attested that the
picnic area in which Plaintiffs were seated is “behind the left field wall [and] is
designed as an area where fans can watch the game while sitting at a picnic style
table.”
{5} The Astros and Matranga submitted some of the official rules of baseball in
support of their motion, including the rule stating that a batter becomes a runner
when, among other scenarios, “[a] fair ball passes over a fence or into the stands at
a distance from home base of 250 feet or more[,] . . . [which] entitles the batter to a
home run.” This is apparently what happened when Matranga hit the ball into the
picnic area; in other words, Matranga hit a home run during pre-game batting
practice, and the ball struck Emilio.
{6} In response to Defendants’ motions, Plaintiffs filed responses and submitted
their own evidence. Plaintiffs tendered their answers to interrogatories, in which
they attested that the family members had just sat down with their food in the

stadium’s picnic area for a pre-game little league party and had begun to eat when,
without warning, a baseball struck Emilio in the head. Plaintiffs also submitted the
affidavit of Chad Kuhn, who played five seasons of professional baseball and who
claimed to be “familiar with and [to] have personal and professional knowledge of
standard stadium safety practices.” Kuhn opined that the picnic area at Isotopes
stadium “failed to utilize proper safety standards” by arranging the picnic tables so
that the patrons were not facing the field, by failing to screen the area with
protective netting, and by failing to warn patrons that balls might enter the area.
{7} Following a hearing, the district court granted Defendants’ motions for
summary judgment. Plaintiffs appeal.
DISCUSSION
{8} We review summary judgment de novo. “A party is entitled to summary
judgment if the party can demonstrate that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Martin v. Franklin Capital Corp., 2008-NMCA-152, ¶ 6, 145 N.M. 179, 195
P.3d 24 (internal quotation marks and citation omitted). “An issue of fact is
material if the existence (or non-existence) of the fact is of consequence under the
substantive rules of law governing the parties’ dispute.” Id. (internal quotation
marks omitted).
{9} This case presents the first opportunity for a New Mexico appellate court to
consider whether to carve out an exception to the usual tort doctrines for the sport

of baseball. As Defendants aptly observe, the game of baseball subjects spectators
to the inherent risk of being struck by a ball, but many spectators welcome the risk
in order to experience the game more intimately or perhaps to catch a foul ball or a
home run ball. See Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 222 (Mich.
Ct. App. 2001) (noting that “baseball patrons generally want to be involved with
the game in an intimate way and are even hoping that they will come in contact
with some projectile from the field (in the form of a souvenir baseball)”). In
addressing the issue before us, we first review established New Mexico tort law
and then consider case law from other jurisdictions.
New Mexico Tort Law
{10} Our Supreme Court considered the risks inherent in a spectator sport in
McFatridge v. Harlem Globe Trotters, 69 N.M. 271, 365 P.2d 918 (1961), in which
the plaintiff had been hit by a basketball thrown by a member of the Harlem Globe
Trotters at a game. Id. at 272-73, 365 P.2d at 919. On appeal from a judgment in
favor of the plaintiff, the defendant argued that the district court should have
instructed the jury on assumption of the risk and relied on an ALR annotation
regarding that doctrine in the context of baseball. Id. at 274, 365 P.2d at 920. The
Court observed in dictum: “That there is danger from being injured by being
struck by balls hit foul or otherwise striking spectators in certain locations at
baseball games which would be known to fans of the game is clear and from this
fact arises the custom to protect the areas of greatest danger.” Id. at 277, 365 P.2d

at 922. Because there was no similar degree of danger in basketball, the Court
concluded that there was no need to instruct specifically on the doctrine of
assumption of the risk because the jury had been instructed on contributory
negligence. Id.
{11} The dictum in McFatridge suggests that the law should somehow
acknowledge the risks inherent in baseball. This suggestion was diluted to some
extent twenty years later when our Supreme Court adopted comparative negligence
in Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), superseded by statute as
stated in Reichert v. Atler, 117 N.M. 628, 875 P.2d 834 (1992). In Rizzo, the Court
stated that “[a]ssumption of risk as a form of negligence and other liability
concepts based on or related to negligence of either plaintiff, defendant, or both,
are subject to the comparative negligence rule.” Id. at 687, 634 P.2d at 1239
(internal citation omitted). From this statement we can conclude that a spectator’s
knowledge of baseball’s inherent risks should not automatically preclude the
spectator from recovering if he or she is injured as a result of one of those risks.
Rather, the spectator’s assumption of the risks inherent in the game may inform the
fact finder’s assessment of the parties’ relative fault. We therefore turn to New
Mexico law on the basic tort precepts.
{12} In making their arguments, the Isotopes, the Astros, and Matranga employ
the tort concepts of duty and breach of duty, and sometimes they muddy the
difference between the two. It is well established in New Mexico that “[i]f it is

found that a plaintiff, and injury to that plaintiff, were foreseeable, then a duty is
owed to that plaintiff by the defendant.” Ramirez v. Armstrong, 100 N.M. 538,
541, 673 P.2d 822, 825 (1983). In addition, “[e]very person has a duty to exercise
ordinary care for the safety of the person and the property of others.” Bober v.
N.M. State Fair, 111 N.M. 644, 648, 808 P.2d 614, 618 (1991) (internal quotation
marks and citation omitted). “Whether [a defendant] breached that duty—i.e.,
whether it was negligent—is a question as to whether it exercised ordinary care for
the safety of persons in [the plaintiff’s] situation. That is a question for the jury to
decide[.]” Id.
{13} Given this black letter law, we disagree with the dissent and conclude that
the question before us concerns the concept of breach of duty. See Dissent ¶ 44.
Defendants do not argue that Emilio and his injury were unforeseeable.
Consequently, all Defendants owed Emilio a duty to exercise ordinary care for his
safety. UJI 13-1604 NMRA (stating that “[e]very person has a duty to exercise
ordinary care for the safety of the person and the property of others”).
{14} The question of whether a defendant breached a duty owed to a plaintiff is
generally a question of fact. Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 30,
134 N.M. 43, 73 P.3d 181 (explaining that whether the defendant took appropriate
precautions was “a question concerning breach of a duty of ordinary care for the
finder of fact”); Bober, 111 N.M. at 648, 808 P.2d at 618 (stating that whether the
defendant breached the duty owed to the plaintiff “is a question for the jury to

decide”). Therefore, Defendants were entitled to summary judgment only if they
established that they fulfilled their duty to Emilio as a matter of law.
{15} At this point it is logical to separate the claims against the Isotopes and the
City from those made against the Astros and Matranga. The Isotopes and the City
rest their arguments on a rule applied in other jurisdictions to the owners or
occupiers of baseball stadiums. The Astros and Matranga are not in this category,
and the rule being advocated does not apply to them. We therefore begin by
considering the arguments made by the Isotopes and the City.
The Isotopes and the City In Effect Urge Adoption of a Rule of Immunity
{16} The Isotopes and the City maintain that we should follow the same path
taken by courts in other jurisdictions and conclude as a matter of policy that
screening a baseball stadium behind home plate constitutes satisfaction of the duty
of ordinary care. We therefore turn to an examination of these cases.
{17} The Isotopes and the City urge us to adopt what we will call “the baseball
rule.”1 This rule is that “in the exercise of reasonable care, the proprietor of a ball
park [(1)] need only provide screening for the area of the field behind home plate
where the danger of being struck by a ball is the greatest” and that “[(2)] such
screening must be of sufficient extent to provide adequate protection for as many
spectators as may reasonably be expected to desire such seating in the course of an
1Defendants and some cases refer to this rule as the “limited duty rule.”
However, to avoid giving the impression that the rule relates to a defendant’s duty
rather than to breach of duty, we prefer our nomenclature.

ordinary game.” Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 331 (N.Y.
1981).
{18} Many courts have adopted some form of this rule. See generally id.; James
L. Rigelhaupt, Jr., Annotation, Liability to Spectator at Baseball Game Who Is Hit
by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979). In
Akins, for example, the plaintiff attended a high school baseball game and,
although a backstop shielded spectators behind home plate, the plaintiff was in an
unscreened area watching the game when a foul ball struck her in the eye. Akins,
53 N.Y.2d at 327-28. The plaintiff alleged that the school district negligently failed
to screen along the field’s base lines, and a jury found in her favor. Id. The
appellate division affirmed, but the court of appeals adopted the baseball rule and
reversed. Id. at 328-31. The court noted that the plaintiff had presented no
evidence suggesting that the existing screening was inadequate or that there were
insufficient protected seats and, therefore, “the school district fulfilled its duty of
reasonable care to plaintiff as a matter of law.” Id. at 332-33; see Tucker v. ADG,
Inc., 2004 OK 71, ¶ 15, 102 P.3d 660, 666 (reaffirming holding in a prior case that
“determin[ed] as a matter of law: the absence of a duty on the part of the owner or
occupant of the premises to reconstruct or alter the premises so as to obviate
known and obvious dangers, and the absence of [the] defendants’ liability for a
spectator’s injury resulting from an obvious danger or one that should have been
observed in the spectator’s exercise of ordinary care”); Benejam, 635 N.W.2d at

220, 221-25 (adopting the baseball rule in a case where the plaintiff was seated
behind the screening but was hit by a fragment that broke off a bat and curved
around the net because “there is an inherent risk of objects leaving the playing field
that people know about when they attend baseball games”); McNiel v. Fort Worth
Baseball Club, 268 S.W.2d 244, 246 (Tex. Civ. App. 1954) (explaining that a
baseball club “is held to have discharged its full duty when it has provided
adequately screened seats in stands in which the patron may sit if he so desires”
and the patron is struck by a ball while occupying an unprotected seat chosen by
the patron “with full knowledge of the risks and dangers to be encountered”);
Gunther v. Charlotte Baseball, Inc., 854 F. Supp. 424, 426, 428-30 (D.S.C. 1994)
(concluding that the South Carolina supreme court would determine that the
plaintiff, who was struck by a foul ball when she was sitting in an unscreened seat,
“voluntarily assumed the risk of her injuries” as a matter of law). These cases
support the proposition that adequate screening of the most dangerous seats
immunizes stadium owners from liability regardless of how the injury occurs. The
Isotopes and the City advocate our adoption of this immunity rule.
{19} Some courts have declined to adopt the baseball rule as a per se delineation
of reasonable care in baseball cases, or they have adopted the rule with limitations.
In Coronel v. Chicago White Sox, Ltd., 595 N.E.2d 45 (Ill. App. Ct. 1992), the
plaintiff was seated three seats away from the edge of the protective screen when
she looked down into her lap and was stuck by a foul ball. Id. at 46. The appellate

court reversed summary judgment in favor of the defendant occupiers of the
stadium, stating that a defendant owner or occupier of land “owes a duty of
reasonable care to business invitees located on his premises. We find no exception
in favor of sports facilities from this requirement.” Id. at 46-47, 50 (citation
omitted). The court concluded that the adequacy of the screening itself was a
question of fact for the jury, not a question to be determined by the defendant. Id.
at 48. And in Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 881 A.2d
700 (N.J. 2005), the New Jersey Supreme Court adopted the baseball rule but
limited its applicability to the stands themselves. Id. at 707. Thus, “multi-purpose
areas, such as concourses and playground areas, are outside the scope of the rule.”
Id.
{20} Other courts take this approach and exclude the rule’s applicability from
situations in which fans may not have their full attention on what is happening.
For example, in Maytnier v. Rush, 225 N.E.2d 83, 86, 88-89 (Ill. App. Ct. 1967),
the Illinois appellate court affirmed a verdict in favor of a plaintiff who was hit by
a baseball thrown by a pitcher warming up in the bull pen, stating that the
plaintiff’s evidence that he was paying attention to the game rather than to the bull
pen “clearly raise[d] triable issues of fact of sufficient credibility and probative
value to warrant the court’s refusal of a directed verdict in favor of [the]
defendant.” And in Jones v. Three Rivers Management Corp., 394 A.2d 546, 547-
48 (Pa. 1978), the Pennsylvania Supreme Court affirmed a jury verdict in favor of

a plaintiff who was struck by a ball hit during batting practice when she looked
through an opening in the stadium’s interior concourse. The court noted that
although baseball facilities will not ordinarily be liable for inherent risks, the
openings were not an inherent feature of baseball, and the issue of the defendant’s
liability was properly for the jury to decide. Id. at 549-51; see Lowe v. Cal. League
of Prof’l Baseball, 65 Cal. Rptr. 2d 105, 114-15, 123 (Ct. App. 1997) (reversing
summary judgment in favor of the defendant where the plaintiff submitted
evidence that at the time he was hit by a foul ball, he was distracted from the game
by the team’s dinosaur mascot, whose tail bumped the plaintiff’s shoulder, stating
that “the antics of the mascot are not an essential or integral part of the playing of a
baseball game”).
{21} Commentators have criticized the baseball rule as a throw-back to the days
when assumption of the risk was a sub-category of contributory negligence and as
a rule that has failed to respond to baseball’s evolution over the years. For
example, in David Horton, Comment, Rethinking Assumption of Risk and Sports
Spectators, 51 UCLA L. Rev. 339, 365 (2003) [hereinafter Horton], the author
notes that the rule “mirrors the caveat emptor ideology of tort law in the early
twentieth century” and that since then, “[t]ort rules gradually have begun to
embody the insight that in many situations, it is both more equitable and efficient
to ask defendants to assume responsibility for injuries arising from their activities.”
See Gil Fried and Robin Ammon, Baseball Spectators’ Assumption of Risk: Is It

‘Fair’ or ‘Foul’?, 13 Marq. Sports L.J. 39, 54-59 (2002) (emphasizing the changes
in viewing patterns and marketing strategies that increase the level of spectators’
distraction from the game and the likelihood that screened seats behind home plate
are sold at premium prices and are therefore unavailable to the casual game
attendee).
{22} Indeed, the Restatement (Third) of Torts: Apportionment of Liability § 3
(2000) appears to advocate a rejection of per se rules like the baseball rule in favor
of the application of modern tort law principles. That section states that “[a
p]laintiff’s negligence is defined by the applicable standard for a defendant’s
negligence. Special ameliorative doctrines for defining [a] plaintiff’s negligence
are abolished.” Id. Among the “ameliorative doctrines” abolished is implied
assumption of the risk, which was set out in Restatement (Second) of Torts §§
496A, 496C-496G (1965). See Restatement (Third) of Torts: Apportionment of
Liability § 3 cmt. c, at 32. The Restatement (Third) of Torts provides the following
relevant example:
A attends a baseball game at B’s ballpark. A sits in a portion of
the stands beyond the point where the screen prevents balls from
entering the seats. A is aware that balls occasionally are hit into the
stands. The fact that A knew balls are occasionally hit into the stands
does not constitute assumption of risk. The fact that A knew balls
occasionally are hit into the stands is relevant in evaluating whether A
acted reasonably by engaging in particular types of conduct while
sitting in the stands (sitting in the stands would not itself constitute
unreasonable conduct). If the [fact finder] concludes that A did not
act reasonably under the circumstances, A’s knowledge of the risk is
relevant to the percentage of responsibility the [fact finder] assigns to

A. . . . If B could reasonably assume that A and other fans are aware
that balls are occasionally hit into the stands, this fact is also relevant
to whether B acted reasonably in relying on A to watch out for balls
instead of constructing a screen or providing warnings.
Restatement (Third) of Torts: Apportionment of Liability § 3 cmt. c, illus. 6, at 32.
Thus, according to this view of baseball, the fact finder assesses all of the
circumstances to determine whether, for example, the plaintiff’s failure to pay
attention to the playing field was negligent and whether the defendant stadium
owner was negligent in failing to warn that batting practice was about to begin.
We Decline to Adopt the Baseball Rule
{23} Considering the authorities reviewed above, we appreciate the rationale
underlying the baseball rule as well as the reasons counseling against its adoption.
However, we are persuaded by the commentators and by the Restatement (Third)
of Torts: Apportionment of Liability that there is no compelling reason to
immunize the owners/occupiers of baseball stadiums. Comparative negligence
principles allow the fact finder to take into account the risks that spectators
voluntarily accept when they attend baseball games as well as the ability of
stadium owners to guard against unreasonable risks that are not essential to the
game itself. By contrast, the approach embodied by the baseball rule “excludes an
entire class of plaintiffs[,] bestows a subsidy on sophisticated business enterprises[,
and] represents the central tenets of a bygone era.” Horton, supra, at 376.
{24} In addition, our rejection of the baseball rule is consistent with New Mexico

law. As this Court noted in Yount v. Johnson, the law has recently “moved
forcefully towards a public policy that defines duty under a universal standard of
ordinary care, a standard which holds all citizens accountable for the
reasonableness of their actions.” 1996-NMCA-046, ¶ 4, 121 N.M. 585, 915 P.2d
341. “The movement has been away from judicially declared immunity or
protectionism, whether of a special class, group or activity.” Id. (emphasis added).
While the baseball rule may have made sense during the era of the all-or-nothing
contributory negligence doctrine, it no longer does. Under our present tort system,
we discern no public policy reason to justify bestowing immunity on the business
of baseball.
There Are Issues of Fact Precluding Summary Judgment
{25} Even though we decline to adopt the baseball rule, there remains the
question of whether it can be said that Plaintiffs were precluded from recovery as a
matter of law. The question of whether a defendant has breached the duty of
ordinary care is generally a question of fact, but if no reasonable fact finder can
conclude that the defendant was negligent, summary judgment is appropriate.
Gourdi v. Berkelo, 1996-NMSC-076, ¶ 11, 122 N.M. 675, 930 P.2d 812.
{26} Plaintiffs alleged that the Isotopes and the City breached their duty of
reasonable care under the circumstances by failing to keep Plaintiffs safe or by
failing to warn Plaintiffs. In their motions for summary judgment, the Isotopes and
the City relied exclusively on the baseball rule and the affidavit of Eeds, which

states that the Isotopes and the City had complied with the rule. Because we
decline to adopt the rule, this argument fails. The Isotopes and the City have not
presented evidence that, in the absence of the baseball rule, screening the stands
behind home plate satisfied their duty to exercise reasonable care for Emilio and
other spectators in the picnic area. See Paragon Found., Inc. v. N.M. Livestock
Bd., 2006-NMCA-004, ¶ 11, 138 N.M. 761, 126 P.3d 577 (filed 2005) (explaining
that movant must make a prima facie showing of entitlement to summary
judgment).
{27} Plaintiffs argue that by providing picnic-style seating, which arguably invites
spectators to turn their attention away from the field, the Isotopes and the City
reasonably could have been expected to screen that area in addition to the area
behind home plate. In addition, Plaintiffs note that the injury occurred during
batting practice before the game began, a time during which spectators were not
necessarily aware that balls might fly into the picnic area. Plaintiffs argue that
such circumstances may warrant some kind of warning. For example, perhaps the
Isotopes could announce over the loudspeaker that batting practice was about to
begin and that spectators should be alert for foul or home run balls.
{28} In summary, Plaintiffs’ allegations raise issues of fact regarding the actions
the Isotopes and/or the City might reasonably be expected to take in order to
protect spectators in the picnic area. The Isotopes and the City did not meet their
burden by introducing evidence that they took any action to protect spectators

beyond screening the stands behind home plate.
{29} We are not persuaded that our refusing to adopt the baseball rule will destroy
the game of baseball, as Defendants seem to suggest. Even without the baseball
rule, “[m]any spectators’ claims [will] be barred under traditional negligence
principles if the jury determine[s] that the stadium owner had pursued reasonable
means of providing a safe stadium.” Horton, supra, at 369. In addition, we do not
believe it is necessary to immunize the Isotopes and the City against all risks in
order to preserve the game of baseball. See Loughran v. The Phillies, 888 A.2d
872, 881 (Bender, J., dissenting) (stating that “it is not necessary for the
preservation of the activity to immunize the operator against the risk in question”).
Nor is there reason to fear that jurors are somehow unable to comprehend and
assess the complexities of inherent risk and the duty of ordinary care. As we
observed in Berlangieri v. Running Elk Corp., 2002-NMCA-060, ¶ 20, 132 N.M.
332, 48 P.3d 70, aff’d on other grounds in 2003-NMSC-024, 134 N.M. 341, 76
P.3d 1098, “We remain confident that jurors are capable of distinguishing between
risks of injury that cannot be eliminated without depriving a sport or recreational
activity of its essential character and unnecessary risks that arise as the result of the
proprietor’s failure to exercise due care for its patrons.” See Neil Vidmar, The
Performance of the American Civil Jury: An Empirical Perspective, 40 Ariz. L.
Rev. 849, 898 (1998) (concluding that “[o]n the issue of negligence, there is no
evidence to support the claim that juries decide cases less competently than judges

and some reason to suspect that the combined judgments of jurors, enhanced
through the deliberation process, may be as good or better than those that would be
rendered by a randomly selected judge”).
Summary Judgment in Favor of the Astros and Matranga Was Proper
{30} The analysis regarding summary judgment in favor of the Astros and
Matranga differs somewhat from the analysis above. The Isotopes and the City
owned the stadium and are therefore in a position to take some steps to protect
spectators from the inherent dangers associated with baseball. Even those cases
adopting a pure form of the baseball rule acknowledge that, at minimum, a stadium
owner must screen the most dangerous seats behind home plate. The Astros and
Matranga, on the other hand, are simply the personification of the game in this
case. They established in their motion for summary judgment that the rules of
baseball anticipate and expect that players like Matranga should attempt to and will
hit balls into areas where there are spectators.
{31} The Astros and Matranga submitted selected official rules of baseball, which
state that “[t]he objective of each team is to win by scoring more runs than the
opponent” and that “[t]he batter becomes a runner when[, among other things, a]
fair ball passes over a fence or into the stands at a distance from home base of 250
feet or more.” Therefore, when Matranga was practicing and hit the home run ball
that struck Emilio, Matranga was simply playing baseball according to the rules
and doing what his employer, the Astros, wanted him to do. Common sense tells

us that Matranga could not be expected to try to avoid hitting the ball into areas
where spectators were located because if he did, he would diminish his chances of
becoming a runner and thus inhibit his team’s chances of winning a game.
{32} Of course, if Plaintiffs established that Matranga hit the ball with the
intention of hitting Emilio or someone else, the analysis would be different. But
Plaintiffs did not allege or introduce evidence of this, as we discuss in more detail
below.
{33} The Astros and Matranga made a prima facie case that their actions satisfied
their duty to exercise reasonable care under the circumstances. The circumstances
here involved a baseball player engaged in batting practice and attempting to
perform as the official rules and his team expected him to perform. Those rules
and the team expected him to do exactly what he did—hit a home run over the
fence during batting practice.
{34} In the face of this prima facie showing, Plaintiffs then had to “demonstrate
the existence of specific evidentiary facts which would require trial on the merits.”
Paragon Found., Inc., 2006-NMCA-004, ¶ 11 (internal quotation marks and
citation omitted). Plaintiffs failed to make this showing.
{35} Plaintiffs characterize Matranga’s batting as the “wanton engagement in
batting practice with utter indifference to the consequences.” Plaintiffs thus seem
to recognize that something more than mere negligence is necessary if they seek to
impose liability on a baseball player. However, Plaintiffs have presented no

evidence suggesting that Matranga’s mental state would support an intentional tort.
The only evidence Plaintiffs submitted regarding Matranga’s mental state was the
statement in Chad Kuhn’s affidavit stating, “It is my belief that the Houston Astros
and Dave Matranga were also negligent during their batting practice by
intentionally hitting balls into a populated area of the park which was unprotected.”
This statement does not comport with the requirements for affidavits submitted in
opposition to a motion for summary judgment, which “shall be made on personal
knowledge [and] shall set forth such facts as would be admissible in evidence.”
Rule 1-056(E) NMRA. “Belief or opinion testimony alone, no matter how sincere
it may be, is not equivalent to personal knowledge.” Martinez v. Metzgar, 97 N.M.
173, 175, 637 P.2d 1228, 1230 (1981). Plaintiffs did not present any other
evidence suggesting that Matranga and/or the Astros did anything that might be
considered negligent under the circumstances. Consequently, summary judgment
in favor of the Astros and Matranga was proper.

The District Court Properly Denied Plaintiffs’ Motion to Amend
{36} After the hearings on Defendants’ motions for summary judgment, Plaintiffs
filed a motion seeking leave to file a second amended complaint, which added
allegations that “Matranga, with the assistance of the [p]itching [c]oach,
intentionally tried to target high velocity baseballs” into the area where Emilio and
his family were sitting, that even after Emilio was struck, Matranga continued to
target the area with balls in an attempt to clear the area of spectators, and that
Matranga and/or his pitching coach intended to and did touch or apply force to
Plaintiffs and others in an “insolent manner.” The district court scheduled a
hearing on the motion, but before the hearing, it granted Defendants’ motions for
summary judgment. We construe this as a denial of the motion to amend. See
Stinson v. Berry, 1997-NMCA-076, ¶ 8, 123 N.M. 482, 943 P.2d 129 (deeming
implicitly denied a motion to amend the complaint filed after argument of the
defendants’ summary judgment motions where, without ruling on the motion to
amend, the district court entered summary judgment inconsistent with the granting
of the amendment).
{37} We review the denial of a motion to amend for abuse of discretion. Hedicke
v. Gunville, 2003-NMCA-032, ¶ 20, 133 N.M. 335, 62 P.3d 1217 (filed 2002).
Although leave to amend should be freely given when justice so requires, “[w]here
a motion to amend comes late in the proceedings and seeks to materially change
[the p]laintiff’s theories of recovery, the court may deny such motion.” Id.

(internal quotation marks and citation omitted).
{38} In the present case, Plaintiffs filed their motion to amend nearly two years
after they initiated the litigation and nearly a month after the hearings on the
motions for summary judgment. The Astros and Matranga argued that the district
court should deny the motion because (1) Plaintiffs unduly delayed the filing of
their motion, (2) the addition of the intentional tort claims would be futile, and (3)
Plaintiffs’ motion exhibited a bad motive. See Krieger v. Wilson Corp., 2006-
NMCA-034, ¶ 24, 139 N.M. 274, 131 P.3d 661 (filed 2005) (stating that
“amendment should be allowed in the absence of a showing of dilatory faith,
undue delay, bad motive on the part of the movant, repeated failure to cure
deficiencies by previous amendments, undue prejudice to opposing party, or
futility of the amendment”). The Astros and Matranga also argued that they would
be prejudiced by the proposed amendment because it would substantially change
the theory of liability against them and require “significant new preparation.”
{39} We agree that allowing the amendment would have prejudiced the Astros
and Matranga. Plaintiffs’ first amended complaint did not allege any intentional
torts against the Astros and Matranga. Instead, the first amended complaint alleged
that “a ball was hit directly into the left field picnic tables at Emilio Crespin by
Dave Matranga,” that “Matranga and other players continued hitting balls into the
picnic area[,] scattering the visitors for cover,” and that Emilio suffered injuries
“[a]s a proximate result of the negligence.” The first amended complaint further

alleged that “Matranga ignored his duty to exercise ordinary care as he directed the
ball into the occupied picnic area” and that the Astros “authorized, participated in
or ratified [Matranga’s] negligent conduct.” These allegations are couched in
terms of negligence rather than intentional acts. The first amended complaint
repeatedly referenced the “negligence” of Defendants. Thus, the proposed
amendment would have added entirely new intentional tort claims against the
Astros and Matranga after the parties had briefed and argued the summary
judgment motions addressed to Plaintiffs’ original negligence theory.
{40} Plaintiffs claim that the Astros and Matranga had notice from the first
amended complaint that Plaintiffs were attempting to allege intentional tort claims
because the first amended complaint alleged that “Matranga was wanton and
showed an utter indifference to or conscious disregard for the safety of [ ]
Plaintiffs.” We are not persuaded. The quoted language is associated with claims
for punitive damages. See UJI 13-1827 NMRA (explaining that punitive damages
may be awarded for “wanton” conduct and that “[w]anton conduct is the doing of
an act with utter indifference to or conscious disregard for a person’s . . . safety”).
We know of no intentional tort that has elements employing similar
characterizations. Consequently, we conclude that the Astros and Matranga would
have been prejudiced by the proposed amendment and therefore, that the district
court did not abuse its discretion in denying Plaintiffs’ motion to amend.
CONCLUSION

{41} For the foregoing reasons, we reverse summary judgment in favor of the
Isotopes and the City, we affirm summary judgment in favor of the Astros and
Matranga, and we affirm the district court’s denial of Plaintiffs’ motion to amend
their complaint.
{42} IT IS SO ORDERED.
CYNTHIA A. FRY, Chief Judge
I CONCUR:
MICHAEL E. VIGIL, Judge
RODERICK T. KENNEDY, Judge (concurring in part, dissenting in part).

KENNEDY, Judge (concurring in part, dissenting in part).
{43} My colleagues reject nearly one hundred years of American jurisprudence
today. By refusing to adopt the baseball rule, they isolate our state from others
having already considered the matter and ignore the clear sign post provided by our
Supreme Court in McFatridge, 69 N.M. at 271, 365 P.2d at 918. I believe that the
baseball rule adequately establishes a reasonable standard of care that may be
followed as a matter of law. The majority slides from a legal standard to one that
promotes fact-based uncertainty where such uncertainty does not belong.
{44} The majority opinion stakes much of its argument on the idea that New
Mexico juries are capable of determining for themselves whether, in a given factual
scenario, a stadium operator reasonably protects its patrons from harm. I agree,
insofar as juries determine whether the facts of any given case violate a particular
duty of care. But the issue of whether a party owes a duty of care to another is a
matter of law, not fact, and such conclusions are clearly left in the hands of New
Mexico’s courts. Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990)
(holding that “[t]he existence of a duty is a question of policy to be determined
with reference to legal precedent, statutes, and other principles comprising the
law”); Schear v. Bd. of County Comm’rs, 101 N.M. 671, 672, 687 P.2d 728, 729
(1984) (holding that “[w]hether a duty exists is a question of law for the courts to
decide”). Thus, as the court held in Turner v. Mandalay Sports Entertainment,

LLC, 180 P.3d 1172, 1175-76 (Nev. 2008), the baseball rule “does not eliminate the
stadium owner’s duty to exercise reasonable care under the circumstances . . .
rather, it defines that duty in detail.” Id. (footnote omitted). The majority, by
putting the legal question to the jury, reverse the batting order. The existence of a
duty is the standard a jury applies to the facts, not an ad hoc judgment as invited by
the majority.
{45} A specific duty founded upon what constitutes reasonable care has been
well-established for this exact purpose—the conduct of baseball games. The
majority’s rejection of the baseball rule places New Mexico in isolation from most
other states that have considered it. American jurisdictions overwhelmingly
embrace some form of the rule, holding that a stadium owner’s duty to spectators is
limited to screening the dangerous area behind home plate. Sciarrotta v. Global
Spectrum, 944 A.2d 630, 632 (N.J. 2008); Turner, 180 P.3d at 1175-76; Lawson ex
rel. Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013, 1015 (Utah 1995); Arnold
v. City of Cedar Rapids, 443 N.W.2d 332, 333 (Iowa 1989); Powless v. Milwaukee
County, 94 N.W.2d 187, 189 (Wis. 1959); Morris v. Cleveland Hockey Club, 105
N.E.2d 419, 426 (Ohio 1952); Erickson v. Lexington Baseball Club, 65 S.E.2d 140,
141 (N.C. 1951); Quinn v. Recreation Park Ass’n, 46 P.2d 144, 146 (Cal. 1935) (in
bank); Brisson v. Minneapolis Baseball & Athletic Ass’n, 240 N.W. 903, 904
(Minn. 1932); Kavafian v. Seattle Baseball Club Ass’n, 181 P. 679, 679 (Wash.

1919) (en banc) (per curiam); Pakett v. The Phillies L.P., 871 A.2d 304, 307-08
(Pa. Commw. Ct. 2005); Benejam, 635 N.W.2d at 223; Maytnier, 225 N.E.2d at 84;
Hunt v. Thomasville Baseball Co., 56 S.E.2d 828, 829 (Ga. Ct. App. 1949); Lorino
v. New Orleans Baseball & Amusement Co., 133 So. 408, 409 (La. Ct. App. 1931);
Crane v. Kansas City Baseball & Exhibition Co., 153 S.W. 1076, 1077 (Mo. Ct.
App. 1913). As the court stated in Benejam, “Our review of precedents from other
jurisdictions finds overwhelming, if not universal, support for the [baseball] rule
that [the] defendant advocates.”2 Benejam, 635 N.W.2d at 221 (emphasis added)
(footnote omitted).
{46} Each of the states contiguous to New Mexico have likewise adopted some
form of the baseball rule. See Colorado Baseball Spectator Safety Act of 1993,
Colo. Rev. Stat. Ann. § 13-21-120 (1994) (statutorily adopting the baseball rule);
Bellezzo v. State, 851 P.2d 847, 852-53 (Ariz. Ct. App. 1992); McNiel, 268 S.W.2d
at 246. At least three other states have gone so far as to extend the rule to ice
hockey arenas. Modec v. City of Eveleth, 29 N.W.2d 453, 456 (Minn. 1947);
Ingersoll v. Onondaga Hockey Club, 281 N.Y.S. 505, 508 (N.Y. App. Div. 1935);
Morris v. Cleveland Hockey Club, 105 N.E.2d 419, 426 (Ohio 1952). And still
others have defined reasonable duties to spectators at automobile racing events,
Capital Raceway Promotions, Inc. v. Smith, 322 A.2d 238 (Md. Ct. Spec. App.
21The baseball rule does not require the jurisdiction to observe assumption of
the risk. Indeed, many comparative fault jurisdictions have adopted it. See
Neinstein v. Los Angeles Dodgers, Inc., 229 Cal. Rptr. 612 (1986); Kavafian, 181
P. at 679.

1974), and wrestling matches, Davis v. Jones, 112 S.E.2d 3 (Ga. Ct. App. 1959).
But perhaps most persuasive is the opinion of our own Supreme Court.
{47} McFatridge, involved a suit filed by a spectator to a Harlem Globetrotter
game in Tucumcari, New Mexico. Among other allegations, the plaintiff claimed
that the defendant team owner was negligent in not protecting the plaintiff from
being struck in the face with a basketball. 69 N.M. at 272-73, 365 P.2d at 919.
After a jury verdict for the plaintiff, the defendant appealed. Id. He urged the
court to recognize the baseball rule and apply it to basketball games. Id. at 276,
365 P.2d at 921. The Court refused to extend the rule, but it did so only after
explaining the rule’s unique applicability to the game of baseball.
That there is danger from being . . . struck by balls . . . in certain
locations at baseball games which would be known to fans of the
game is clear and from this fact arises the custom to protect the areas
of greatest danger, and the rule as stated by the note writer3 . . . we are
not advised of any similar danger being present at basketball games[.]
Id. at 277, 365 P.2d at 922. Thus, although not a formal adoption of the baseball
rule, our Supreme Court clearly noted the rule’s general acceptance as an American
“custom” and considered at least some of the several reasons for its acceptance. In
distinguishing the rule between baseball and basketball, the Court clearly asserted
32It is generally held or recognized that where a spectator who has
knowledge of the game of baseball is given a choice between seats that are
protected by screens and those that are not, and elects, or by reason of the protected
seats being filled, is required, to sit in the unscreened area of the stands, he
thereby . . . accepts the reasonable hazards inherent in and incident to the game,
and may not recover for injuries received from batted or wildly thrown balls.
McFatridge, 69 N.M. at 276, 365 P.2d at 922 (internal quotation marks and citation
omitted).

the rule’s applicability to baseball. The current writers of American Law Reports
agree. They cite McFatridge with the parenthetical “(apparently recognizing rule)”
immediately afterward. James L. Rigelhaupt, Jr., Annotation, Liability to
Spectator at Baseball Game Who Is Hit by Ball or Injured as Result of Other
Hazards of Game, 91 A.L.R.3d 24, § 3[a] (1979). We should unequivocally adopt
the rule here.
{48} “Spectators who attend a sporting event often run the risk of injury from foul
balls, errant pucks, clashing bodies, teeter-tottering stands, and more.” Walter T.
Champion, Jr., “At the Ol’ Ball Game” and Beyond: Spectators and the Potential
for Liability, 14 Am. J. Trial Advoc. 495, 496 (1991). Indeed, such risks compel
many spectators to attend sporting events in the first place, and many a baseball fan
attends in the hope of walking away with a home-run or foul ball. But when the
majority’s opinion arrives at its logical conclusion, a specific duty of care that has
remained intact for baseball falls to a general rule that does not recognize the
necessary factual distinction between a general obligation of care and one
developed over years for the specific application. A fair balance has already been
struck as a matter of law; no duty was breached. While tragic in the extreme, the
injuries suffered in this case did not result from any negligence in the conduct of
the game or design of the stadium.
{49} I would affirm the district court in all respects and concur with my
colleagues only in those issues where they affirm the district court.

RODERICK T. KENNEDY, Judge