When animals attack...are baseball stadiums liable?

In a sign that a new curse may have descended on Fenway Park, a raptor attacked a 13-year old fan at Fenway park yesterday. The hawk descended upon the fan, who was on a tour of the park, and drew blood from her scalp.

Birds of prey have harmed fans at games before (and been sued for doing so), but those birds have generally been of the fluffy costume variety. And it is certainly true that one "who attends a baseball game as a spectator can properly be charged with anticipating as inherent to baseball the risk of being struck by a foulball while sitting in the stands during the course of a game." But is being attacked by a hawk an inherent part of watching a baseball game live? That would hardly seem to be the case.

As a result, were the fan to sue a baseball stadium it seems unlikely that the special "primary assumption of risk" notion would bar a lawsuit. Instead, the case would likely turn on whether a stadium owner has (1) any responsibility to protect fans from raptors and (2) whether the Red Sox failed to take steps that a reasonable stadium operator would take with respect to such birds.

Although I am far from an expert in hawk studies, I wonder whether the Red Sox do bear some responsibility here. A baseball park consists of grass manicured and tweaked to a level hardly found in nature. From the high perch provided atop the "monster" walls of the stadium, a bird of prey can see the smallest (in)field mouse and swoop in for attack. It seems to me perfectly logically that these artificially altered landscapes are a perfect hunting ground for hawks squeezed out of their natural habitats by McMansion expansion. If a stadium owner has created a sort of "hawk-attracting nuisance", should it not take some hawk repelling steps as well? This particular hawk was nesting in the rafters at Fenway, where it had laid an egg. How hard is that to spot, and to do something about?

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