JEANE HOBBY and KEITH HOBBY,
Plaintiffs,
v
.
CITY OF DURHAM and DURHAM BULLS BASEBALL CLUB, INC.,
Defendants.
R. Bradley Miller, for plaintiffs-appellants.
Smith, Helms, Mulliss & Moore, L.L.P., by Alan W. Duncan and
Allison Overbay Van Laningham, for defendants-appellees.
THOMAS, Judge.
Plaintiffs, Jeane Hobby and her husband, Keith Hobby, appeal
from an order dismissing their complaint against defendants, the
City of Durham and the Durham Bulls Baseball Club, Inc.
The complaint, which is based on a claim that Ms. Hobby was
injured by a foul ball during a Durham Bulls baseball game, was
determined not to state a claim upon which relief can be granted.
We affirm the trial court.
Plaintiffs contend Ms. Hobby was seated in the stands along
the first line base at the Durham Bulls Athletic Park in Durham,
North Carolina. The roof in that section was supported from the
rear by exposed beams. A foul ball fell over the roof, bounced off
one of the beams and struck her in the back of the head. In their
complaint, plaintiffs claim that Ms. Hobby suffered permanent braininjury as a result. They further allege defendants “were negligent
in failing to provide netting or padding, or take any other measure
to prevent baseballs from bouncing off the exposed support
structure for the roof or overhang and into the seating area so
that spectators might be hit from behind.”
Defendants answered, in part contending Ms. Hobby assumed the
risk of injury as stated on her baseball admission ticket and that
as a holder of the ticket she waived any right to recover. They
allege the ticket included the following: “The holder of this
ticket assumes all risk and danger incidental to the game of
baseball, including specifically but not exclusively the danger of
being injured by wild thrown and batted balls, and agrees that
management is not liable for injuries resulting from such cases.”
Defendants filed a motion to dismiss pursuant to N.C. Gen. Stat. §
1A-1, Rule 12(b)(6) (2001). In an order dated 11 January 2001, the
trial court granted defendants' motion. Plaintiffs appeal.
Because plaintiffs appeal from a Rule 12(b)(6) dismissal, we
treat all of plaintiffs' factual allegations as true. See Hargrove
v. Billings & Garrett, Inc., 137 N.C. App. 759, 529 S.E.2d 693
(2000).
The standard of review of an order dismissing
a complaint for failure to state a claim upon
which relief can be granted . . . is to
determine whether, as a matter of law, the
allegations of the complaint, treated as true,
are sufficient to state a claim upon which
relief may be granted under some legal theory.
A complaint may be dismissed pursuant to Rule
12(b)(6) if no law exists to support the claim
made, if sufficient facts to make out a good
claim are absent, or if facts are disclosed
which will necessarily defeat the claim.
Id. at 760-61, 529 S.E.2d at 694 (citing Shell Island Homeowners
Ass'n v. Tomlinson, 134 N.C. App. 217, 225, 517 S.E.2d 406, 413
(1999)) (internal citations and quotations omitted). In addition,
“[s]uch motion is properly allowed when the factual allegations
fail as a matter of law to state the substantive elements of some
legally recognized claim.” Derwort v. Polk County, 129 N.C. App.
789, 791, 501 S.E.2d 379, 381 (1998). Here, plaintiffs have
brought a negligence claim against defendants. “To establish a
prima facie case of actionable negligence, a plaintiff must allege
facts showing: (1) defendant owed plaintiff a duty of reasonable
care; (2) defendant breached that duty; (3) defendant's breach was
an actual and proximate cause of plaintiff's injury; and (4)
plaintiff suffered damages as a result of defendant's breach.”
Winters v. Lee, 115 N.C. App. 692, 694, 446 S.E.2d 123, 124, disc.
rev. denied, 338 N.C. 671, 453 S.E.2d 186 (1994). “An inherent
component of any ordinary negligence claim is reasonable
foreseeability of injury.” Id. This requires the plaintiff to
sufficiently allege that “a man of ordinary prudence would have
known that such or some similar injurious result was reasonably
foreseeable from this negligent conduct.” Hart v. Ivey, 332 N.C.
299, 305, 420 S.E.2d 174, 178 (1992).
Plaintiffs argue that the circumstances which resulted in Ms.
Hobby's injury were not “common hazards incident to the game,” in
that the ball which hit Ms. Hobby bounced over the stadium roof and
hit her from behind. However, our Supreme Court held in Cates v.
Exhibition Co., 215 N.C. 64, 66, 1 S.E.2d 131, 133 (1939), that [t]hose operating baseball parks or grounds
are held to have discharged their full duty to
spectators in safeguarding them from the
danger of being struck by thrown or batted
balls by providing adequately screened seats
for patrons who desire them, and leaving the
patrons to their choice between such screened
seats and those unscreened.
“[S]pectator[s], with ordinary knowledge of the game of baseball .
. . accept[] the common hazards incident to the game . . . and
ordinarily there can be no recovery for an injury sustained as a
result of being hit by a batted ball.” Erickson v. Baseball Club,
233 N.C. 627, 629, 65 S.E.2d 140, 141 (1951). We note that Ms.
Hobby did not choose to sit in a seat behind the protective
netting; she elected to sit in a seat with some exposure to the
risks of the game. In Erickson, 233 N.C. 627, 65 S.E.2d 140, our
Supreme Court held that a ballpark was not negligent when a patron
was injured during a game while sitting in unprotected seats, even
though screened-in seats were already sold out when the patron
arrived at the park. Although a front protective screen might not
have protected Ms. Hobby from the injury alleged here, defendants
nonetheless discharged their duty to Ms. Hobby by providing a
screened section. Plaintiffs have failed to sufficiently allege
that the circumstances disclose any other negligent breach of duty
owed to plaintiffs. Accordingly, the order of the trial court
dismissing plaintiffs' claims against defendants is affirmed.
Affirmed.
Judges MARTIN and CAMPBELL concur.
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