Salevan v. Wilmington Park, Inc.

Superior Court of Delaware · 1950 · Torts

72 A.2d 239 (1950)

Updated July 23, 2026

Tortsnegligencelandowner liabilityadjacent highwayforeseeabilityreasonable precautionsbaseballs leaving parkpublic nuisance not per se

Facts

Defendant owned and operated a ball park on land adjacent to East Thirtieth Street in Wilmington and leased it for baseball games, including the game being played on the night of plaintiff's injury. Plaintiff was walking on the sidewalk along Thirtieth Street when she was struck in the back by a fast-moving baseball that came over the bleachers and out of the park near the point where the bleachers ended and a 10-foot fence began. Evidence showed that during an average game 16 to 18 foul balls entered Thirtieth Street and that 2 or 3 of those came over the 10-foot fence into the area where plaintiff was walking. Defendant had installed a grandstand, bleachers, and fences based on expert advice, but baseballs still regularly left the park into the street.

Issue

Whether the owner of a baseball park adjacent to a public street is negligent for failing to take additional protective measures when baseballs regularly leave the park and enter the street, injuring a lawful passer-by. More specifically, whether defendant had notice, actual or constructive, that its existing barriers were insufficient and thus failed to exercise reasonable care.

Rule

The playing of baseball with the landowner's permission on land adjacent to a highway does not by itself create a public nuisance or make the landowner an insurer of the safety of persons using the highway. But because of the inherent nature of baseball, the landowner must take reasonable precautions to protect the traveling public, and what precautions are reasonable depends on the facts and circumstances, including the game's past history at that location. The plaintiff bears the burden of showing that precautions were necessary and that the landowner failed to take them.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Lakefront Athletics, LLC owns a baseball field in Milwaukee bordering a public sidewalk. The field is enclosed by a 12-foot fence, and witnesses testify that during most home games several foul balls clear the fence and land on the same stretch of sidewalk where pedestrians routinely pass. Naomi Cruz is struck while walking there one evening.

If Naomi sues Lakefront Athletics for negligence, which is the strongest basis for liability?

Explanation. The majority rule is that baseball next to a highway or sidewalk is not a nuisance per se and does not make the landowner an insurer. But the landowner must take reasonable precautions when the inherent nature of the game and the past history at that location make harm to highway users foreseeable. Repeated balls entering the same pedestrian area show notice that existing protections are inadequate.