GARY | A law firm representing a woman injured by a foul ball at a Gary SouthShore RailCats game has filed a petition seeking a transfer of the case to the Indiana Supreme Court.
On opening day in 2009, Juanita DeJesus was hit in the face by a foul ball and suffered facial fractures and blindness in her left eye.
DeJesus sued the team, alleging an obligation to protect visitors to the stadium from harm and negligence for not providing protective screening from first to third base.
A trial court judge allowed the lawsuit, but the Indiana Court of Appeals ruled against a trial and in favor of a summary judgment sought by the baseball team.
The appeals court said DeJesus regularly attended RailCats games and knew foul balls regularly flew into the seats. The 14-page ruling also said DeJesus had received warnings about foul balls at the game and could have bought seats behind the home plate screen.
Attorneys for DeJesus in recent weeks filed a petition to transfer her case to the high court, arguing the appeals court ignored evidence showing defective protective netting. Attorneys also said DeJesus was issued a ticket with a seat assignment for which there could be no refunds, exchanges or transfers.
DeJesus' attorney, Walter Alvarez, of Crown Point, said since the law provides for transfer to the Supreme Court and the Appellate Court espoused a new "limited duty rule" for Indiana, he believed it prudent to request the transfer.
"Personally, I feel on behalf of any client, a lawyer should use what is available to protect the interest of that individual, which in turn may relate to society as a whole," he said.
According to the transfer petition, DeJesus was sitting in an area where there was protective netting that included a gap used to throw T-shirts and other promotional materials to fans. DeJesus testified at her deposition the ball that struck her had flown through the gap.
An expert witness calculated DeJesus was sitting in a "danger zone" in which safety netting was required because of the high risk of a line drive, foul ball or broken bat flying into the stands at such a high speed no fan would reasonably be able to take evasive action to protect themselves.
The petition questions whether the court properly adopted the new limited duty rule, which states an operator of a baseball stadium has only a limited duty to provide screening behind home plate.
In adopting the rule, attorneys argue the court held the defendants had no duty to erect protective screening continuously from first to third base, contrary to expert testimony.