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An unidentified usher told the girl and her stepfather to wait near the right field foul pole in the flag court, according to the lawsuit. (The Daily Record/Maximilian Franz)

Orioles, Stadium Authority sued after ball fractures child’s skull

The family of a 10-year-old girl hit in the head by a baseball during batting practice at Oriole Park at Camden Yards has filed suit against the Baltimore Orioles and the Maryland Stadium Authority.

Jennifer Dempsey was struck “directly in the face” by a ball last August while standing near the right field foul pole in the flag court, according to the lawsuit, filed Monday in Baltimore City Circuit Court. She was taken to the Johns Hopkins Hospital where she underwent nine hours of emergency surgery for a fractured skull, broken cheekbones and other injuries, the lawsuit states.

“This permanently changed her life,” said Raymond L. Marshall, one of the family’s lawyers.

Dempsey suffered a traumatic brain injury and has experienced personality changes and problems with her vision as a result of her injuries, added Marshall, of Chason, Rosner, Leary & Marshall LLC in Towson.

Dempsey and her stepfather, Joseph Kraft, arrived at an Aug. 23 game between the Orioles and Oakland Athletics several hours before the first pitch “in order to browse Eutaw Street and take in the stadium,” according to the lawsuit.

When they arrived at the flag court, an unidentified usher told them they had to wait for the stadium to open and directed them toward the foul pole to wait, according to the complaint. Dempsey was hit by a line drive over the right field scoreboard off the bat of A’s outfielder Coco Crisp, according to the lawsuit.

“There was simply no way a child of her age could assume risk of being hit by a ball, especially when the child cannot see the ball and was directed to the place to stand by the stadium usher,” the lawsuit states. “There is nothing a child in Jennifer’s circumstances could have done in order to protect herself.”

The lawsuit is the first of its kind since Oriole Park at Camden Yards opened in 1992, according to David Paulson, a spokesman for the Office of the Maryland Attorney General. And there might be good reason for that, according to sports law professors: Plaintiffs have a difficult time winning cases involving injuries sustained while at a baseball stadium.

Many state courts rely on “the Baseball Rule,” whereby stadium owners are not liable for injuries caused by a thrown or hit ball. The language is often printed on the backs of tickets; the Orioles’ ticket states “the holder assumes all risk and danger incidental to the game of Baseball” and the league, teams and players are not liable for damages or personal injuries.

“The trump card is typically assumption of risk,” said Michael Gilleran, executive director at The Institute of Sports Law and Ethics at Santa Clara Law in California.

But use of “the Baseball Rule” is not uniform across the country. Last year, the Idaho Supreme Court allowed a fan who lost an eye after getting hit by a foul ball to seek damages in a jury trial from the Boise Hawks, a minor league affiliate of the Chicago Cubs. And the Indiana Supreme Court is also considering whether a woman who lost an eye at a minor league game can recover damages after a lower court dismissed her lawsuit prior to trial.

Most cases involve a fan in his or her seat and getting hit with a foul ball. But Marshall, Dempsey’s lawyer, said his client’s case differs from the other cases because the girl and her stepfather were told where to stand.

“If the Orioles want to do that, they should put them in a safe and protected area,” Marshall said.

Gilleran, who also teaches sports law at the University of San Francisco, said Dempsey’s age might also play a factor in the case moving forward.

“Most courts have been reluctant to reward adults for harm they suffer for what they should have, could have and would have known might happen,” he said. “Kids throw a twist into this.”

The lawsuit seeks more than $75,000 in damages for negligence.

Representatives from the Orioles did not return requests for comment. The Maryland Stadium Authority referred questions to Paulson at the attorney general’s office, who declined to comment on the lawsuit because the litigation is pending.

Marshall said the Athletics reached out to Dempsey and her family and offered to meet them when the team returns to Baltimore in June. The Orioles have not reached out to Dempsey since the incident, he said.