Salevan v. Wilmington Park, Inc. Sup. Ct. Of Del.,

45 Del. (6 Terry) 290, 72 A.2d 239 (1950)

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Nature of the Case

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Facts

D is the owner of land at the southwest corner of the intersection of Thirtieth Street and Governor Printz Boulevard in the City of Wilmington on which is located the ballpark in question. D maintains and rents of the ballpark and its facilities, for over eight years. The park of D is laid out so that the left field foul line runs parallel to Thirtieth Street approximately 160 feet from that street. Parallel to the left field foul line and Thirtieth Street is a fence which is 40 feet from the sidewalk running along the southerly side of Thirtieth Street. The grandstand behind the home plate and extending along the foul line between home plate and third base is 40 feet in height with a wire screen erected on its top 10 feet in height. At the easterly end of the grandstand are 20-foot high bleacher stands running parallel to the left field foul line and along the left field fence. Commencing at the end of the bleachers, the fence running parallel to Thirtieth Street is 10 feet in height. The distance from home plate to the beginning of the 10-foot fence is approximately 150 feet. P was walking on the sidewalk in an easterly direction with her daughter-in-law and grandson, aged 10 years. When she reached a point on the sidewalk roughly opposite the point where the bleachers end and the 10-foot fence begins, she was struck in the back by a baseball. P did not see the ball before it struck her. P's daughter-in-law, who was walking with P holding her right arm, testified that she did not see the ball prior to the time it struck P but that, immediately after the plaintiff was struck, she heard the announcer over the loudspeaker system within the park announce, 'Foul ball.' P's grandson testified that saw the ball which struck P come over the bleachers out of the ballpark. D did not seriously contest this testimony. Testimony was adduced that in the course of an average ball game, 16 to 18 foul balls come from inside the park into Thirtieth Street and, of them, an average of 2 or 3 foul balls come from within the park over the 10-foot fence and into the area along Thirtieth Street through which P was passing at the time of the injury. An average, 68 baseball games were played at Wilmington Park during the baseball season. P contends that D, as a landowner, has the duty to exercise reasonable care in the use of its land so as to prevent injury to travelers lawfully using the highways adjacent thereto. P contends that D had notice of the passage of baseballs outside of its park into East Thirtieth Street to the danger of persons using that public street and that the failure of D to take reasonable precautions to safeguard the public was negligence. D contends that the plaintiff has wholly failed to establish any negligence; that D had no notice of baseballs passing over the fence in question, and that D had taken whatever precautions were necessary under the circumstances for the protection of the public.