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Court sides with Red Sox in foul-ball injury lawsuit

To Boston Red Sox outfielder Darren Lewis, the pitch he swung at on a September evening six years ago was merely a foul ball, one he lined over his team's dugout while batting against Detroit Tigers pitcher Brian Powell.

But to Jane Costa of Stoughton, sitting some 20 rows behind the dugout at Fenway Park, it was a rocket that slammed into her face. The blur of a baseball fractured bones, bloodied her nose and mouth, and made her black out for what she later said seemed like an eternity.

Anyone who has watched a baseball game knows a foul ball can cause serious injury. But in a personal-injury lawsuit against the Red Sox, Costa said she hadn't been to Fenway since she was 8 and didn't even know what a foul ball was. She said the club should have issued more explicit warnings, beyond the fine print on the back of her ticket.

Yesterday, in the first ruling in 54 years by a Massachusetts appellate court involving a spectator hit by a baseball, a state Appeals Court panel sided with the Red Sox and said a judge was right to block the suit from going to trial.

The three-member panel said that even someone with scant knowledge of baseball should realize that "a central feature of the game is that batters will forcefully hit balls that may go astray from their intended direction."

"It is not disputed that, while passively watching the game, the plaintiff's life was forever changed by this tragic event," the panel said. Nonetheless, the Red Sox "had no duty to warn the plaintiff of the obvious danger of a foul ball being hit into the stands," the panel said.

Thomas J. Ostertag, senior vice president and general counsel in the commissioner's office agreed with the essence of the ruling.

"While we, of course, very much regret that the plaintiff was injured, the decision is consistent with opinions of courts in similar cases all over the country," he said.

After her injury, Costa, who is now 40, had to undergo reconstructive surgery that installed eight plates in her face, according to her lawyer James R. Burke. She has severe headaches and permanent nerve damage, and must take medication daily. Her lawsuit listed lost wages and medical expenses totaling $486,909.

She had been employed as a physical therapist and bartender at the time of the incident but has not been able to work much since then and gets government assistance for people with disabilities, Burke said. She gave up her house in Stoughton and moved to West Bridgewater.

Sobbing on the phone yesterday, Costa decried the ruling and skewered the Red Sox. "I'm more than angry. I was in critical condition," she said, adding that Red Sox management and players are "bickering over millions and millions of dollars to hit a ball, and when one of their fans get hurt, they don't care."

Burke, who had not seen the decision, expressed disappointment. "What the court has determined is that the Red Sox owe no duty to the fans because foul balls are open and obvious [dangers]," he said. "But who is the danger open and obvious to? The Boston Red Sox? Or a fan who has just come into a game, the second game in her lifetime, and was in her seat less than five minutes?"

Douglas Fox, a lawyer for the Red Sox, insisted that Costa's knowledge of baseball, or lack thereof, was irrelevant. "A person of average intelligence walking into a ballpark can see that one of the objects of the game is to make the ball go through the air, and you can't control the flight and direction of the ball once it leaves the bat," he said after the ruling.

Costa was struck by the ball on Sept. 11, 1998 after arriving late at a game with her sister and their boyfriends, according to court documents filed by Burke. The group was sitting on the first-base side, behind the Red Sox dugout.

In the bottom of the fifth inning, Lewis, a right-handed batter, faced Powell, a right-handed pitcher. On a count of one ball and two strikes, Lewis hit a foul ball that struck Costa, some 141 feet away.

Ronald R. Mourant, a Northeastern University engineering professor who studied a TV videotape of the incident and visited Fenway Park to take measurements, determined that the ball was traveling at least 90 miles per hour and rising when it struck Costa in the face, according to a memorandum in the court file.

Based on his calculations, it took 1.07 seconds for the ball to travel from Lewis's bat to Costa's seat, Mourant said, and she probably had less time to react because she wasn't expecting to be hit.

"There was no possibility that Ms. Costa could have reacted in time to avoid being struck by the foul ball," he said.

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