¶ 1 Nаncy and James Romeo appeal from the order sustaining preliminary objections and dismissing their complaint. We affirm.
¶ 2 On July 13, 1998, appellants, who reside in Ohio, traveled to Pittsburgh with their two sons to attend a Pittsburgh Pirates baseball game at Three Rivers Stadium. Complaint, 2/09/01, at 3-5. Before doing so, appellants contacted appellee and purchased tickets to the game. Id. at 5, 9-10. The back of these tickets contained a disclaimer, which stated that ticket holders assumed the risk of certain dangers during the course of the game, including batted balls. Id. at Exhibit A.
¶ 3 When appellаnts arrived, they presented the tickets, entered the stadium, and sat in the seats designated by their tickets. Id. at 5. Their seats were located in a field box, six rows from the field on the third baseline in field box seats, Section 73, Row F, Seats 5 through 8. Id. While protective screening was located behind home plate, no screening, netting, or other barrier shielded appellants’ seats from the field. Id.
¶4 During the course of the baseball game, Ms. Romeo turned her head briefly to the left, away from the action on the field. Id. When she turned back toward home plate, a batted ball struck her in thе face and mouth. Id. As a result, she suffered a variety of injuries, including, inter alia, the permanent loss of one of her teeth, nerve damage to another tooth, cuts and lacerations to her mouth, headaches, and nausea. Id. at 5-6.
¶ 5 On February 9, 2001, appellants filed a Complaint in Civil Action against appel-lee alleging liability for Ms. Romеo’s injuries based on numerous legal theories. Specifically, appellants assert that appellee was negligent, strictly liable, liable for breach of contract, liable for breach of warranty, and liable for violating the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) and/or Plain Language Consumer Contract Act (“PLCA”). Appellee filed Preliminary Objections pursuant to Pa.R.C.P. 1028, arguing that none of appellants’ allegations stated a claim upon which relief could be granted. On April 9, 2001, the trial court issued an
1. Does a business which stages entertainment known as “Major League Baseball”, have any duty whatsoever under a negligence, assumed • duty, strict liability, and/or contract thеory of law, regarding its knowing exposure of its business invitees sitting in unprotected areas of the business premises to the risk of serious personal injury from line-drive foul balls?
2. Where during the ticket selling process such a business fails to reasonably advise its customers of such a risk, selectively protеcts through screening only those patrons paying the highest prices, and then adds a “fine print” disclaimer to the reverse of admission tickets, has that business violated the Pennsylvania Unfair Trade Practices Act and/or the Pennsylvania Plain Language Consumer Contract Act?
Appellant’s Brief at 2.
¶ 6 Our standard of review for preliminary objections is well settled.
All material facts as well as all inferences reasonably deducible therefrom are admitted 'as true for the purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where doubt exists as to whether a demurrer should be sustained, this doubt must be resolved in favor of overruling it.
Muhammad v. Strassburger,
Negligence
¶ 7 The operator of a place of amusement is “not an insurer of his patrons,” and therefore, patrons will only be able to recover for injuries caused by the operator’s failure to exercise “reasonable care in the construction, maintenance, and management of the faсility.”
Jones v. Three Rivers Management Corp.,
¶8 In light of these principles, Pennsylvania Courts have formulated the “no-duty” rule which provides that operators of a baseball stadium, amusement рark, or other such amusement facilities have no duty to protect or to warn spectators from “common, frequent, and expected” risks inherent in the activity.
Hughes v. Seven Springs Farm, Inc.,
By voluntarily proceeding to encounter a known or obvious danger, the invitee is deemed to have agreed to accept the risk and to undertake to look out for himself.... Thus, to say that the invitee assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers.
Carrender v. Fitterer,
¶ 9 On several occаsions, this Court specifically considered the liability of a baseball stadium operator for injuries sustained by a patron hit by a foul ball during a baseball game. In a number of early cases, we held that spectators may not recover because they assume this risk of
¶ 10 During each and every baseball game, foul balls regularly careen into the grandstand and are oftentimes even caught by spectators.
See Schentzel,
¶ 11 We reached a similar conclusion in
Iervolino
where a patron at a Pittsburgh Pirates baseball game was hit by a foul ball while sitting seven or eight rows behind the first baseline.
Iervolino,
¶ 12 With a few minor exceptions, the assumption of risk doctrine has since been abolished in Pennsylvania, and as previously discussed, the Pennsylvania Supreme Court recast the assumption of risk analysis of
Schentzel
and
Iervolino
in terms of the “no-duty” rule.
Jones,
¶ 13 Appellants argue that this shift in
Jones
from an assumption of risk analysis to a “no-duty” analysis rеnders
Schentzel
and
Iervolino
devoid of precedential value. Appellants severely misinterpret
Jones.
The “no-duty” rule set forth in
Jones
clearly incorporates the concept of assumption of risk utilized in earlier cases. The passage from Justice Robert’s opinion in
Carrender,
discussed above, reinforces this interpretation.
See Carrender,
¶ 14 In turning now to the facts of the present case, we conclude that the “no-duty” rule applies, because the risk of being struck by a foul ball while sitting in the bleachers is exactly the type of “common, frequent, and expected” risk inherent in a baseball game. As both Schentzel and Iervolino held, one need not be an avid baseball fan to appreciate the risk that a batted ball can and will enter the grandstand during the course of a game. As a result, under Jones, appellee had no duty to protect appellants from or to warn them about the risk of injury from a foul ball.
¶ 15 This case is clearly distinguishable from
Jones
where the Supreme Court found the “no-duty” rule inapplicable, beсause the risk of being hit by a ball in the interior concourse was not a common one, inherent to the game. Here, on the other hand, appellants faced the same basic risk as the spectators in
Schentzel
and
Iervoli-no:
being hit by a foul ball while sitting in the stands. The Court in
Jones
expressly
¶ 16 Appellants further contend that even if the “no-duty” rule applies, appellee somehow lost thе benefit of that rule by installing protective screening in some areas of the bahpark and not others. Their reliance on Restatement (Second) of Torts § 323 and
Morena v. South Hills Health System,
One who undertakes, gratuitously or for consideration, tо render services to another which he should recognize as necessary for the protection of another’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if ... (b) the harm is suffered because of the other’s reliance upon the undertaking.
When appellee placed a protective screen behind home plate, it did not assume a duty to provide netting to protect all spectators from foul balls. Such a conclusion would lead to the absurd result of screens encircling the entire field. Since appellants’ seats were located on the third base-fine, they did not reasonably rely on the lone screen behind home plate for protection. Therefore, section 323 does not apply.
Remaining Theories of Liability
¶ 17 Appеllants attempt to fit their case into four alternative theories of liability: strict liability, breach of contract, breach of warranty, and violation of UTPCPL and PLCA. Despite an artfully pled complaint, we conclude that appellants are not entitled to relief.
¶ 18 In order to state a
prima facie
claim for striсt products liability, appellants must establish the elements set forth in Restatement (Second) of Torts § 402A.
Phillips v. Cricket Lighters,
¶ 19 Appellаnts also attempt to define a baseball game as an ultrahazardous or “abnormally dangerous” activity subject to strict liability. This claim is similarly without merit. It is well established that “abnormally dangerous” activities include those few hazardous activities that not only create a serious risk of рhysical harm, but which are unusual due to their nature or surrounding circumstances. Restatement (Second) of Torts §§ 519 and 520, comment f;
Painter v. Pennsylvania Electric Co.,
¶ 20 Appellants further assеrt claims for breach of contract, breach of warranty, and violations of UTPCPL and PLCA arising out of the alleged contract they entered into with appellee upon purchasing their tickets. Even if we were to assume that a contract existed between these partiеs, that contract would be subject to the limitations contained in the disclaimer printed on the back of the ticket. This warning expressly stated that
¶21 Appellant’s contention that appellee breached an implied covenant of good faith contained in the allegеd contract fails to state a claim upon which relief can be granted. While Pennsylvania Courts recognize that all contracts contain an implied covenant of good faith, it has no applicability to the present case. It would strain logic to rule that a stadium oрerator acted in bad faith by admitting an individual to watch a baseball game where there was an obvious risk she would be struck by a foul ball.
¶22 Appellant has further failed to state a claim that appellee breached an implied warranty of safety. We stated above that the operator of a baseball stadium or other amusement activity is not an insurer of his patrons, and to impose an implied warranty of safety runs counter to this principle.
See Jones,
¶ 23 Appellants’ final theory, that appel-lee violated the UTPCPL and PLCA, similarly fails to state a claim upon which relief may be granted. Specifically, appellants claim that appellee did not adequately warn them of this danger and that the waiver of liability for injury caused by foul balls fаiled the readability test.
¶ 24 In order to state a claim under the UTPCPL, a plaintiff must allege one of the “unfair or deceptive practices” set forth in 73 P.S. § 201-2(4)(i)-(xxi). 73 P.S. § 201-3. In considering these causes of action it is important to remember that “[t]he general purpose of the UTPCPL is to protect the public from fraud and unfair or deceptive business practices.”
Lennon v. Wyeth-Ayerst Laboratories, Inc.,
As we have repeatedly stated, appellee had “no-duty” to warn appellants about the risk of foul balls, and therefore nothing appellee did or did not do can be characterized as a “dеceptive business practice.” This situation is not one against which the law was designed to protect. Even if the UTPCPL required appellee to warn spectators, we would rule that the warning printed on the reverse side of the admission ticket was sufficient. The ticket is not a complex document that appellants needed to closely examine in order to locate the warning or understand its terms. The language of the warning clearly addressed the risk spectators faced from batted balls, and other than an advertisement, it was the only thing printed on the back of the ticket. Therefore, appellants’ final theory also fails to state a claim upon which relief can be granted.
¶ 25 Order affirmed.