Father raises stakes in foul-ball lawsuit against Braves

ATLANTA -- The father of a 6-year-old girl whose skull was shattered by a foul ball at Turner Field has raised the stakes in his lawsuit against the Atlanta Braves: He has added Major League Baseball as a defendant even as the league is recommending extensions to safety netting at all 30 ballparks next year.

The league said this week that it is encouraging clubs to erect netting -- or another protective screen or barrier -- 70 feet down the foul lines from home plate. This would cover field-level seats to the dugouts, shielding fans there from line-drive foul balls. But it's not clear that even the extended netting, which in many cases will just reach the dugout, would have shielded Fred Fletcher's daughter from the ball that hit her.

Fletcher was sitting with his daughter, then 6, behind the visiting team's dugout -- an area unprotected by netting -- during a game on Aug. 30, 2010, at Turner Field. In the bottom of the fourth inning, Braves outfielder Melky Cabrera sliced a foul ball that struck the child in the head, fracturing her skull in 30 places and causing traumatic brain injury.

Two years later, Cabrera, who now plays for the Chicago White Sox, was suspended 50 games for testing positive for a performance-enhancing drug -- testosterone.

In the litigation, Fletcher's lawyers are also asking MLB to turn over documents from its investigations of players who used performance-enhancing drugs. They want to show jurors that juiced-up ballplayers hit balls harder,

giving fans even less time to get out of the way of foul balls driven into the stands.

In a statement Wednesday, the Braves said they plan to adjust the height of their current foul-line netting from 10 feet to 35 feet, the same height as the netting directly behind home plate.

"This increases the netting on the outer wings an additional 25 feet, giving fans additional options when purchasing their tickets," the statement said.

The team does not plan to extend the netting any farther down the foul lines. Nor did the Braves disclose any plans for SunTrust Park, the new stadium under construction in Cobb County. Field-level seats at SunTrust Park, which will open in 2017, will be even closer to the field than those at Turner Field.

Mike Moran, who represents the girl's father, said he had not had time to review the extensions to know whether, had they been in place in 2010, the child would have been shielded.

Braves, league failed to protect child, suit says Fletcher's lawsuit seeks damages for his daughter's injuries, her pain and suffering, the cost of her medical treatment, her diminished ability to work and her future lost earnings. The Braves and MLB are liable because they failed to use protective netting to shield the girl, despite knowing the dangers to fans in that area, the lawsuit contends.

In a recent court filing, Fletcher's lawyers said they previously declined to name MLB as a defendant because it was their understanding that the league had no role in decisions about netting at Turner Field. But since the suit was filed three years ago, the lawyers said, they have learned MLB was involved in setting requirements for the netting and that the Braves had submitted proposed changes to the league for review and approval.

Neither the Braves nor MLB had any comment on the litigation.

On Wednesday, baseball Commissioner Rob Manfred said that even though MLB clubs already warn fans about the dangers of batted balls and broken bats that fly into the stands, clubs should continue to explore ways to educate fans about it. Also, the commissioner's office will work with clubs and online ticket sellers to identify ways to tell customers which seats are -- and are not -- behind protective netting, he said.

If Fletcher's lawsuit against the Braves and MLB goes to trial in Fulton County State Court, the jury probably will not hear about MLB's new recommendations and any extensions of netting that are erected. This only makes sense, because otherwise companies would be reluctant to fix problems if they thought those very fixes could then be used against them at a trial, said Richard Freer, an Emory University law professor.

Steroid use: 'I guess you could see this coming' Bringing performance-enhancing drugs into the case is a fascinating litigation tactic, Freer said.

"Getting hit by a foul ball before the steroid era had potentially fatal consequences," he said. "But making note that balls are traveling even faster because they were hit by juiced-up players? I guess you could see this coming." The Braves previously sought to get Fletcher's lawsuit dismissed by invoking the so-called "Baseball Rule." The rule, in force in other states, says if a stadium operator provides adequate screening behind home plate and enough seats for spectators who want to sit there, it cannot be held liable for balls and bats that enter the stands and hurt people.

But a Fulton judge declined to adopt the rule and, in 2014, the Georgia Court of Appeals said it found no reason to reverse that decision.

In the Atlanta litigation, Fletcher's lawyers note that during the 2007 collective bargaining between MLB and the players association, the union asked the league to extend netting further down the foul lines to protect fans in areas such as where Fletcher's daughter would have been seated. But MLB rejected the request, the lawsuit said.

This story was originally published December 13, 2015 at 11:38 PM with the headline "Father raises stakes in foul-ball lawsuit against Braves ."