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Filing # 155307902 E-Filed 08/15/2022 11:48:35 AM
IN THE CIRCUIT COURT OF THE
TWENTIETH JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
CASE NO: 08-2018-CA-000181
CANDACE BOGART AS MOTHER
AND NATURAL GUARDIAN OF
CAMMON BOGART, II,
Plaintiff,
vs.
TAMPA BAY RAYS BASEBALL,
LTD. AND CHARLOTE COUNTY, A
POLITICAL SUBDIVISION OF THE
STATE OF FLORDIA,
Defendants. /
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON DEFENDANT TAMPA
BAY RAYS' AFFIRMATIVE DEFENSES NOS. 22-25 AND DEFENDANT CHARLOTTE
COUNTY’S AFFIRMATIVE DEFENSES NOS. 23-26
Plaintiff, CANDACE BOGART AS MOTHER AND NATURAL GUARDIAN OF
CAMMON BOGART, II, by and through her undersigned counsel, hereby files this Motion for
Summary Judgment on Defendant TAMPA BAY RAYS' Affirmative Defenses Nos. 22-25 and
Defendant CHARLOTTE COUNTY’S Affirmative Defenses Nos. 23-26, and states:
SUMMARY OF CLAIM
This lawsuit stems from a tragic incident at a Tampa Bay Rays Spring Training game
where a bat flew into the stands and struck Cammon Bogart in the head. Cammon was a three-
week-old baby at the time of the incident. Defendants permitted the bat to fly into the stands
because Defendants did not extend safety netting to the end of the dugout. Cammon suffers from
a traumatic brain injury, recurring post-traumatic seizures, and developmental delay.
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SUMAMRY OF ARGUMENT
Summary judgment should be granted against Defendants’ pre-injury waiver of liability
affirmative defenses for three reasons:
1) The pre-injury waiver must be strictly construed against the party seeking
enforcement. The waiver only applies to the ticket holder and Cammon was not a
ticket holder because he was under two years old.
2) The Florida Supreme Court in Kirton v. Fields held that pre-injury releases are
unenforceable against minors when it involves participation in a commercial activity,
such as in this case at Tampa Bay Rays Spring Training game.
3) The Florida Supreme Court held that the Doctrine of Assumption of Risk is not a
viable defense except for express assumption of risk by contract which is
unenforceable in this case pursuant to Cammon’s non-ticket holder status and Kirton
v. Fields.
4) Defendants’ alleged “Baseball Rule” is not a recognized defense under Florida law
Defendants’ pre-injury waivers of liability attempt to prevent Cammon - a minor
child - from having any remedy here, notwithstanding Defendants’ negligence.
FACTS
Defendants filed amended affirmative defenses based on exculpatory language on the
face of the ticket Ms. Bogart used to enter the March 23, 2017, Tampa Bay Rays Spring Training
game. Exhibit A – Charlotte County Amended Affirmative Defenses; Exhibit B – Tampa
Bay Rays Amended Affirmative Defenses. The amended affirmative defenses based on the
ticket allege that Ms. Bogart:
a) assumed all risk and danger incidental to the game of baseball (Ex, A - Aff.
Def. 22 for County, Exhibit B – Aff. Def. 21 for Rays),
b) was warned of the dangers of being injured by thrown bats (Ex, A - Aff. Def.
23 for County, Exhibit B – Aff. Def. 22 for Rays),
c) agreed Defendants are not liable and are held harmless for all injuries,
expenses, claims, and liabilities from ore related to any such causes (Ex, A -
Aff. Def. 24 for County, Exhibit B – Aff Def. 23 for Rays),
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d) pursuant to the Doctrine of Assumption of Risk, was aware of potential risks
of attending a baseball (sic) where Plaintiff was located that bats could come
into the stands and it would be prudent to pay attention for such to occur
and/or avoid such area (Ex, A - Aff. Def. 25 for County, Exhibit B – Aff. Def.
24 for Rays),
e) pursuant to the “Baseball Rule,” was aware of the potential of balls, bats, or
other objects coming from the field of play into the stands and assumed such
risk (Ex, A - Aff. Def. 26 for County, Exhibit B – Aff. Def. 25 for Rays)
I. THE EXPRESS LANGUAGE OF THE EXCULPATORY CLAUSE MUST BE
STRICTLY CONSTRUED AGAINST THE PARTIES SEEKING
ENFORCEMENT AND FOUND UNENFORCEABLE AGAINST CAMMON
While summary judgment should be granted solely on the Florida Supreme Court law
which makes pre-injury releases unenforceable against minors, summary judgment is also
required based on the language of the pre-injury waiver. Pre-injury waivers are generally
disfavored and must be strictly construed against the party seeking enforcement.
“An exculpatory clause purports to deny an injured party the right to recover damages
from the person negligently causing his injury.” Kitchens of the Oceans, Inc. v. McGladrey &
Pullen, LLP, 832 So. 2d 270, 272 (Fla. 4th DCA 2002) (quoting O'Connell v. Walt Disney World
Co., 413 So. 2d 444, 446 (Fla. 5th DCA 1982)). “Exculpatory clauses are disfavored in the law
because they relieve one party of the obligation to use due care and shift the risk of injury to the
party who is probably least equipped to take the necessary precautions to avoid injury and bear
the risk of loss.” Loewe v. Seagate Homes, Inc., 987 So. 2d 758, 760 (Fla. 5th DCA 2008).
Further, such clauses “will be strictly construed against the party claiming to be relieved of
liability.” Murphy v. Young Men's Christian Ass'n of Lake Wales, Inc., 974 So. 2d 565, 567–68
(Fla. 2d DCA 2008). “‘Such clauses are enforceable only where and to the extent that the
intention to be relieved was made clear and unequivocal in the contract, and the wording must be
so clear and understandable that an ordinary and knowledgeable party will know what he is
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contracting away.’” Id. at 568 (quoting Southworth & McGill, P.A. v. S. Bell Tel. & Tel. Co., 580
So. 2d 628, 634 (Fla. 1st DCA 1991)).
The pre-injury waiver at issue states:
The holder of this ticket voluntarily assumes all risk and danger incidental to the
game of Baseball, or other event for which this ticket is issued, whether occurring
prior to, during, or subsequent to the actual playing of the game, including
specifically (but not exclusively) the danger of being injured by thrown bats,
fragments thereof, and thrown and batted balls or other objects, and the holder, by
using this ticket, agrees that Major League Baseball (“MLB”), the American
League, the National League, the Tampa Bay Rays (“Club”), CBI-Rays LLC,
other participating clubs, Charlotte Sports Park (“Stadium”), Charlotte County,
and Tickets.com, including without limitation their respective players, other
employees and agents and all other individuals and entities affiliated with such
organizations, are not liable and are hereby held harmless by the holder for all
injuries, expenses, claims and liabilities resulting from or related to any such
causes...
(Ex. A and Ex. B).
Here, the waiver only applies to “the ticket holder” and is silent as to minors under two years
old or any other classifications of patrons. The waiver language does not expressly waive
liability for Defendants’ own negligence, nor does the ticket explicitly warn that Defendants
failed to extend the safety netting to the end of the dugouts.
i. The exculpatory language is expressly limited to “the holder of this ticket” and
does not apply to minors under two years old who are non-ticket holders
The explicit language of the ticket only applies to “the holder of this ticket.” The
exculpatory clause does not even mention minors under two years old or its applicability to
anyone other than the ticket holder. In this case, the holder of the ticket is Candace Bogart, not
the injured minor, Cammon Bogart. The pre-injury waiver is silent as to minors under two years
old.
The Tampa Bay Rays ticket policy does not require minors under two years old to have
an individual ticket to enter the stadium. (Exhibit C, Response to RFA #1 and #3). Cammon
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Bogart was only three weeks old at the time of the incident was not required to have his own
ticket to enter the stadium.
Florida law requires that the language of the waiver and assumption of risk be strictly
construed against the party seeking enforcement. The plane language reading of the exculpatory
language only applies to “the ticket holder” and does not expressly state that it applies to any
other classification. Minors under two years old, including Cammon, are outside the pool of
candidates for the release. The fact that the exculpatory language is limited to “the holder of this
ticket” coupled with the fact that Defendants did not require children under two years old to be a
ticket holder shows that Defendants expressly carved out the waiver’s applicability to anyone
other than the ticket holder.
Defendants did not extend the release to minors under two years old by virtue of not
making minors under two years old required to have a ticket for entry into the stadium. Although
Defendants maintained a policy which did not require minors under two years old to be ticket
holders, the language of the waiver does not explicitly state that it applies to anyone other than
the “holder of this ticket.” The language could have read that it applies to ticket holders and
accompanying minors under two years old, but it does not.
Therefore, the waiver of liability and assumption of risk cannot be enforced against
minors under two years old who are not ticket holders and who are not explicitly mentioned in
the exculpatory language.
ii. The pre-injury waiver does not clearly and unequivocally state that the safety
netting does not extend to the end of the dugout, nor does it expressly waive
liability for Defendants’ own negligence
The second reason that the exculpatory language cannot be applied to Cammon Bogart in
this case is because the language does not expressly warn that the safety netting does not extend
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to the end of the dugouts. Exculpatory clauses are enforceable only where and to the extent that
the intention to be relieved was made clear and unequivocal to understand what is being
contracted away. While the ticket language generally mentions dangers of thrown bats, it is silent
as to the location of safety netting or the fact that the safety netting does not extend to the end of
the dugout. Importantly, the exculpatory language does not clearly include a waiver of claims for
Defendants’ own negligence.
In Repor Bros., Inc. v. Moore, the court reversed the trial court's entry of final summary
judgment because “[a] contract of indemnity will not be construed to indemnify the indemnitee
against losses resulting from his own negligent acts unless such intention is expressed in clear
and unequivocal terms.” 83 So. 3d 903 (Fla. 2d. DCA 2012); quoting Univ. Plaza Shopping Ctr.,
Inc. v. Stewart, 272 So. 2d 507, 509 (Fla.1973) (citing 41 Am.Jur.2d, Indemnity, § 15).
“Contracts which attempt to indemnify a party for its own wrongful acts are viewed with
disfavor and will be enforced only if they express such intent in clear, unequivocal terms.”
S.E.F.C. Bldg. Corp. v. McCloskey Window Cleaning, Inc., 645 So. 2d 1116, 1116 (Fla. 3d DCA
1994). See also Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374
So. 2d 487 (Fla.1979); Skidmore, Owings and Merrill v. Volpe Constr. Co., 511 So. 2d 642 (Fla.
3d DCA 1987); Nat Harrison Assocs., Inc. v. Fla. Power & Light Co., 162 So. 2d 298 (Fla. 3d
DCA 1964).
Here, the purported waiver is rife with ambiguity and uncertainty. First, Defendants
cannot produce the actual ticket purportedly used by Candace Bogart. (Exhibit D, Def. Rays
Response to Request to Produce). The Tampa Bay Rays Director of Ticket Operations and
Assistant Director of ticket operations state that Candace could not have used a mobile ticket to
enter the stadium and purportedly produced an exemplar ticket which contained the ticket waiver
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language. However, Candace Bogart testified that used a mobile ticket which did not have the
waiver language on the ticket. (Exhibit E, Affidavit of Candace Bogart and Mobile Ticket). The
ticket used by Mrs. Bogart is significantly different than the alleged exemplar ticket:
.
Even if it is assumed that the exemplar ticket was used, the exculpatory provision appears
in illegibly small font in the bottom of the alleged ticket. (Exhibit F, Exemplar Ticket).
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The provision is not thorough or detailed. The waiver does not expressly release any
particular claim. Most significantly, it does not expressly release claims for Defendants’ own
negligence in clear, unequivocal terms and must be found unenforceable against Cammon
Bogart.
The exculpatory language is contradictory. The first sentence reads that the ticket holder
“voluntarily assumes all risk and danger incidental to the game of Baseball…” and then reads
that Defendants are “are not liable and are hereby held harmless by the holder for all injuries,
expenses, claims and liabilities resulting from or related to any such causes...”
The initial sentence clearly limits the exculpatory language to risk and danger incidental
to the game of baseball. Next, the waiver states that Defendants will be held harmless for all
injuries, expenses, claims, and liabilities resulting from or related to any such causes. The final
clause is contradictory to the initial clause and attempts to waive liability for any claim by any
cause, not just those claims incidental to the game of baseball. Due to the uncertainty on the face
of the ticket language, it must be found to be unenforceable.
II. FLORIDA SUPREME COURT LAW HOLDS THAT PRE-INJURY RELEASES
ARE UNENFORCEABLE AGAINST MINORS WHERE THE ACTIVITY
INVOLVES COMMERCIAL ACTIVITY
Even if the Court finds that the exculpatory language applies to Cammon although it is
not explicitly stated in the waiver, his mother’s purchase of her own ticket could not release
Defendants’ liability to Cammon as a matter of law and public policy.
In Kirton v. Fields, 997 So. 2d 349 (Fla. 2008), the Florida Supreme Court certified the
following question: “Whether a parent may bind a minor's estate by the pre-injury execution of a
release.” Id. at 350. The Court answered “no” and held that “a parent does not have the authority
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to execute a pre-injury release on behalf of a minor child when the release involves participation
in a commercial activity.” Id. (emphasis supplied).
In answering the certified question, the Court began by acknowledging that while parents
have authority to make decisions involving their minor children, the State also has a compelling
interest in protecting them. Under this concept of “parens patriae,” the State may usurp parental
control when appropriate. Id. at 353. The Court reasoned that the “decision to absolve the
provider of an activity from liability for any form of negligence (regardless of the inherent risk or
danger in the activity) goes beyond the scope of determining which activity a person feels is
appropriate for their child.” Id. at 357 (internal citation omitted). In acknowledging this, the
Court unequivocally concluded that “public policy concerns cannot allow parents to execute pre-
injury releases on behalf of minor children.” Id. at 354. Explaining further, the Court stated that
when a parent executes such a release and a child is injured, the provider of the activity escapes
liability while the parent is left to deal with the financial burden of an injured child. If the parent
cannot afford to bear that burden, the parties who suffer are the child, other family members,
and the people of the State who will be called on to bear that financial burden.
Therefore, when a parent decides to execute a pre-injury release on behalf of a minor
child, the parent is not protecting the welfare of the child but is instead protecting the interests of
the activity provider. Moreover, a parent's decision in signing a pre-injury release impacts the
minor's estate and the property rights personal to the minor. For this reason, the state must assert
its role under parens patriae to protect the interests of the minor children. Id. at 357-58 (internal
citation omitted; emphasis supplied). The Court also predicated its holding on the fact that “there
is injustice when a parent agrees to waive the tort claims of a minor child and deprive the child
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of the right to legal relief when the child is injured as a result of another party's negligence.” Id.
at 357.
The Court stated that business owners owe their patrons a duty of reasonable care and to
maintain a safe environment for the activity they provide, and that if pre-injury releases were
enforceable against commercial establishments, the incentive to take reasonable precautions to
protect the safety of minor children would be removed. Id. at 358. Moreover, a commercial
business can take precautions to ensure the child's safety and insure itself when a minor child is
injured while participating in the activity. On the other hand, a minor child cannot insure himself
or herself against the risks involved in participating in that activity. Id.
Exculpatory contracts are, by public policy, disfavored in the law because they relieve
one party of the obligation to use due care and shift the risk of injury to the party who is probably
least equipped to take the necessary precautions to avoid injury and bear the risk of loss. See
Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006). “There is no basis in common law for
a parent to enter into a compromise or settlement of a child's claim, or to waive substantive rights
of the child without court approval.” Fields v. Kirton, 961 So. 2d 1127, 1130 (Fla. 4th DCA
2007), approved, 997 So. 2d 349 (Fla. 2008).
Similarly, in Claire ‘s Boutiques v. Locastro, 85 So. 3d 1192 (Fla. 4th DCA 2012),
decided after Kirton, the Fourth District Court of Appeal held that a parent's indemnification of a
third party for its negligent conduct, which caused injury to child, violates public policy.
This indemnification agreement between a commercial activity provider and a parent,
requiring the parent to indemnify the commercial entity for its own negligence when the
commercial provider injures the child of the parent, is invalid. Such an onerous provision
conflicts with the public policy expressed in Kirton v. Fields, 997 So. 2d 349 (Fla. 2008), that
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requires the state “to assert its role under parens patriae to protect the interests of the minor
children” where a parent's release, or in this case indemnity, would impact a child's well-being
and leave a parent with the prospects of bearing the financial burden caused by the negligence of
the activity provider, thus protecting only that provider's interest and not the overall welfare of
the child. Id. at 1196.
The court went on to state that allowing a parent to agree to indemnify a third party for
any damages suffered by her child seriously undermines the parent-child relationship and places
undue financial burden on the family unit in the same way a pre-injury release compromises
those same interests. Thus, such an indemnification agreement is void and unenforceable. Id. at
1199.
All of the public policy arguments that support the unenforceability of pre-injury waivers
in connection with commercial activity apply in this case. As the Florida Supreme Court stated in
Kirton, a commercial operator should not be able to avoid liability if a parent signs a pre-injury
release on behalf of a minor child because “a commercial business can take precautions to ensure
the child's safety and insure itself when a minor child is injured while participating in the
activity.” Kirton, 997 So. 2d at 358.
In this case, the incident unquestionably involved a commercial activity because the
incident took place during a Tampa Bay Rays Spring Training baseball game. Cammon was not
able to consent to the waiver and could not consent to waiver of Defendants’ own negligence.
Pursuant to Florida Supreme Court law, the purported pre-injury waiver of liability and
assumption of risk on the ticket cannot be enforced against Cammon Bogart, a three-week-old
infant at the time of the incident.
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III. ASSUMPTION OF RISK IS NOT A VIABLE DEFENSE BECAUSE THE
WAIVER DOES NOT APPLY TO CAMMON AND EVEN IF IT DID, IT IS
UNENFORCEABLE PURSUANT TO THE FLORIDA SUPREME COURT
Affirmative defense of assumption of risk has been merged into defense of comparative
negligence, so it will not automatically bar recovery as it is usually question of fact. O’Connell v.
Walt Disney World Co., 413 So. 2d 444 (5th DCA 1982). Before one expressly assumes risk, it
must be shown that the particular risk was known or should have been known and appreciated by
the injured person. O’Connell v. Walt Disney World Co., 413 So.2d 444 (5th DCA 1982). Where
certain risks are inherent and unavoidable in a particular activity, defendant has no duty to
protect plaintiff from those risks; however, if defendant’s actions increase or add new risks not
normally inherent in activity, duty arises and defendant may be found negligent. O’Connell v.
Walt Disney World Co., 413 So.2d 444 (5th DCA 1982).
Pursuant to Kirton, express assumption of risk cannot be applied to Cammon. “The
doctrine of express assumption of the risk totally bars recovery when the injured party consented
to a known risk.” McNichol v. South Fla. Trotting Center, Inc., 44 So. 3d 253 (4th DCA 2010).
“Express assumption of the risk includes ‘express contracts not to sue for injury…as well
as…where one voluntarily participates in a contact sport.’” Id.
In this case, Cammon could not know and appreciate the risk of injury of bats flying into
the stands. Further, Defendants’ actions and/or inaction of not extending safety netting to the
edge of the dugouts increased risks not normally inherent in the activity. The exculpatory clause
does not expressly state that safety netting does not extend to the end of the dugouts and that
patrons are at a higher risk of injury in that area. Therefore, express assumption of risk cannot be
a defense in this case.
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IV. FLORIDA LAW DOES NOT RECOGNIZE THE “BASEBALL RULE” AS A
VALID DEFENSE
No state court in Florida has ever adopted the “baseball rule” as a viable defense. Further,
there is no legislative action codifying the baseball rule as an available defense as exists in other
jurisdictions. Although there have been numerous cases where a spectator has been injured by a
baseball bat or ball, no court in Florida has ever adopted the “baseball rule” has an available
defense.
WHEREFORE, Plaintiff respectfully requests that the Court grant summary judgment in
as to TAMPA BAY RAYS' Affirmative Defenses Nos. 22-25 and CHARLOTTE COUNTY’S
Affirmative Defenses Nos. 23-26, and further, preclude Defendants from relying on the Pre-
Injury Release, or any clauses thereof, as a defense in this action.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 15, 2022, I electronically filed the foregoing with
the Clerk of the Courts by using the ECF system which will send a notice of electronic filing to
the following: Jeffrey M. Adams, Esquire, Abbey, Adams, Byelick & Mueller, L.L.P., Skyway
Marina District, The Ceridian Campus, 3201 US Highway 19 South, 9th Floor, St. Petersburg,
FL 33711 [ServiceJAdams@AbbeyAdams.com].
/s/ Jared M. Wise
Jared M. Wise, Esquire
FBN: 1000414
Morgan & Morgan, P.A.
20 N. Orange Avenue, 9th Floor
Orlando, FL 32801
Telephone: (407) 420-1414
Facsimile: (407) 245-3416
Primary email: JWise@forthepeople.com
Secondary email: daliarivera@forthepeople.com;
dramsey@forthepeople.com
Attorneys for Plaintiff
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Exhibit A
Filing # 146464579 E-Filed 03/25/2022 04:25:45 PM
Exhibit B
Filing # 146464579 E-Filed 03/25/2022 04:25:45 PM
Exhibit C
Filing # 144765402 E-Filed 02/28/2022 06:11:48 PM
IN THE CIRCUIT COURT OF THE
TWENTIETH JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
CASE NO. 08-2018-CA-000181
CANDACE BOGART AS MOTHER
AND NATURAL GUARDIAN OF
CAMMON BOGART, II,
Plaintiff,
vs.
TAMPA BAY RAYS BASEBALL,
LTD and CHARLOTE COUNTY,
FLORIDA,
Defendants.
/
REQUEST FOR ADMISSIONS TO DEFENDANT TAMPA BAY RAYS BASEBALL LTD
COMES NOW the Plaintiff, by and through her undersigned counsel, pursuant to Florida
Rule of Civil Procedure 1.370, and hereby requests that Defendant, TAMPA BAY RAYS
BASEBALL LTD, admit or deny the following within 30 days from date of service:
1. Please admit that Defendant Tampa Bay Rays Baseball, LTD did not require
individual tickets for children less than two (2) years old for the March 23, 2017 Tampa Bay Rays’
Spring Training game at Charlotte’s Sports Park against the New York Yankees.
2. Please admit that C.B., a minor, was less than two (2) years old on March 23, 2017.
3. Please admit that Defendant Tampa Bay Rays Baseball, LTD did not require that
C.B., a minor, possess an individual ticket for the March 23, 2017 Tampa Bay Rays’ Spring
Training game at Charlotte’s Sports Park against the New York Yankees because he was less than
two (2) years old.
You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com)
4. Please admit that Defendant Tampa Bay Rays Baseball, LTD has no knowledge of
an individual ticket for C.B., a minor, for the March 23, 2017 Tampa Bay Rays’ Spring Training
game at Charlotte’s Sports Park against the New York Yankees.
5. Please admit that Defendant Tampa Bay Rays Baseball, LTD has no knowledge of
an individual ticket purchased for C.B., a minor, for the March 23, 2017 Tampa Bay Rays’ Spring
Training game at Charlotte’s Sports Park against the New York Yankees.
6. Please admit that Defendant Tampa Bay Rays Baseball, LTD has no knowledge of
an individual ticket scanned for entrance for C.B., a minor, for the March 23, 2017 Tampa Bay
Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees.
7. Please admit that C.B., a minor, was not an individual ticket holder for the March
23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York
Yankees.
8. Please admit that Defendant Tampa Bay Rays Baseball, LTD allowed mobile tickets
to enter the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park
against the New York Yankees.
9. Please admit that Candace Bogart used a mobile ticket on her smart phone to enter
the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the
New York Yankees.
10. Please admit that Candace Bogart did not use a mobile ticket on her smart phone to
enter the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park
against the New York Yankees.
11. Please admit that Candace Bogart used a printed ticket to enter the March 23, 2017
Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees.
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12. Please admit that Candace Bogart did not use a printed ticket to enter the March 23,
2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York
Yankees.
13. Please admit that Defendant Tampa Bay Rays Baseball, LTD does not possess the
ticket used by Candace Bogart for the March 23, 2017 Tampa Bay Rays’ Spring Training game at
Charlotte’s Sports Park against the New York Yankees.
14. Please admit that C.B., a minor, did not use an individual ticket separate and apart
from Candace Bogart’s ticket to enter the March 23, 2017 Tampa Bay Rays’ Spring Training game
at Charlotte’s Sports Park against the New York Yankees.
15. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of
Robert Bennett and Ken Mallory filed January 26, 2022 is not on the face of the mobile tickets for
the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the
New York Yankees.
16. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of
Robert Bennett and Ken Mallory filed January 26, 2022 does not refer to children less than two (2)
years old.
17. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of
Robert Bennett and Ken Mallory filed January 26, 2022 does not explicitly state the applicability to
children less than two (2) years old.
18. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of
Robert Bennett and Ken Mallory filed January 26, 2022 does not address children less than two (2)
years old who may accompany a ticket holder.
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19. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of
Robert Bennett and Ken Mallory filed January 26, 2022 does not state that children less than two (2)
years old accompanying a ticket holder agree that Defendant Tampa Bay Rays Baseball LTD is not
liable and is held harmless by the holder for all injuries, expenses, claims, and liabilities resulting
from or related to any such causes.
20. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of
Robert Bennett and Ken Mallory filed January 26, 2022 does not state that children less than two (2)
years old accompanying a ticket holder agree that Defendant Charlotte County is not liable and is
held harmless by the holder for all injuries, expenses, claims, and liabilities resulting from or related
to any such causes.
21. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of
Robert Bennett and Ken Mallory filed January 26, 2022 does not state that the safety netting behind
home plate did not extend to the end of the dugouts.
22. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of
Robert Bennett and Ken Mallory filed January 26, 2022 does not state that children less than two (2)
years old agree that .
23. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of
Robert Bennett and Ken Mallory filed January 26, 2022 does not advise children less than two (2)
years old that they assume all risks and dangers incidental to the game of baseball.
24. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of
Robert Bennett and Ken Mallory filed January 26, 2022 does not warn children less than two (2)
years old of the dangers of being injured by thrown bats.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 28, 2022, I electronically filed the foregoing
with the Clerk of the Courts by using the ECF system which will send a notice of electronic
filing to the following: Jeffrey M. Adams, Esquire, Abbey, Adams, Byelick & Mueller, L.L.P.,
Skyway Marina District, The Ceridian Campus, 3201 US Highway 19 South, 9th Floor, St.
Petersburg, FL 33711 [ServiceJAdams@AbbeyAdams.com].
/s/ Jared M. Wise
Jared M. Wise, Esquire
FBN: 1000414
Morgan & Morgan, P.A.
20 N. Orange Avenue, 9th Floor
Orlando, FL 32801
Telephone: (407) 420-1414
Facsimile: (407) 245-3416
Primary email: JWise@forthepeople.com
Secondary email: daliarivera@forthepeople.com;
dramsey@forthepeople.com
Attorneys for Plaintiff
You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com)
Filing # 146717855 E-Filed 03/30/2022 01:40:17 PM
Exhibit D
Filing # 147844918 E-Filed 04/18/2022 12:21:53 PM
Exhibit E
Exhibit F
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Filing # 155307902 E-Filed 08/15/2022 11:48:35 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO: 08-2018-CA-000181 CANDACE BOGART AS MOTHER AND NATURAL GUARDIAN OF CAMMON BOGART, II, Plaintiff, vs. TAMPA BAY RAYS BASEBALL, LTD. AND CHARLOTE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORDIA, Defendants. / PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON DEFENDANT TAMPA BAY RAYS' AFFIRMATIVE DEFENSES NOS. 22-25 AND DEFENDANT CHARLOTTE COUNTY’S AFFIRMATIVE DEFENSES NOS. 23-26 Plaintiff, CANDACE BOGART AS MOTHER AND NATURAL GUARDIAN OF CAMMON BOGART, II, by and through her undersigned counsel, hereby files this Motion for Summary Judgment on Defendant TAMPA BAY RAYS' Affirmative Defenses Nos. 22-25 and Defendant CHARLOTTE COUNTY’S Affirmative Defenses Nos. 23-26, and states: SUMMARY OF CLAIM This lawsuit stems from a tragic incident at a Tampa Bay Rays Spring Training game where a bat flew into the stands and struck Cammon Bogart in the head. Cammon was a three- week-old baby at the time of the incident. Defendants permitted the bat to fly into the stands because Defendants did not extend safety netting to the end of the dugout. Cammon suffers from a traumatic brain injury, recurring post-traumatic seizures, and developmental delay. 1 SUMAMRY OF ARGUMENT Summary judgment should be granted against Defendants’ pre-injury waiver of liability affirmative defenses for three reasons: 1) The pre-injury waiver must be strictly construed against the party seeking enforcement. The waiver only applies to the ticket holder and Cammon was not a ticket holder because he was under two years old. 2) The Florida Supreme Court in Kirton v. Fields held that pre-injury releases are unenforceable against minors when it involves participation in a commercial activity, such as in this case at Tampa Bay Rays Spring Training game. 3) The Florida Supreme Court held that the Doctrine of Assumption of Risk is not a viable defense except for express assumption of risk by contract which is unenforceable in this case pursuant to Cammon’s non-ticket holder status and Kirton v. Fields. 4) Defendants’ alleged “Baseball Rule” is not a recognized defense under Florida law Defendants’ pre-injury waivers of liability attempt to prevent Cammon - a minor child - from having any remedy here, notwithstanding Defendants’ negligence. FACTS Defendants filed amended affirmative defenses based on exculpatory language on the face of the ticket Ms. Bogart used to enter the March 23, 2017, Tampa Bay Rays Spring Training game. Exhibit A – Charlotte County Amended Affirmative Defenses; Exhibit B – Tampa Bay Rays Amended Affirmative Defenses. The amended affirmative defenses based on the ticket allege that Ms. Bogart: a) assumed all risk and danger incidental to the game of baseball (Ex, A - Aff. Def. 22 for County, Exhibit B – Aff. Def. 21 for Rays), b) was warned of the dangers of being injured by thrown bats (Ex, A - Aff. Def. 23 for County, Exhibit B – Aff. Def. 22 for Rays), c) agreed Defendants are not liable and are held harmless for all injuries, expenses, claims, and liabilities from ore related to any such causes (Ex, A - Aff. Def. 24 for County, Exhibit B – Aff Def. 23 for Rays), 2 d) pursuant to the Doctrine of Assumption of Risk, was aware of potential risks of attending a baseball (sic) where Plaintiff was located that bats could come into the stands and it would be prudent to pay attention for such to occur and/or avoid such area (Ex, A - Aff. Def. 25 for County, Exhibit B – Aff. Def. 24 for Rays), e) pursuant to the “Baseball Rule,” was aware of the potential of balls, bats, or other objects coming from the field of play into the stands and assumed such risk (Ex, A - Aff. Def. 26 for County, Exhibit B – Aff. Def. 25 for Rays) I. THE EXPRESS LANGUAGE OF THE EXCULPATORY CLAUSE MUST BE STRICTLY CONSTRUED AGAINST THE PARTIES SEEKING ENFORCEMENT AND FOUND UNENFORCEABLE AGAINST CAMMON While summary judgment should be granted solely on the Florida Supreme Court law which makes pre-injury releases unenforceable against minors, summary judgment is also required based on the language of the pre-injury waiver. Pre-injury waivers are generally disfavored and must be strictly construed against the party seeking enforcement. “An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury.” Kitchens of the Oceans, Inc. v. McGladrey & Pullen, LLP, 832 So. 2d 270, 272 (Fla. 4th DCA 2002) (quoting O'Connell v. Walt Disney World Co., 413 So. 2d 444, 446 (Fla. 5th DCA 1982)). “Exculpatory clauses are disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss.” Loewe v. Seagate Homes, Inc., 987 So. 2d 758, 760 (Fla. 5th DCA 2008). Further, such clauses “will be strictly construed against the party claiming to be relieved of liability.” Murphy v. Young Men's Christian Ass'n of Lake Wales, Inc., 974 So. 2d 565, 567–68 (Fla. 2d DCA 2008). “‘Such clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he is 3 contracting away.’” Id. at 568 (quoting Southworth & McGill, P.A. v. S. Bell Tel. & Tel. Co., 580 So. 2d 628, 634 (Fla. 1st DCA 1991)). The pre-injury waiver at issue states: The holder of this ticket voluntarily assumes all risk and danger incidental to the game of Baseball, or other event for which this ticket is issued, whether occurring prior to, during, or subsequent to the actual playing of the game, including specifically (but not exclusively) the danger of being injured by thrown bats, fragments thereof, and thrown and batted balls or other objects, and the holder, by using this ticket, agrees that Major League Baseball (“MLB”), the American League, the National League, the Tampa Bay Rays (“Club”), CBI-Rays LLC, other participating clubs, Charlotte Sports Park (“Stadium”), Charlotte County, and Tickets.com, including without limitation their respective players, other employees and agents and all other individuals and entities affiliated with such organizations, are not liable and are hereby held harmless by the holder for all injuries, expenses, claims and liabilities resulting from or related to any such causes... (Ex. A and Ex. B). Here, the waiver only applies to “the ticket holder” and is silent as to minors under two years old or any other classifications of patrons. The waiver language does not expressly waive liability for Defendants’ own negligence, nor does the ticket explicitly warn that Defendants failed to extend the safety netting to the end of the dugouts. i. The exculpatory language is expressly limited to “the holder of this ticket” and does not apply to minors under two years old who are non-ticket holders The explicit language of the ticket only applies to “the holder of this ticket.” The exculpatory clause does not even mention minors under two years old or its applicability to anyone other than the ticket holder. In this case, the holder of the ticket is Candace Bogart, not the injured minor, Cammon Bogart. The pre-injury waiver is silent as to minors under two years old. The Tampa Bay Rays ticket policy does not require minors under two years old to have an individual ticket to enter the stadium. (Exhibit C, Response to RFA #1 and #3). Cammon 4 Bogart was only three weeks old at the time of the incident was not required to have his own ticket to enter the stadium. Florida law requires that the language of the waiver and assumption of risk be strictly construed against the party seeking enforcement. The plane language reading of the exculpatory language only applies to “the ticket holder” and does not expressly state that it applies to any other classification. Minors under two years old, including Cammon, are outside the pool of candidates for the release. The fact that the exculpatory language is limited to “the holder of this ticket” coupled with the fact that Defendants did not require children under two years old to be a ticket holder shows that Defendants expressly carved out the waiver’s applicability to anyone other than the ticket holder. Defendants did not extend the release to minors under two years old by virtue of not making minors under two years old required to have a ticket for entry into the stadium. Although Defendants maintained a policy which did not require minors under two years old to be ticket holders, the language of the waiver does not explicitly state that it applies to anyone other than the “holder of this ticket.” The language could have read that it applies to ticket holders and accompanying minors under two years old, but it does not. Therefore, the waiver of liability and assumption of risk cannot be enforced against minors under two years old who are not ticket holders and who are not explicitly mentioned in the exculpatory language. ii. The pre-injury waiver does not clearly and unequivocally state that the safety netting does not extend to the end of the dugout, nor does it expressly waive liability for Defendants’ own negligence The second reason that the exculpatory language cannot be applied to Cammon Bogart in this case is because the language does not expressly warn that the safety netting does not extend 5 to the end of the dugouts. Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal to understand what is being contracted away. While the ticket language generally mentions dangers of thrown bats, it is silent as to the location of safety netting or the fact that the safety netting does not extend to the end of the dugout. Importantly, the exculpatory language does not clearly include a waiver of claims for Defendants’ own negligence. In Repor Bros., Inc. v. Moore, the court reversed the trial court's entry of final summary judgment because “[a] contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms.” 83 So. 3d 903 (Fla. 2d. DCA 2012); quoting Univ. Plaza Shopping Ctr., Inc. v. Stewart, 272 So. 2d 507, 509 (Fla.1973) (citing 41 Am.Jur.2d, Indemnity, § 15). “Contracts which attempt to indemnify a party for its own wrongful acts are viewed with disfavor and will be enforced only if they express such intent in clear, unequivocal terms.” S.E.F.C. Bldg. Corp. v. McCloskey Window Cleaning, Inc., 645 So. 2d 1116, 1116 (Fla. 3d DCA 1994). See also Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487 (Fla.1979); Skidmore, Owings and Merrill v. Volpe Constr. Co., 511 So. 2d 642 (Fla. 3d DCA 1987); Nat Harrison Assocs., Inc. v. Fla. Power & Light Co., 162 So. 2d 298 (Fla. 3d DCA 1964). Here, the purported waiver is rife with ambiguity and uncertainty. First, Defendants cannot produce the actual ticket purportedly used by Candace Bogart. (Exhibit D, Def. Rays Response to Request to Produce). The Tampa Bay Rays Director of Ticket Operations and Assistant Director of ticket operations state that Candace could not have used a mobile ticket to enter the stadium and purportedly produced an exemplar ticket which contained the ticket waiver 6 language. However, Candace Bogart testified that used a mobile ticket which did not have the waiver language on the ticket. (Exhibit E, Affidavit of Candace Bogart and Mobile Ticket). The ticket used by Mrs. Bogart is significantly different than the alleged exemplar ticket: . Even if it is assumed that the exemplar ticket was used, the exculpatory provision appears in illegibly small font in the bottom of the alleged ticket. (Exhibit F, Exemplar Ticket). 7 The provision is not thorough or detailed. The waiver does not expressly release any particular claim. Most significantly, it does not expressly release claims for Defendants’ own negligence in clear, unequivocal terms and must be found unenforceable against Cammon Bogart. The exculpatory language is contradictory. The first sentence reads that the ticket holder “voluntarily assumes all risk and danger incidental to the game of Baseball…” and then reads that Defendants are “are not liable and are hereby held harmless by the holder for all injuries, expenses, claims and liabilities resulting from or related to any such causes...” The initial sentence clearly limits the exculpatory language to risk and danger incidental to the game of baseball. Next, the waiver states that Defendants will be held harmless for all injuries, expenses, claims, and liabilities resulting from or related to any such causes. The final clause is contradictory to the initial clause and attempts to waive liability for any claim by any cause, not just those claims incidental to the game of baseball. Due to the uncertainty on the face of the ticket language, it must be found to be unenforceable. II. FLORIDA SUPREME COURT LAW HOLDS THAT PRE-INJURY RELEASES ARE UNENFORCEABLE AGAINST MINORS WHERE THE ACTIVITY INVOLVES COMMERCIAL ACTIVITY Even if the Court finds that the exculpatory language applies to Cammon although it is not explicitly stated in the waiver, his mother’s purchase of her own ticket could not release Defendants’ liability to Cammon as a matter of law and public policy. In Kirton v. Fields, 997 So. 2d 349 (Fla. 2008), the Florida Supreme Court certified the following question: “Whether a parent may bind a minor's estate by the pre-injury execution of a release.” Id. at 350. The Court answered “no” and held that “a parent does not have the authority 8 to execute a pre-injury release on behalf of a minor child when the release involves participation in a commercial activity.” Id. (emphasis supplied). In answering the certified question, the Court began by acknowledging that while parents have authority to make decisions involving their minor children, the State also has a compelling interest in protecting them. Under this concept of “parens patriae,” the State may usurp parental control when appropriate. Id. at 353. The Court reasoned that the “decision to absolve the provider of an activity from liability for any form of negligence (regardless of the inherent risk or danger in the activity) goes beyond the scope of determining which activity a person feels is appropriate for their child.” Id. at 357 (internal citation omitted). In acknowledging this, the Court unequivocally concluded that “public policy concerns cannot allow parents to execute pre- injury releases on behalf of minor children.” Id. at 354. Explaining further, the Court stated that when a parent executes such a release and a child is injured, the provider of the activity escapes liability while the parent is left to deal with the financial burden of an injured child. If the parent cannot afford to bear that burden, the parties who suffer are the child, other family members, and the people of the State who will be called on to bear that financial burden. Therefore, when a parent decides to execute a pre-injury release on behalf of a minor child, the parent is not protecting the welfare of the child but is instead protecting the interests of the activity provider. Moreover, a parent's decision in signing a pre-injury release impacts the minor's estate and the property rights personal to the minor. For this reason, the state must assert its role under parens patriae to protect the interests of the minor children. Id. at 357-58 (internal citation omitted; emphasis supplied). The Court also predicated its holding on the fact that “there is injustice when a parent agrees to waive the tort claims of a minor child and deprive the child 9 of the right to legal relief when the child is injured as a result of another party's negligence.” Id. at 357. The Court stated that business owners owe their patrons a duty of reasonable care and to maintain a safe environment for the activity they provide, and that if pre-injury releases were enforceable against commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed. Id. at 358. Moreover, a commercial business can take precautions to ensure the child's safety and insure itself when a minor child is injured while participating in the activity. On the other hand, a minor child cannot insure himself or herself against the risks involved in participating in that activity. Id. Exculpatory contracts are, by public policy, disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. See Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006). “There is no basis in common law for a parent to enter into a compromise or settlement of a child's claim, or to waive substantive rights of the child without court approval.” Fields v. Kirton, 961 So. 2d 1127, 1130 (Fla. 4th DCA 2007), approved, 997 So. 2d 349 (Fla. 2008). Similarly, in Claire ‘s Boutiques v. Locastro, 85 So. 3d 1192 (Fla. 4th DCA 2012), decided after Kirton, the Fourth District Court of Appeal held that a parent's indemnification of a third party for its negligent conduct, which caused injury to child, violates public policy. This indemnification agreement between a commercial activity provider and a parent, requiring the parent to indemnify the commercial entity for its own negligence when the commercial provider injures the child of the parent, is invalid. Such an onerous provision conflicts with the public policy expressed in Kirton v. Fields, 997 So. 2d 349 (Fla. 2008), that 10 requires the state “to assert its role under parens patriae to protect the interests of the minor children” where a parent's release, or in this case indemnity, would impact a child's well-being and leave a parent with the prospects of bearing the financial burden caused by the negligence of the activity provider, thus protecting only that provider's interest and not the overall welfare of the child. Id. at 1196. The court went on to state that allowing a parent to agree to indemnify a third party for any damages suffered by her child seriously undermines the parent-child relationship and places undue financial burden on the family unit in the same way a pre-injury release compromises those same interests. Thus, such an indemnification agreement is void and unenforceable. Id. at 1199. All of the public policy arguments that support the unenforceability of pre-injury waivers in connection with commercial activity apply in this case. As the Florida Supreme Court stated in Kirton, a commercial operator should not be able to avoid liability if a parent signs a pre-injury release on behalf of a minor child because “a commercial business can take precautions to ensure the child's safety and insure itself when a minor child is injured while participating in the activity.” Kirton, 997 So. 2d at 358. In this case, the incident unquestionably involved a commercial activity because the incident took place during a Tampa Bay Rays Spring Training baseball game. Cammon was not able to consent to the waiver and could not consent to waiver of Defendants’ own negligence. Pursuant to Florida Supreme Court law, the purported pre-injury waiver of liability and assumption of risk on the ticket cannot be enforced against Cammon Bogart, a three-week-old infant at the time of the incident. 11 III. ASSUMPTION OF RISK IS NOT A VIABLE DEFENSE BECAUSE THE WAIVER DOES NOT APPLY TO CAMMON AND EVEN IF IT DID, IT IS UNENFORCEABLE PURSUANT TO THE FLORIDA SUPREME COURT Affirmative defense of assumption of risk has been merged into defense of comparative negligence, so it will not automatically bar recovery as it is usually question of fact. O’Connell v. Walt Disney World Co., 413 So. 2d 444 (5th DCA 1982). Before one expressly assumes risk, it must be shown that the particular risk was known or should have been known and appreciated by the injured person. O’Connell v. Walt Disney World Co., 413 So.2d 444 (5th DCA 1982). Where certain risks are inherent and unavoidable in a particular activity, defendant has no duty to protect plaintiff from those risks; however, if defendant’s actions increase or add new risks not normally inherent in activity, duty arises and defendant may be found negligent. O’Connell v. Walt Disney World Co., 413 So.2d 444 (5th DCA 1982). Pursuant to Kirton, express assumption of risk cannot be applied to Cammon. “The doctrine of express assumption of the risk totally bars recovery when the injured party consented to a known risk.” McNichol v. South Fla. Trotting Center, Inc., 44 So. 3d 253 (4th DCA 2010). “Express assumption of the risk includes ‘express contracts not to sue for injury…as well as…where one voluntarily participates in a contact sport.’” Id. In this case, Cammon could not know and appreciate the risk of injury of bats flying into the stands. Further, Defendants’ actions and/or inaction of not extending safety netting to the edge of the dugouts increased risks not normally inherent in the activity. The exculpatory clause does not expressly state that safety netting does not extend to the end of the dugouts and that patrons are at a higher risk of injury in that area. Therefore, express assumption of risk cannot be a defense in this case. 12 IV. FLORIDA LAW DOES NOT RECOGNIZE THE “BASEBALL RULE” AS A VALID DEFENSE No state court in Florida has ever adopted the “baseball rule” as a viable defense. Further, there is no legislative action codifying the baseball rule as an available defense as exists in other jurisdictions. Although there have been numerous cases where a spectator has been injured by a baseball bat or ball, no court in Florida has ever adopted the “baseball rule” has an available defense. WHEREFORE, Plaintiff respectfully requests that the Court grant summary judgment in as to TAMPA BAY RAYS' Affirmative Defenses Nos. 22-25 and CHARLOTTE COUNTY’S Affirmative Defenses Nos. 23-26, and further, preclude Defendants from relying on the Pre- Injury Release, or any clauses thereof, as a defense in this action. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 15, 2022, I electronically filed the foregoing with the Clerk of the Courts by using the ECF system which will send a notice of electronic filing to the following: Jeffrey M. Adams, Esquire, Abbey, Adams, Byelick & Mueller, L.L.P., Skyway Marina District, The Ceridian Campus, 3201 US Highway 19 South, 9th Floor, St. Petersburg, FL 33711 [ServiceJAdams@AbbeyAdams.com]. /s/ Jared M. Wise Jared M. Wise, Esquire FBN: 1000414 Morgan & Morgan, P.A. 20 N. Orange Avenue, 9th Floor Orlando, FL 32801 Telephone: (407) 420-1414 Facsimile: (407) 245-3416 Primary email: JWise@forthepeople.com Secondary email: daliarivera@forthepeople.com; dramsey@forthepeople.com Attorneys for Plaintiff 13 Exhibit A Filing # 146464579 E-Filed 03/25/2022 04:25:45 PM Exhibit B Filing # 146464579 E-Filed 03/25/2022 04:25:45 PM Exhibit C Filing # 144765402 E-Filed 02/28/2022 06:11:48 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO. 08-2018-CA-000181 CANDACE BOGART AS MOTHER AND NATURAL GUARDIAN OF CAMMON BOGART, II, Plaintiff, vs. TAMPA BAY RAYS BASEBALL, LTD and CHARLOTE COUNTY, FLORIDA, Defendants. / REQUEST FOR ADMISSIONS TO DEFENDANT TAMPA BAY RAYS BASEBALL LTD COMES NOW the Plaintiff, by and through her undersigned counsel, pursuant to Florida Rule of Civil Procedure 1.370, and hereby requests that Defendant, TAMPA BAY RAYS BASEBALL LTD, admit or deny the following within 30 days from date of service: 1. Please admit that Defendant Tampa Bay Rays Baseball, LTD did not require individual tickets for children less than two (2) years old for the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees. 2. Please admit that C.B., a minor, was less than two (2) years old on March 23, 2017. 3. Please admit that Defendant Tampa Bay Rays Baseball, LTD did not require that C.B., a minor, possess an individual ticket for the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees because he was less than two (2) years old. You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com) 4. Please admit that Defendant Tampa Bay Rays Baseball, LTD has no knowledge of an individual ticket for C.B., a minor, for the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees. 5. Please admit that Defendant Tampa Bay Rays Baseball, LTD has no knowledge of an individual ticket purchased for C.B., a minor, for the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees. 6. Please admit that Defendant Tampa Bay Rays Baseball, LTD has no knowledge of an individual ticket scanned for entrance for C.B., a minor, for the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees. 7. Please admit that C.B., a minor, was not an individual ticket holder for the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees. 8. Please admit that Defendant Tampa Bay Rays Baseball, LTD allowed mobile tickets to enter the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees. 9. Please admit that Candace Bogart used a mobile ticket on her smart phone to enter the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees. 10. Please admit that Candace Bogart did not use a mobile ticket on her smart phone to enter the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees. 11. Please admit that Candace Bogart used a printed ticket to enter the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees. You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com) 12. Please admit that Candace Bogart did not use a printed ticket to enter the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees. 13. Please admit that Defendant Tampa Bay Rays Baseball, LTD does not possess the ticket used by Candace Bogart for the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees. 14. Please admit that C.B., a minor, did not use an individual ticket separate and apart from Candace Bogart’s ticket to enter the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees. 15. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of Robert Bennett and Ken Mallory filed January 26, 2022 is not on the face of the mobile tickets for the March 23, 2017 Tampa Bay Rays’ Spring Training game at Charlotte’s Sports Park against the New York Yankees. 16. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of Robert Bennett and Ken Mallory filed January 26, 2022 does not refer to children less than two (2) years old. 17. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of Robert Bennett and Ken Mallory filed January 26, 2022 does not explicitly state the applicability to children less than two (2) years old. 18. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of Robert Bennett and Ken Mallory filed January 26, 2022 does not address children less than two (2) years old who may accompany a ticket holder. You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com) 19. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of Robert Bennett and Ken Mallory filed January 26, 2022 does not state that children less than two (2) years old accompanying a ticket holder agree that Defendant Tampa Bay Rays Baseball LTD is not liable and is held harmless by the holder for all injuries, expenses, claims, and liabilities resulting from or related to any such causes. 20. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of Robert Bennett and Ken Mallory filed January 26, 2022 does not state that children less than two (2) years old accompanying a ticket holder agree that Defendant Charlotte County is not liable and is held harmless by the holder for all injuries, expenses, claims, and liabilities resulting from or related to any such causes. 21. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of Robert Bennett and Ken Mallory filed January 26, 2022 does not state that the safety netting behind home plate did not extend to the end of the dugouts. 22. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of Robert Bennett and Ken Mallory filed January 26, 2022 does not state that children less than two (2) years old agree that . 23. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of Robert Bennett and Ken Mallory filed January 26, 2022 does not advise children less than two (2) years old that they assume all risks and dangers incidental to the game of baseball. 24. Please admit that the language of the ticket attached as Exhibit F to the Affidavits of Robert Bennett and Ken Mallory filed January 26, 2022 does not warn children less than two (2) years old of the dangers of being injured by thrown bats. You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 28, 2022, I electronically filed the foregoing with the Clerk of the Courts by using the ECF system which will send a notice of electronic filing to the following: Jeffrey M. Adams, Esquire, Abbey, Adams, Byelick & Mueller, L.L.P., Skyway Marina District, The Ceridian Campus, 3201 US Highway 19 South, 9th Floor, St. Petersburg, FL 33711 [ServiceJAdams@AbbeyAdams.com]. /s/ Jared M. Wise Jared M. Wise, Esquire FBN: 1000414 Morgan & Morgan, P.A. 20 N. Orange Avenue, 9th Floor Orlando, FL 32801 Telephone: (407) 420-1414 Facsimile: (407) 245-3416 Primary email: JWise@forthepeople.com Secondary email: daliarivera@forthepeople.com; dramsey@forthepeople.com Attorneys for Plaintiff You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com) Filing # 146717855 E-Filed 03/30/2022 01:40:17 PM Exhibit D Filing # 147844918 E-Filed 04/18/2022 12:21:53 PM Exhibit E Exhibit F