By: Clarke C. Rich
Arbitration is an often underutilized tool that can yield positive results for a client with less time, formality, and expense, than a trial often requires. It is a private dispute-resolution process where the parties agree to have a neutral third party, the arbitrator, decide their dispute instead of going through a court trial. The arbitrator’s decision, called an award, is usually binding and can be enforced by Maryland courts. Arbitration is generally allowed when the parties have agreed to it, either in a contract signed before a dispute arises (e.g., employment, commercial, construction, or service agreements) or through an agreement entered after a dispute has already developed. There are circumstances where a statute or court rule requires or encourages arbitration.
We recently participated in an arbitration with a retired judge that was a positive alternative to a jury trial in the circuit court. We were the attorneys representing the defendant in in a matter involving a plaintiff who was injured when she was struck in the face by a fly ball at a professional sporting event. The plaintiff brought suit, alleging the defendant failed to provide a reasonably safe environment. In defense, we argued that when the plaintiff purchased her ticket and entered the stadium, she assumed the risks of being present at a baseball game, one of which is the potential of being struck by a ball. Not only did the plaintiff assume the risk, she waived her rights to a claim against the team when she purchased her ticket.
Our client conveyed four different warnings to patrons of the danger along with guidance as to how to remain safe while at the game. The first warning was on the team’s website. The second warning was printed on every ticket that was issued by the box office at the stadium. At the time of the injury, every person entering the game had to have a physical ticket as there was no digital ticketing option available at the time. Therefore, there was no question the plaintiff was in physical possession of the written warning as she entered the game. A third warning came as soon as patrons entered the stadium where a two-foot by four-foot sign was affixed to a wall and warned patrons about the dangers of fly balls and bats. The fourth warning was a public address that an announcer gave in the first inning. The public address was given over the stadium’s loudspeaker and stated, “…please be aware of bats and balls that may enter the seating areas. Please keep your attention focused on the field while the game is in progress. Foul balls and bats can be very dangerous.” We argued that the warnings went above and beyond and affirmed our argument that our client did not breach any duty owed to the plaintiff.
The structure of our arbitration was similar to that of a district court trial. The retired judge preceding over the arbitration heard opening arguments, followed by the direct and cross-examination of the plaintiff’s witnesses. After the plaintiff rested, we presented our client for direct examination, followed by cross-examination from plaintiff’s counsel, and then ultimately closing arguments. The arbitrator will issue a written opinion and award within the next thirty days.
In addition to being faster and less formal than a trial, the process allowed for more flexibility. Prior to arbitration beginning, we negotiated with plaintiff’s counsel to set a high and a low – meaning, when the judge is determining the award, there are fixed parameters. This takes away the element of surprise that can come from a verdict following a trial. In addition, we also worked with plaintiff’s counsel to come to an agreement on the admission of exhibits and submitted those exhibits prior to the start of arbitration. This expedited the process of introducing exhibits during arbitration, which is often a time consuming and cumbersome process at trial.
Next time you are in a civil dispute and believe you may be heading to trial, think about arbitration as an option. And, stay tuned for an update on the arbitrator’s decision!
Clarke Rich is an Associate in the Firm’s Labor and Employment Group. Clarke can be reached at (410) 339-6760 or crich@pklaw.com.
