--- N.Y.S.2d ----, 2011 WL 2713712
N.Y.A.D. 3 Dept.,2011.
July 14, 2011
--- N.Y.S.2d ----, 2011 WL 2713712 (N.Y.A.D. 3 Dept.), 2011 N.Y. Slip Op. 05912
Supreme Court, Appellate Division, Third Department, New York.
Shawn BUKOWSKI, Appellant,
v.
CLARKSON UNIVERSITY et al., Respondents.
July 14, 2011.
Background: Student-athlete brought action against university and related defendants, seeking to recover damages for injuries he sustained after being struck in the face by a baseball during practice. The Supreme Court, Albany County, Devine, J., dismissed action at close of proof at trial. Student-athlete appealed.
Holdings: The Supreme Court, Appellate Division, Rose, J., held that:
(1) student-athlete assumed risk of being hit during practice, thereby precluding negligence claim, and
(2) student-athlete's participation in practice was not compelled or involuntary, thereby precluding use of “inherent compulsion” theory.
Affirmed.
Peters, J., issued dissenting opinion to which Stein, J., concurred.
West Headnotes
[1] KeyCite Citing References for this Headnote
Key Number Symbol272 Negligence
Organizers of sporting activities owe a duty to exercise reasonable care to protect participants from injuries arising out of unassumed, concealed, or unreasonably increased risks.
[2] KeyCite Citing References for this Headnote
Key Number Symbol272 Negligence
Voluntary participants in sporting activities are deemed to have assumed commonly appreciated risks inherent in the activity, such that any legally enforceable duty to reduce the risks of activity is limited to making conditions as safe as they appear to be; this primary assumption of the risk doctrine extends to risks engendered by less than optimal conditions, provided those conditions are open and obvious and the consequently arising risks are readily appreciable.
[3] KeyCite Citing References for this Headnote
Key Number Symbol272 Negligence
University and related defendants fulfilled their duty to make conditions at baseball practice as safe as they appeared to be, thereby precluding student-athlete's negligence claim, notwithstanding that student-athlete was hit in face by baseball during batting practice, as student-athlete fully appreciated risk of being hit by line drive and he was able to readily observe open and obvious conditions of indoor facility in which he was pitching.
[4] KeyCite Citing References for this Headnote
Key Number Symbol272 Negligence
The theory of “inherent compulsion” provides that assumption of the risk is not a shield from liability when the element of voluntariness is overcome by compulsion of superior.
[5] KeyCite Citing References for this Headnote
Key Number Symbol272 Negligence
Student-athlete's participation in baseball practice, in which he sustained injuries after being hit in face by baseball during batting practice, was not compelled or involuntary, thereby precluding claim that his assumption of risk was overrun by inherent compulsion of his coaches; although student-athlete purportedly had no option but to participate in practice without a protective screen, he was in fact aware that he was pitching without screen.
[6] KeyCite Citing References for this Headnote
Key Number Symbol228 Judgment
Denial of defendants' motion for summary judgment did not serve as law of the case precluding a subsequent motion to dismiss after all of evidence was presented at trial.
John T. Casey Jr., Troy, for appellant.
Law Offices of Theresa Puleo, Albany (Norah M. Murphy of counsel), for respondents.
Before: PETERS, J.P., SPAIN, ROSE, STEIN and EGAN JR., JJ.
ROSE, J.
*1 Appeal from an order of the Supreme Court (Devine, J.), entered February 3, 2010 in Albany County, upon a dismissal of the complaint at the close of proof.
Plaintiff commenced this action to recover damages for injuries he sustained while participating in baseball practice as a freshman pitcher for defendant Clarkson University's Division III intercollegiate baseball team. Plaintiff was pitching from an artificial mound at regulation distance to a batter in an indoor training facility when the batter hit a line drive that struck plaintiff in the face. After joinder of issue and discovery, Supreme Court (Teresi, J.) denied defendants' motion for summary judgment dismissing the complaint.
During his jury trial testimony, plaintiff acknowledged that he was an experienced baseball player who was aware of the risk of being struck by a batted ball while pitching. Plaintiff testified that he had been playing baseball and pitching in various leagues for many years and that balls had been batted directly back at him 50 to 100 times throughout the course of his experience as a pitcher. In addition, plaintiff testified that he had extensive experience playing on fields of all different types, under a variety of conditions, which included different backdrops, pitching mounds and lighting. Plaintiff further acknowledged that he was familiar with the indoor training facility where the team practices were held and had regularly attended the practices in the facility a month before the incident. Plaintiff confirmed that he had been informed by his coaches that they intended to hold “live” practice without the use of a protective screen, known as an L-screen, in the indoor facility at least two weeks prior to the accident. He also testified that, both on the day before his accident and just prior to his turn on the pitching mound, he had observed other pitchers practicing “live” in the netted-off “batting cage” area without the use of an L-screen. After the close of proof, Supreme Court (Devine, J.) granted defendants' motion to dismiss on the ground that plaintiff had assumed the obvious risk of being hit by a line drive.
Plaintiff appeals,FN1 arguing, among other things, that factual issues exist as to whether the risk of being hit by a ball was unreasonably enhanced by the backdrop and lighting of the indoor facility and the failure to use an L-screen. We cannot agree. Given the undisputed evidence of plaintiff's experience and his awareness of the risk of being hit by a ball, Supreme Court properly concluded that he assumed that risk.
[1] Headnote Citing References[2] Headnote Citing References[3] Headnote Citing References Organizers of sporting activities owe a duty to exercise reasonable care to protect participants “from injuries arising out of unassumed, concealed, or unreasonably increased risks” ( Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 654 [1989] ). Voluntary participants in sporting activities are deemed to have assumed commonly appreciated risks inherent in the activity such that any legally enforceable duty to reduce the risks of the activity is limited “ ‘to mak[ing] the conditions as safe as they appear to be’ “ ( Morgan v. State of New York, 90 N.Y.2d 471, 484 [1997], quoting Turcotte v. Fell, 68 N.Y.2d 432, 437–439 [1986] ). This primary assumption of the risk doctrine “extends to ‘risks engendered by less than optimal conditions, provided that those conditions are open and obvious and that the consequently arising risks are readily appreciable’ “ ( Martin v. State of New York, 64 A.D.3d 62, 64 [2009], lv denied 13 N.Y.3d 706 [2009], quoting Roberts v. Boys & Girls Republic, Inc., 51 A.D.3d 246, 248 [2008], affd 10 N.Y.3d 889 [2008] ). Here, as plaintiff fully appreciated the risk of being hit by a line drive and he was able to readily observe the open and obvious conditions of the facility in which he was pitching, defendants fulfilled their duty by making the conditions as safe as they appeared to be ( see Lincoln v. Canastota Cent. School Dist., 53 A.D.3d 851, 852 [2008]; Harris v. Cherry Val.-Springfield School Dist., 305 A.D.2d 964, 965 [2003]; Vecchione v. Middle Country Cent. School Dist., 300 A.D.2d 471, 471 [2002] ).
*2 Whether plaintiff was pitching in an indoor or an outdoor facility, the risk of being hit by a ball is inherent in the sport of baseball and the conditions in which he was pitching were readily observable ( see Lomonico v. Massapequa Pub. Schools, 84 A.D.3d 1033, 1034 [2011]; Rodriguez v. City of New York, 82 A.D.3d 563, 564 [2011] ). Plaintiff's expert evidence, relied upon by the dissent, is that an L-screen or a darker backdrop could have lessened the risk, making the indoor conditions safer. Such evidence is, however, irrelevant given the fully comprehended and perfectly obvious nature of the inherent risk ( see Martin v. State of New York, 64 A.D.3d at 64, 878 N.Y.S.2d 823; Musante v. Oceanside Union Free School Dist., 63 A.D.3d 806, 807 [2009], lv denied 13 N.Y.3d 704 [2009]; Tilson v. Russo, 30 A.D.3d 856, 858–859 [2006] ).
Although plaintiff has cited cases in which a breach of binding rules or governing standards requiring certain safety measures was held to have raised an issue of whether the risk of injury normally associated with the sport was unduly enhanced ( see Zmitrowitz v. Roman Catholic Diocese of Syracuse, 274 A.D.2d 613, 614 [2000]; Baker v. Briarcliff School Dist., 205 A.D.2d 652, 653–654 [1994]; Parisi v. Harpursville Cent. School Dist., 160 A.D.2d 1079, 1080 [1990] ), he presented no evidence that any such rule or standard required the use of a protective screen or a different backdrop here ( see Martin v. State of New York, 64 A.D.3d at 66, 878 N.Y.S.2d 823; Musante v. Oceanside Union Free School Dist., 63 A.D.3d at 808, 881 N.Y.S.2d 446; Honohan v. Turrone, 297 A.D.2d 705, 706 [2002] ). The conclusion that plaintiff was plainly aware of the conditions and consented to the risk that they presented also precludes his claim for negligent supervision ( see Morgan v. State of New York, 90 N.Y.2d at 487, 662 N.Y.S.2d 421, 685 N.E.2d 202; Duffy v. Suffolk County High School Hockey League, 289 A.D.2d 368, 369 [2001]; Regan v. State of New York, 237 A.D.2d 851, 853 [1997], lv denied 91 N.Y.2d 802 [1997] ). The alleged lack of supervision did not increase the risks over and above the usual dangers inherent in the sport itself ( see Fintzi v. New Jersey YMHA–YWHA Camps, 97 N.Y.2d 669, 670 [2001]; Palozzi v. Priest, 280 A.D.2d 986, 987 [2001] ).
[4] Headnote Citing References[5] Headnote Citing References Nor are we persuaded by plaintiff's reliance on the theory of inherent compulsion, which provides that assumption of the risk is not a shield from liability when the element of voluntariness is overcome by the compulsion of a superior ( compare Benitez v. New York City Bd. of Educ., 73 N.Y.2d at 658, 543 N.Y.S.2d 29, 541 N.E.2d 29 with Smith v. J.H. W. Elementary School, 52 A.D.3d 684, 685 [2008] ). Plaintiff testified that he did not ask to use an L-screen because, a few weeks prior, he had inquired as to whether they were used and was told that they were no longer used during “live” practice. Wanting to “do it the Clarkson way,” he argues that he had no option but to participate without a protective screen. Accepting plaintiff's testimony as true and viewing it in a light most favorable to him, it underscores the fact that he was aware that he was pitching without an L-screen and yet it lends no support to his assertion that his participation in the practice was compelled or involuntary ( see Musante v. Oceanside Union Free School Dist., 63 A.D.3d at 807, 881 N.Y.S.2d 446; Vecchione v. Middle Country Cent. School Dist., 300 A.D.2d at 472, 752 N.Y.S.2d 82; La Mountain v. South Colonie Cent. School Dist., 170 A.D.2d 914, 915 [1991] ).
*3 [6] Headnote Citing References Finally, contrary to plaintiff's contention, the denial of defendants' motion for summary judgment did not serve as law of the case precluding the subsequent motion to dismiss after all of the evidence was presented ( see S.L. Benefica Transp., Inc. v. Rainbow Media, Inc., 13 A.D.3d 348, 349 [2004]; Wyoming County Bank v. Ackerman, 286 A.D.2d 884, 994 [2001]; Smith v. Hooker Chem. & Plastics Corp., 125 A.D.2d 944 [1986]; Sackman–Gilliland Corp. v. Senator Holding Corp., 43 A.D.2d 948, 949 [1974]; see also Cunningham v. Vincent, 234 A.D.2d 648, 649 n. [1996] ). Thus, Supreme Court (Devine, J.) properly found that “there [was] no rational process by which the fact trier could base a finding in favor of [plaintiff]” ( Szczerbiak v. Pilat, 90 N.Y.2d 553, 556 [1997]; see CPLR 4401).
SPAIN and EGAN JR., JJ., concur.
PETERS, J.P. (dissenting).
*3 Because we do not agree that there was “no rational process by which the [jury] could base a finding in favor of [plaintiff]” ( Miller v. Moore, 68 A.D.3d 1325, 1327 [2009] [internal quotation marks and citation omitted]; see Abselet v. Satra Realty, LLC, ––– A.D.3d ––––, ––––, 2011 N.Y. Slip Op 05151, *3 [2011] ), we respectfully dissent.
Although athletes participating in interscholastic sports are deemed to have assumed the commonly appreciated risks that are inherent in and arise out of the nature of the sport generally, the athlete's “assumption of those risks is not an absolute defense but a measure of [the] defendant's duty of care” ( Ballou v. Ravena–Coeymans–Selkirk School Dist., 72 A.D.3d 1323, 1325 [2010], quoting Kane v. North Colonie Cent. School Dist., 273 A.D.2d 526, 527 [2000]; see Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657 [1989] ). Educational institutions are required to exercise “ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks” ( Benitez v. New York City Bd. of Educ., 73 N.Y.2d at 658, 543 N.Y.S.2d 29, 541 N.E.2d 29 [emphasis added]; see Ballou v. Ravena–Coeymans–Selkirk School Dist., 72 A.D.3d at 1325, 898 N.Y.S.2d 358). To that end, “[a]wareness of the risk assumed is ‘to be assessed against the background of the skill and experience of the particular plaintiff’ “ ( Benitez v. New York City Bd. of Educ., 73 N.Y.2d at 657, 543 N.Y.S.2d 29, 541 N.E.2d 29, quoting Maddox v. City of New York, 66 N.Y.2d 270, 278 [1985]; see Simmons v. Saugerties Cent. School Dist., 82 A.D.3d 1407, 1408 [2011]; Lapa v. Camps Mogen Avraham, Heller, Sternberg, 280 A.D.2d 858, 859 [2001] ).
Here, the record demonstrates that plaintiff was a freshman pitcher throwing live batting practice for the first time at defendant Clarkson University's indoor facility. Plaintiff testified that, although he had pitched at indoor facilities previously, he had always used an L-screen for protection. With regard to the conditions present, plaintiff submitted evidence, including expert testimony, that the lighting, along with the coloring of the backdrop, flooring and netting, made it difficult for a pitcher to see balls coming off the hitter's bat, which the expert described as “pretty dangerous.” Similarly, plaintiff's expert testified that the practice of not placing an L-screen in front of the pitcher in such conditions is unsafe.
*4 In sum, affording plaintiff every favorable inference ( see Miller v. Moore, 68 A.D.3d at 1327, 890 N.Y.S.2d 712), we believe that plaintiff offered ample evidence from which a jury could conclude that the risk of injury incident to his participation in the indoor practice was unreasonably increased over the inherent risks of the sport and, commensurate with that finding, that defendants owed a duty to protect him from those risks ( see Simmons v. Saugerties Cent. School Dist., 82 A.D.3d at 1408–1409, 918 N.Y.S.2d 661; Ballou v. Ravena–Coeymans–Selkirk School Dist., 72 A.D.3d at 1326, 898 N.Y.S.2d 358; Ross v. New York Quarterly Mtg. of Religious Socy. of Friends, 32 A.D.3d 251, 251–252 [2006]; Zmitrowitz v. Roman Catholic Diocese of Syracuse, 274 A.D.2d 613, 615 [2000]; Alexander v. Kendall Cent. School Dist., 221 A.D.2d 898, 899 [1995] ). As such, we find that Supreme Court erred in entering a directed verdict in favor of defendants and would reverse and remit for a new trial.
ORDERED that the order is affirmed, with costs.
STEIN, J., concurs.
FN1. Although plaintiff appeals from Supreme Court's order, we treat the appeal as validly taken from the judgment ( see CPLR 5520[c]; Boylan v. Dodge, 42 A.D.3d 632, 633 n. [2007]; Matter of General Motors Corp. [Sheikh], 41 A.D.3d 993, 994 [2007] ).
N.Y.A.D. 3 Dept.,2011.
Bukowski v. Clarkson University
--- N.Y.S.2d ----, 2011 WL 2713712 (N.Y.A.D. 3 Dept.), 2011 N.Y. Slip Op. 05912
END OF DOCUMENT
This is a not-uncommon occurrence:
http://www.youtube.com/watch?v=FSpHXH6TOo8
http://www.youtube.com/watch?v=i4sRejNFgmU&feature=related
http://www.youtube.com/watch?v=ercQ4eXW4ks&feature=related
Last semester one of my Law & Justice students researched the subject and found that ball clubs and arenas are rarely held legally responsible for balls that bean players and fans"
HOW MUCH RISK DOES A FAN ASSUME?
EVE SISKIN
April 14, 2011
There are over four hundred sports facilities in the United States and all must deal with a vast array of legal issues. Two of the major issues that a General Manager of a sports facility must address are negligence and assumption of risk. In this analysis, five legal cases will be discussed. Each case involves the issues of negligence and assumption of risk, and so it is important that these issues are defined clearly in order to understand why a particular verdict was rendered in each case.
Quite simply, negligence is defined as the failure to use reasonable care. A more comprehensive definition would be to participate in an action that a prudent person would avoid, or not participating in an action that a prudent person would be expected to do in normal circumstances. There is a test which is followed in order to legally conclude that someone has acted in a way that a normally prudent person would not. The “negligence test” includes five elements which must be met to make a claim for negligence: 1) Duty of care; 2) breach of duty; 3) factual causation or direct care; 4) legal causation, and 5) harm. If all of these elements are shown and a reasonable person could not have foreseen the event, then a claim of negligence can be filed.
The definition of assumption of risk is the acceptance of the hazard or danger associated with a certain activity. In tort law, assumption of risk is when the plaintiff voluntarily exposes him or herself to the risk of damage, injury, or loss, after understanding that the situation is dangerous and nevertheless makes the decision to participate in that particular activity.
Given these definitions, we can analyze five legal cases with which five different general managers have dealt over the past several years.
The first case took place in New York in 1998: Scott Hawley v. Binghamton Mets Baseball Club, Incorporated. In this case the plaintiff was injured by a baseball that was projected from a pitching machine. The plaintiff successfully caught the first two balls but the third ball hit him in the eye which caused severe injuries. The plaintiff sued the facility for negligence, saying that he was unaware of the dangers that came along with this promotional activity. The defendants were granted a summary judgment on the grounds that the plaintiff had assumed the risk since he was a frequent baseball attendee. The court believed that the defendants performed their duty of care in that they did not fail to warn the plaintiff of non obvious dangers. The plaintiff argued that as they did not provide him with protective equipment therefore they did not provide reasonable care. The court decided that since the plaintiff voluntarily participated in a promotional activity, and not in an organized athletic event, the plaintiff assumed the risk associated with this event. The judge reviewing the case, the Right Honorable Judge Cardona, also stated that even though wearing protective eye gear would have helped to prevent an eye injury, the risk of this activity was so obvious that he, the judge, did not feel that the defendants breached any sort of duty by not providing the plaintiff with protective eye gear.
After reviewing the facts of the case and reading the outcome that the court reached, I would agree with the defendants. The plaintiff was a frequent customer of this facility and was aware of the dangers when taking part in this game. He was also aware of the dangers when he decided to participate in a catching activity. Since he had seen several baseball games in the past, he was aware how fast these baseballs can be thrown. Therefore he should have realized the dangers inherent in this activity. Also, the defendants could not have reasonably foreseen this accident, and thus, they had no reason to provide protective gear.
A concession vendor at a baseball game probably would not expect to get hit by an aggressive fan while he attempted to catch a T-shirt that was launched into the crowd during a promotional activity between innings.
In 2007 in Queens, New York, a concession vendor did fall victim to such an incident. In the case of Norman Cohen v. Sterling Mets, L.P., the Plaintiff. Norman Cohen brought a personal injury action against the Defendant, Sterling Mets. Cohen was a concession vendor at Shea Stadium, and fell to the ground after being knocked down by a fan that was running for a T-shirt which had been thrown into the crowd during a promotional activity. The defendants said that the vendor assumed the risk of injury since this was not the first time that the vendor had worked at this stadium; and furthermore, since he had worked at this stadium for so many years he had tacitly consented to risks that are involved when attending or working at a baseball stadium. It is important to note that the T-shirt launch did not happen during the official baseball game, but a T-shirt launch was a customary and regular occurrence at this venue during a baseball game and was considered to be part of the Shea Stadium experience. To fulfill their duties owed to all spectators and employees, the management made an announcement over the loudspeaker informing everyone present that the T-shirt launch was about to commence. Security and event officers were stationed throughout the stadium at the time of the launch. The Plaintiff argued that the assumption of risk defense was not applicable in this case because he felt that he was forced to continue working even though a possible dangerous event might occur. The judge presiding over this case did not feel that the Plaintiff showed proper evidence to say that he was actually forced to continue working while this T-shirt promotion was being launched.
After reviewing the facts of the case and reading both the Plaintiff and Defendants’ arguments, I agree with the Judge and Defendants. While it is unfortunate that Mr. Cohen was injured, it was an accident that could not have been anticipated. The Defendants could not have known that an aggressive fan would forcefully run into the Plaintiff and thus knock him to the ground. Cohen along with all others present at the stadium that evening was aware and warned that this launch was about to happen and since Cohen had been witness to this activity multiple times on previous occasions, he should have taken proper precautions to prevent harm to his person. The Defendants performed their duties by making a clear public announcement, as well as ensuring that security personnel were posted around the stadium for extra safety and security. The Defendants did all that they could to make sure that all participants and spectators were protected. The Defendants could not be responsible for an action that a fan does in the emotional excitement of a game, and therefore could not have been expected to protect the vendor.
To say the least, a hockey puck to the mouth is an unpleasant experience. On April 18, 1999 Holly Ann Nemarnik, the Plaintiff, was attending a Kings Hockey game. Nemarknik had a fourth row season ticket seat, and during the warm-ups, several pucks were in play. One of the pucks flew off the ice and hit Nemarnik in the mouth. She sued The Los Angeles Kings Hockey Club, the defendants, for damages, as she had sustained several severe injuries. It is well known that hockey is a dangerous sport for the player and at times even for the spectators. But does one assume a risk of injury just by entering and being seated in the stadium? The Plaintiff did not think so, and claimed that due to poor crowd control, the opportunity for her to be injured was greater than usual. Nemarnick says that because there was inadequate crowd control, she did not have a clear line of sight onto the ice rink, and therefore she could not anticipate the need to evade a blow from the puck. She took the position that if she had been provided with a clear line of sight, then she would have been able to prevent her injuries. The Right Honorable Judge Smaltz, who presided over this case, agreed with the Defendants and said that the reason the Plaintiff got hurt was not because of poor crowd control but rather because the possibility of flying pucks is an integral part of the game. The court affirmed that the defendants were immune from liability under the primary assumption of risk doctrine. As in baseball, where stadium owners do not need to eliminate the risk of a spectator getting hurt from a fly ball, a hockey arena does not have a duty to eliminate the risk of a spectator getting hit with a flying puck; it is part of the game and the experience. The court further said that, at sporting events, obstruction of views is a normal occurrence and virtually impossible to eliminate.
After reviewing the facts of this case I find I am more likely to agree with the Plaintiff. I have attended many hockey games in my life and I am perfectly aware of the potential dangers when attending one of these games. However while reading the facts of this case, I noted that there is a handbook for the ushers at a hockey game, and one section of this handbook says, “During game action you MUST stop latecomers from blocking the view of seated guests. Politely request all ticket holders to stand along the back wall or the base of the stairway until there is a stoppage of play….One of the primary functions of the guest services department is to protect the personal safety of all our guests.”
After reading that section of the handbook, I could not understand why the stadium was not held liable. The Plaintiff stated that as a season ticket holder she had never before seen so many people congregated in the section where she was seated, and that at no time did the ushers ask that the crowd move or settle down. While I understand that this incident happened before the game, there were still pucks on the ice that could be dangerous to spectators; therefore, shouldn’t the abovementioned section in the handbook still be followed? Perhaps Ms. Nemarnik would have still been injured if the ushers had seated those audience members, but it is also possible that Nemarnik would have had the time to perform an evasive move that would have prevented her injuries.
In another case similar to the above mentioned case of the vendor, Norman Cohen, there is another case of a spectator who was hit by an aggressive fan who was trying to catch a football that had cleared the goalpost during a Pittsburgh Steelers game on December 6, 2002.
Mr. Telega and his wife had been season ticket holders for the last two years in section 41 of the end zone. During the last quarter of the December 6th game, the kicker of the Pittsburgh Steelers attempted a field goal. The football went over the goalpost and when Telega saw the ball headed his way he stood up in front of his assigned seat and caught the ball. As Mr. Telega was sitting down in his seat, an aggressive fan thrust Telega from his seat and trampled him face first into the cement, and then took the football from him. Mr. Telega suffered severe injuries including facial lacerations, a sprained shoulder and a broken nose that required surgery. It is important to note that Mr. Telega and other guests in the stadium complained to the Guest Relations Office and security personnel about the lack of security and crowd control in their section. It is also important to point out that a football clearing the goalpost and landing in this section happens often and it regularly causes a disturbance among the fans.
In the end Mr. Telega sued Security Bureau Incorporated for damages from the injuries he sustained because he was struck by an aggressive fan who was attempting to steal the football from him. Telega believed that the stadium management breached their duty because the security guards were not properly supervised and were not told to conduct crowd control in the end zone. The court originally granted the defendants summary judgment based on the premise that this type of injury is common and foreseeable. Telega pointed out that the “no duty” rule applies to risks that are common and foreseeable in nature; therefore the “no duty” rule would be inapplicable; since there is no possible way that he could have known catching a football would we have him planted face first into cement. Mr. Telega believes that this incident was due to the negligence of the Defendants and feels they are ultimately responsible for his injuries. The Defendants believe that this incident is a risk that the fan must assume will happen, and therefore fans accept the risks when they enter the stadium to watch the game.
After reading the facts of the case I do not understand why the Defendants were not held responsible. The Plaintiffs had been attending Steelers games for the past two years and while the football often ended up in the end zone seating area no other incident like this had occurred. It makes me wonder if in the past the security personnel had been more diligent. If several patrons had brought the lack of crowd control and security to the stadium’s management’s attention, I wonder why extra measures were not taken to prevent this kind of incident. I wonder why the “aggressive fan” was not held responsible for his actions. As far as this case study goes it does not appear that the “aggressive fan” was sued. I am also curious why security did not immediately step in and diffuse the situation. I sympathize with this Plaintiff and agree that others should be held responsible for this incident. The Defendants had been made aware of the problem of security and crowd control in section 41, and should have had a plan in place should something like this happen. It is my feeling that both the Defendant and the “aggressive fan” are responsible and liable for the injuries sustained by the Plaintiff.
So far in the cases mentioned, judgment was entered in favor of the Defendants. Based on these cases it might appear that all stadiums are safe from being sued. Not so in this next case.
In Louis Maisonave and Myrna Maisonave v The Newark Bears Professional Baseball Club, the Plaintiffs won their suit. Mr. Maisonave was standing in line at a concession stand on the second level of Riverfront Stadium while attending a Newark Bears minor league baseball game. The mezzanine level where Mr. Maisonave was standing was an open area where beverages and refreshments were on sale, and there were also restrooms in the area. At the time of the incident several carts were lining the open area that stretched along the baseball field by the first and third base lines. There was netting that protected the seating area but this particular area was not protected by the netting. Mr. Maisonave was paying no attention to the game and was talking to other patrons in line when he was struck by a foul ball and sustained injuries to his eyes including a fracture to the orbital bone. The Maisonave’s sued the Newark Bears Professional Baseball Club and Gourmet Dining Services for negligence stating that since this was a common area for patrons to gather before entering the stadium that it was incumbent upon them to provide appropriate protection.
Originally the trial judge found in favor of the Defendants saying that the Bears had not breached their duty of care. Later that decision was reversed on appeal and it was held that an owner, or those operating the stadium, must provide protected areas within the stadium where patrons might reasonably congregate, and one such place would be the mezzanine level where food and restrooms were to be found, and where this incident occurred. The case held that owner owes a duty of reasonable care to protect against dangerous situations that could be foreseen on the property. The Plaintiff went to the closest beverage cart alongside the netting and admits that he was not aware of where the netting ended. Since the cart was beyond the protection of the netting, the Plaintiff could reasonably assume he would be safe since there was no netting, implying to a reasonable patron that the ball could not reach that area.
After reading all the notes on this case I would agree with the final judgment. Why would any patron assume, or be deemed to assume that he would get hurt in an area where the stadium put restrooms, and concession stands? Netting or some other form of protection should have been in place in any area where patrons had a reasonable expectation of being secure. Although it is not a regular occurrence to have a foul ball end up on a mezzanine level, the fact is it could and did happen, and therefore the stadium should be considered responsible for the injuries that did occur during that incident, under the doctrine of duty of care.
While it seems that in most cases mentioned in this paper the Defendant is found not responsible for liability it is also clear, as in the Newark Bears case, Defendants have not always kept to a reasonable duty of care. In all of these cases the two key terms Negligence and Assumption of Risk were discussed. It seems that in the usual situation, the patron takes on the assumption of risk that comes with attending a sporting event, whether it is a flying puck, flying fan or a foul ball.
There are qualifications that must be met in order to make a successful claim for negligence. In most of the cases, these qualifications were not met or the claim unfounded, but in the facts of the Newark Bears case, the court held that the Plaintiff should not have had to assume any risk in an area where there were vendors and restrooms, and the Plaintiff was able to show that his expectations were reasonable and that any prudent person would expect that same protection. Therefore this last case truly satisfied the five elements of “negligence test” mentioned at the opening of this paper.
Works Cited:
1) “Assumption of Risk Law Definition.” YourDictionary. N.p., 2011. Web. 14 Apr. 2011.
2) Deakin, Simon, Johnston Angus, and Basil Markesinis. Markesinis and Deakin’s Tort Law. N.p.: Oxford University Press, 2003. N. pag. Print.
3) Holly Ann Nemarnik v. The Los Angeles Kings Hockey Club, L.P. No. 103 Cal. App. 4th 631; 127 Cal. Rptr. 2d 10. Court of Appeal of California. 9 Oct. 2002. N.p., n.d. Web. 2 May 2011.
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6) “Negligence.” The ‘Lectric Law Library. N.p., 2011. Web. 14 Apr. 2011.
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8) Scott Hawley v. Binghamton Mets Baseball Club, Inc. No. 262 A.D.2d 729; 691 N.Y.S.2d 626. Supreme Court of the US. 10 June 1999. N.p.,
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