By Carla Varriale, Esq.
A New York state court granted summary judgment to a group of defendants, including the owners of New York Mets, in a negligence action brought by a spectator who tripped and fell over what is commonly referred to as a “yellow jacket” or a cable cover. The cable cover was used in connection with the broadcast of the 2015 Championship Playoff games at Citi Field (the “Stadium”). The cable cover was placed over wires that were located in the parking lot near the entrance to the stadium.
Plaintiff sued the New York City Department of Parks and Recreation, The City of New York, Queens Ballpark Company, L.L.C., Sterling Mets L.P., and Metrovision Production Group, LLC. The defendants were represented by Havkins, Rosenfeld, Ritzert & Varriale. Plaintiff alleged, among other things, that defendants were negligent in their maintenance of the premises. He claimed that they created a “dangerous condition,” and that the cable cover constituted a tripping hazard. He also claimed the parking lot lacked sufficient lighting and lacked sufficient crowd control and that he was not able to observe the cable cover before the accident.
Defendants New York City Department of Parks and Recreation, The City of New York, Queens Ballpark Company, L.L.C., and Sterling Mets L.P.(the owners and operators of the Stadium) moved for summary judgment because the cable cover, which was described by plaintiff as a seven-inch high, nine-inch wide, and a 25-foot long object, was not actionable as a matter of law. Defendants successfully argued that, based on plaintiff’s own description, the cable cover was open and obvious and not inherently dangerous. In addition, they argued that plaintiff’s actions were the sole proximate cause of accident because he failed to make reasonable use of his sense before he tripped over the cable cover. Although plaintiff alleged there were lighting issues and crowd control issues that prevented him from seeing the cable cover, defendants established that he previously admitted that he was looking straight ahead while he was walking into the stadium and further admitted he had no trouble observing his friend who was a few feet in front of him. His friend had no problems traversing the same area moments before plaintiff and had no issues with the alleged “condition.” There were no other spectators in proximity to plaintiff before he fell, and no one jostled or pushed him. Defendant Metrovision Production Group, LLC (the owner and operator of the broadcast truck on the premises) moved on similar grounds.
Plaintiff opposed the motion and argued that that the photographs annexed to the defendants’ motions did not reflect the actual lighting conditions that existed at the time of the accident. Moreover, plaintiff’s counsel argued that the cable cover was black and unmarked, which negated any argument that the cable cover was readily observable. In his opposition, he submitted his own self-serving affidavit that contradicted his prior sworn testimony.
In reply, defendants countered that they had met their burden as the movants for summary judgment and that all plaintiff had provided in his opposition was an attorney’s hearsay affirmation and a feigned issue of fact affidavit that should be disregarded. Defendants reiterated that the cable cover constituted an open and obvious condition based on plaintiff’s own description of its dimensions and placement, as matter of law, and the photographs demonstrated that even a half hour after the accident, there was sufficient lighting around the area of the alleged accident. Plaintiff had an opportunity to observe the cable cover, had he paid attention to where he was walking, according to defendants. There were no overcrowding or lighting issues, per plaintiff’s own testimony.
Defendants’ motion was granted by Justice Alan Weiss of Supreme Court, Queens County. The judge noted that the height, dimensions and position of the cable cover rendered it an open and obvious condition that was not inherently dangerous as a matter of law. There is not a duty to protect or to warn of an open and obvious area because the “condition” itself served as a warning to a person making reasonable use of his or her senses. Moreover, the court held that plaintiff’s own affidavit was an effort to feign a question of fact requiring a trial and the court disregarded it and held that it was insufficient to raise a triable issue of fact.
Carla Varriale, Esq. and Maria Scalici, Esq. represented the New York City Department of Parks and Recreation, The City of New York, Queens Ballpark Company, L.L.C., Sterling Mets L.P., They can be reached at carla.varriale@hrrvlaw.com and maria.scalici@hrrvlaw.com.
