By Carla Varriale, of Havkins, Rosenfeld, Ritzert & Varriale
The limited-duty of care rule and the doctrine of assumption of the risk are bedrock defenses for sports and recreational venue owners and operators. An unsettled aspect of these defenses, however, is whether they apply to a spectator who is injured because of promotional activities conducted at the venue. Some courts hold that these activities are fan-friendly and commonplace and that a spectator can assume the risk of injury from a tossed souvenir just as he or she can assume the risk of injury associated with being injured by an errant ball, puck or bat. Some courts (the recent Kansas City Royals case arising out of a hot dog projected into the stands by its mascot is an example) reject the idea that a spectator can assume the risk of injuries associated with the t-shirt toss or hot dog throw because they are not an “inherent” in the sport.
The Supreme Court of Nevada weighed in on the issue this summer. In FCH1 v. Enrique Rodriguez, 326 P.3d 440, 2014 Nev. Lexis 55, 130 Nev. Adv. Rep. 46 (2014), the Supreme Court upheld the trial court’s decision after a bench trial that neither the limited-duty of care nor assumption of the risk applied to the facts of the case. In that case, a patron of the Palms Casino Resort’s (the “casino”) “Sportsbook” sports bar sustained injuries when another patron dove for a souvenir tossed to a group of patrons watching a sporting event on television. At trial, the casino was held liable for the patron’s personal injuries and the trial court awarded him $6,051,589.00 in damages.
The Supreme Court surveyed cases where the limited-duty of care was applied. The cases it considered were from Nevada, such as Turner v. Mandalay Sports Entm’t, L.L.C., 124 Nev. 213, 220-221, 180 P.P.3d 1172, 1177 (2008) (limited-duty of care applied in negligence action brought by spectator struck by errant baseball because stadium owners and operators discharged their limited-duty of care and provided protected seating and a foul ball was a known, obvious and inherent part of the game) and from other jurisdictions including New York, such as Pira v. Sterling Equities, Inc., 16 A.D.3d 396, 79- N.Y.S.2d 551, 552 (2nd Dep’t 2005) (no duty of care owed plaintiff struck by souvenir baseball tossed by player). The Supreme Court distinguished these cases from the case it was considering because the injured patron was watching a sporting event on the television at the casino’s sports bar and not while he was a spectator at a live game. The Supreme Court also noted that the injured patron was hit by a third-party patron diving for promotional gear, not a piece of sporting equipment involved in the game itself. Consequently, the Supreme Court determined that the trial court correctly declined to find that the casino did not owe the patron a duty of care as a matter of law.
The casino’s assumption of the risk defense was likewise rejected for the simple reason that the patron was watching television at the time he was injured and one of the risks inherent in that activity is not getting struck by someone leaping for a souvenir.
The decision is also interesting because the Supreme Court determined that the case must be remanded for a new trial because the trial court committed reversible error during the trial by excluding the testimony of Forrest Franklin, the casino’s expert on security and crowd control. The expert proffered a definitive opinion that tossing promotional items into crowds is not uncommon and generally was safe was based on his research and expertise. His proposed testimony was not, therefore, based on speculation. Moreover, the patron did not present any evidence refuting the expert’s testimony that the casino acted reasonably and that the patron’s injury was not foreseeable. According to the Supreme Court, the trial outcome may have been different if this critical testimony had been admitted. Consequently, the case was reversed and remanded for a new trial (albeit with a different judge).
