The holding company for the New York Mets (Sterling Mets, L.P.) got a tremendous start to the 2009 baseball season with a legal victory last month when New York’s Appellate Division, Second Department affirmed a trial court ruling in a unique negligence action involving a vendor at Shea Stadium.
In Norman Cohen v. Sterling Mets, L.P., the plaintiff alleged that while he worked as a concession vendor at the Stadium, he sustained personal injuries after he was struck by a spectator who sought a t-shirt that had been “launched” into the stands. The t-shirt launch is a promotional activity and is a common feature at many sporting events. Prior to the t-shirt launch, Sterling provided announcements than the t-shirt launch was about to begin and provided security personnel during the event.
In dismissing the plaintiff’s negligence action against Sterling, the Supreme Court, Queens County held that Sterling established that it was entitled to summary judgment because it did not breach a duty of care to the plaintiff based upon the doctrine of assumption of the risk (which has extensive application in cases involving spectators and participants) of an open obvious condition. As a seasoned vendor who had worked at the Stadium and other venues for years, the plaintiff unquestionably appreciated the risks that were associated with working in unprotected parts of the Stadium.
The Court also noted that spectators’ alleged frenzied and dangerous reaction to the t-shirt souvenirs was no different that their effort to obtain a souvenir baseball. The Court further held that a spectator at a sporting event is deemed to have consented to those risks commonly appreciated which are inherent in and arise out of the event—those risks include the risk of injury presented because bats, balls or t-shirts may enter the stands. The Court held that the plaintiff’s arguments that the t-shirt toss was conducted in between innings and is a promotional activity that is not a part of the game were “without merit.”
The Court rejected the plaintiff’s arguments that the assumption of the risk was not a defense because he failed to demonstrate that he was under an economic or other compulsion to work during the t-shirt launch, notwithstanding his concerns about the purported dangerous condition.
The Appellate Division, Second Department affirmed, holding that Sterling demonstrated its entitlement to judgment as a matter of law based on the doctrine of primary assumption of the risk. In opposition, the plaintiff failed to raise a triable issue of fact.
Attorneys of Record: (for defendant)) Carla Varriale and Jarett L. Warner represented Sterling Mets, L.P.
Norman Cohen v. Sterling Mets, L.P.; Supreme Court of the State of New York, Appellate Division, Second Department; 2009 NY Slip Op 495, 2009 N.Y. App Div. Lexis 531 (2009); 1/2709
