Appeals Court: Spectator Assumed Risk In Spite of Location of Injury

Aug 13, 2004

A New York appeals court has affirmed a ruling against a spectator at a soccer game, who had unsuccessfully claimed that the organizers of the game and its participants were liable for an injury he suffered when he was struck by an errant soccer ball in a rest area.
The ruling was significant in that the plaintiff had argued that the placement of the tent offering shade to spectators behind the goal undermined the defendant’s argument that the plaintiff had assumed the risk of injury.
The incident occurred on May 30, 1999 when the plaintiff was watching his son play in a soccer tournament. Taking a break from the action, the plaintiff walked to a tent that was some 30 to 40 yards behind the goal line to get a sandwich. While there, he was struck by a soccer ball coming from another field, where some players had been warming for the next game. Sutton was allegedly injured, and thus sued the Eastern New York Youth Soccer Association, Inc., the teams and the boy who kicked the ball. The trial court granted summary judgment to all defendants, finding that plaintiff assumed the risk. The plaintiff appealed.
On appeal, the Supreme Court Appellate Division Third Judicial Circuit reviewed each of the plaintiff’s arguments.
First, he claimed that since he was not a voluntary spectator of the match at the time of injury, he could not have assumed the risk. The appeals court disagreed, noting that the court in Sutfin v. Scheuer — 145 AD2d 946, 947-948 (1988), affd 74 NY2d 697 (1989) – found that assumption of risk applied to spectators as well as participants.
Second, he claimed that the placement of the tent “enhanced the risk to spectators at the game, thereby undermining the argument that plaintiff assumed the risk.” The court relied heavily on Aikens v. Glens Fall City School Dist., 53 N.Y.2d 325, 329, 424 N.E.2d 531, 441 N.Y.S.2d 644 [1981], the definitive case in New York state addressing the duty of care owed a proprietor of a baseball field to its spectators.
“Unlike baseball parks, outdoor soccer fields typically have no protective screening or fencing for spectators, presumably because the ball is larger and moves slower, enabling the spectator who observes a ball coming his or her way to avoid being struck,” wrote the court.
“Indeed, plaintiffs do not suggest that, in the exercise of reasonable care, defendants had a duty to provide any protective measures along the sidelines Honohan v Turrone, 297 A.D.2d 705, 747 N.Y.S.2d 543 [2d Dept 2002]. Instead, plaintiffs assert that defendants unreasonably enhanced the risk of injury to plaintiff by essentially inviting him to stand at the end of the field through their placement of the team tent. Although we agree that a factual question has been presented as to whether the risk of being struck by a soccer ball is enhanced when a spectator is standing behind the goal line, we find that question immaterial to the disposition of this action. There is no suggestion that there was not adequate room for the spectators to remain along the sidelines; in fact, plaintiff was seated along the sidelines prior to moving to the tent to get a sandwich (see Wade-Keszey v Town of Niskayuna, 4 A.D.3d 732, 733-735, 772 N.Y.S.2d 401 [2004]; see also Davidoff v Metropolitan Baseball Club, 61 N.Y.2d 996, 998, 463 N.E.2d 1219, 475 N.Y.S.2d 367 [1984]).
“Accordingly, just as the owner of a baseball park is not responsible for the spectator who leaves his or her seat and walks through a potentially more hazardous zone to reach a bathroom or concession stand, thereby assuming the open and obvious risk of being hit by a ball, defendants here cannot be held responsible for the risk assumed by plaintiff when he, aware that players were active on the field, left the sidelines and stood in the tent positioned in the arguably more dangerous zone behind the goal line (see Wade-Keszey v Town of Niskayuna, supra at 402).”
The court also noted that the plaintiff had been to soccer games for 14 years and for that, and other reasons, “should have appreciated the risk of being hit by an errant soccer ball.”
Finally, it noted that the young player who struck the ball that injured the plaintiff should not be held liable since the player’s act was not “reckless” or “intentional.”
D. James Sutton et al. v. Eastern New York Youth Soccer Association, Inc. et al., S.Ct.N.Y., App. Div., 3d Dep, 94839, 6/17/04
Attorneys of Record: (for plaintiff) Dreyer Boyajian L.L.P., Albany, James R. Peluso of counsel; (for defendant) Roemer, Wallens & Mineaux L.L.P., Albany, Matthew J. Kelly of counsel.


Articles in Current Issue