A state court judge has denied the NFL’s motion for summary judgment in a case in which the league was sued by a fan for the actions of an independent contractor.
Margaret Watters, a 59-year-old Massachusetts woman, was participating in a contest put on by the league, which solicited ideas from football fans about the best “Super Bowl Commercial Ever.”
Accordingly, she drove to Giants Stadium in East Rutherford, New Jersey on November 16, 2006, to submit her idea.
“Upon arrival at Giants stadium,” wrote the court, “Watters was greeted, registered, and signed a release and waiver form. The release provides in relevant part, at paragraph number 10, that Watters does ‘release, discharge, and hold harmless the NFL . and any and all others connected with the Contest… from any and all liability or claims arising out of, or in any way resulting from, my participation in the Contest… I agree not to make any claim whatsoever against the Released Parties as a result of my participation in the Contest…’
“Watters was then directed to a lounge area to prepare to give her pitch. Upon informing a staff member that she was ready, Watters was taken to a busy corridor to be professionally miked up by a sound engineer.”
Audio engineer Jay O’Hare is a 40-year-old man living in New Jersey. He has over 15 years experience as an audio engineer and was working as an independent contractor for the NFL. O’Hare supplied his own equipment, including wireless microphones. O’Hare testified that in his career, he had miked up more 5,000 people. The method employed was to take a small condenser microphone that has a cable attached to a wireless transmitter, and adhere it with foot foam, ideally to the inside of the person’s clothing near the xiphoid process, a bone below the rib cage. The foam, and the location of the microphone, are both important to prevent rubbing noise from being picked up by the microphone.
“O’Hare testified that on the day of the contest his routine was to ask if the contestant either wanted to put the microphone on themselves, or if they wanted him to do it,” wrote the court. “If the person wanted O’Hare to place the microphone, O’Hare would explain where it was going.
“Wattcrs testified that when asked, she agreed to be miked up, telling O’Hare that she was familiar with these mikes. Watters alleges that as the microphone was placed underneath her sweater, the back of O’Hare’s hand rubbed up against her breasts. After performing her pitch, Watters did not win the contest.”
She did sue, however, setting forth a single mixed cause of action for assault, battery and negligence, alleging that she was “fondled by O’Hare in a sexual manner.”
The NFL moved for summary judgment, arguing that the negligence, assault, and battery claims all fail as a matter of law. The NFL also argued that it cannot be held liable for the acts of an independent contractor … and the claims are barred by release and waiver.
Watters, represented by Salvatore DeSantis, countered that O’Hare “committed a battery by intentionally putting his hand up (her) sweater. (She) also argued that the issue of whether O’Hare is either an employee or an independent contractor is a question of fact for the jury, and the release and waiver form deals with intellectual property claims.
“In order to make out a prima facie claim of battery, a plaintiff must establish that there was bodily contact, that the contact was harmful or offensive, and that the defendant intended to make the contact without the plaintiff’s consent (Wende C. v United Methodist Church N.Y. W. Area, 4 NY3d 293, 827 N.E.2d 265, 794 N.Y.S.2d 282, cert denied 546 U.S. 818, 124 S. Ct. 346, 163 L. Ed. 2d 57 [2005]).”
The court held that the plaintiff raised “a triable issue of fact in dispute concerning the alleged offensive touching.”
It also seemed to side with the plaintiff on whether the NFL could avoid liability because the technician was an independent contractor, finding “there are questions of fact concerning the level of control over (him).
“Accordingly the motion is denied. Parties are to proceed with the scheduled mediation.”
Margaret M. Watters v. National Football League INC., et al.; S. Ct. of N.Y., New York Co.; Index No. 108819/07, 2011 NY Slip Op 30924U; 2011 N.Y. Misc. LEXIS 1631; 3/29/11
