High Court Denies Appeal in Foul Ball Case

May 22, 2004

The Court of Appeals for the State of New York denied last month the appeal of a plaintiff, who was struck by a foul ball at a baseball game, and subsequently sued for negligence.
The decision in Ray et al. v. Hudson Valley Stadium Corp. et al. was significant in that plaintiffs’ counsel had sought to pierce the state’s Akins Rule, Akins v. Glens Falls City School District, 53 N.Y. 2d 325, 424 N.E. 2d 531, 441 N.Y.S2d 644, by claiming that technology and the affordability of protective netting means that stadium owners, at least in New York, should do more to protect patrons.
Carla Varriale of Ohrenstein & Brown in New York City, the attorney for the defendant in the case, said she currently has another case as well, where the plaintiffs are seeking to defeat the Akins Rule by claiming that the stadium, by encouraging fans to direct their attention away from the field of play, is liable for an accident that occurred.
“If they, or another plaintiff, is able to pierce through the Akins Rule then I believe it will spark legislation, similar to what they have in Illinois, where they have the Baseball Facility Liability Act,” said Varriale.
Varriale said she “held her breath” when the Court of Appeals agreed to hear the appeal in Ray, especially after the state’s Appellate Division, Second Department had affirmed a the trial court’s decision to grant the defendant’s motion to dismiss.
The impetus for the suit was an injury sustained plaintiff Pinaki Ray when he was struck by a foul ball while attending a game on July 4, 1999 at Dutchess Stadium in Beacon, N.Y. Ray, who was seated just beyond the protective netting along the first base line, sued, alleging that the defendants “were negligent in failing to provide proper and cost-effective protection against the hazard of foul balls to spectators in the plaintiffs’ seating area.”
As mentioned above, the plaintiffs were denied at the trial court level and again on appeal. In their motion to the Court of Appeals, the state’s court of last resort, they argued that “since Akins and its progeny was decided, technology advances have been made so that inexpensive, unobtrusive and reliable protective netting is available to protect spectators in the area of greatest danger behind home plate and along the first and third-base lines.”
To further its position, the plaintiffs relied heavily on an expert witness, Gil Fried, J.D., who testified that the defendants should have been using cost-effective screening, which is recent years has come to “provide a high level of strength, while not interfering significantly with the ability of spectators to view a game freely.”
The plaintiffs also noted other state case law in New York, involving other sports, such as hockey and auto racing, where the courts, it claimed “recognized increased duties with respect to spectator protection.”
However, the high court was unmoved, denying the motion for leave to appeal.


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