Patron’s Lawsuit Claiming Intoxicated Usher Fell on Her Is Dismissed

Jun 22, 2007

*By Jarett Warner
 
The Supreme Court of the State of New York, County of Queens has dismissed a lawsuit commenced by a patron who alleged that an intoxicated usher fell on her at Shea Stadium causing her personal injuries.
 
The plaintiff Sandi Marano commenced an action against Sterling Mets, L.P., incorrectly sued as the New York Mets, the New York Mets Baseball Club and Sterling Doubleday Enterprises (“Sterling”), alleging that on August 17, 2002, while plaintiff was sitting in her seat at Shea Stadium, an usher walking through the aisles fell on top of her. The plaintiff’s Verified Complaint asserted a negligence cause of action. More specifically, she claimed that Sterling was negligent in the ownership, operation, control, maintenance and day-to-day administration of Shea Stadium and in failing to properly hire, train and instruct its ushers.
 
At her deposition, the plaintiff had no recollection of whether the ground was wet and admitted that the usher did not fall because of a maintenance issue. Although the plaintiff claimed that when the usher fell on her, he had a scent of alcohol on his breath, she admitted that she never observed the usher drinking, was not aware of anyone else having observed him drinking, never came to learn he had, in fact, been drinking and she did not notice anything unusual about the usher’s behavior prior to his fall. The plaintiff also admitted that she never came face-to-face with the usher at the time of the fall. She was also unaware of any prior complaints or incidents involving this usher, despite the fact that she had attended approximately fifteen games a season at Shea Stadium for the prior five years.
 
In addition to the plaintiff’s own deposition testimony, in support of its motion for summary judgment, Sterling submitted an affidavit of the usher, whose deposition was not sought by the plaintiff. The usher stated that at the time of the accident he was escorting people to the seats behind the plaintiff when he suddenly and unexpectedly fell onto the plaintiff from behind. He also stated that prior to the accident he had worked as an usher at Shea Stadium for approximately five years, and at no time did he ever report to work or attempt to work under the influence of alcohol.
 
In opposition to Sterling’s motion, the plaintiff claimed there was a question of fact requiring a trial, since the usher stated he fell suddenly and unexpectedly whereas the plaintiff offered a reason for the usher’s fall – that the usher “ha[d] a scent of alcohol on his breath.”
 
The court concluded that the defendant met its burden for summary judgment by demonstrating that the plaintiff could not identify the cause of the accident. The court found that there was no evidence that Sterling had actual or constructive notice of any condition within Shea Stadium which caused the usher to fall and that there was no evidence supporting the plaintiff’s claim that the usher had been drinking and was intoxicated. The court noted that “[s]ince it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation” and that “[u]nder these circumstances, where there are several equally plausible explanations for the accident, and no competent admissible proof, only speculation, as to the cause of the accident, the defendant’s motion for summary judgment dismissing plaintiff’s negligence claim must be granted.”
 
Finally, the court found that no evidence that the usher had a propensity to fall and thus no basis for the plaintiff’s claims of negligent hiring and supervision. There was also no evidence to impose liability for Sterling’s alleged failure to train, instruct, supervise or direct the usher.
 
Attorneys for Record: (for plaintiff) Steven R. Payne, Esq., Michael W. Kennedy, LLC, New York, New York; (for defendants) Jarett L. Warner, Esq. and Carla Varriale, Esq., Havkins Rosenfeld Ritzert & Varriale, LLP, New York, New York.
 
*Mr.. Warner is an associate at Havkins Rosenfeld Ritzert & Varriale, LLP in New York, New York. Warner and Carla Varriale, a partner at the firm, have litigated several high profile cases for professional and minor league sports teams. They also counsel risk managers, venue owners and operators, general counsels and clients with self-insured retentions to minimize liability and to develop successful litigation strategies. If you would like a copy of the Court’s decision, he can be reached at Jarett.Warner@hrrvlaw.com, or (212) 488-1598.
 


 

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