The Supreme Court, Nassau County has concluded that patrons at a Long Island Ducks baseball game assumed the risk of injury as a result of a foul ball and that the defendant discharged its duty of care.
The plaintiffs William May and Jodi May commenced an action in the Supreme Court, Nassau County against Long Island Ducks Professional Baseball Club, LLC (“the Ducks”) alleging that they were sitting in their seats, “watching and enjoying” a baseball game at the Ducks’ Stadium then known as Citibank Ballpark on July 25, 2009, when a batted ball from a player on the field struck plaintiffs in their respective faces, causing severe and permanent personal injuries. The plaintiffs alleged that the Ducks were negligent in failing to maintain the premises in a reasonably safe condition; in violating all applicable provisions of the Building Code of the State of New York and County of Suffolk and in failing to erect safety netting to protect the plaintiffs from batted balls from the field.
In response to the plaintiffs’ Verified Complaint, the Ducks moved to dismiss. The Ducks argued that it did not owe a duty of care to the plaintiffs and discharged its duty of care by providing the required protective netting behind home plate where the chance of injury was greatest and further the plaintiffs assumed the risk of injury. In support of its motion, the Ducks submitted an Affidavit from its General Manager, Michael Pfaff, who averred that the netting behind home plate extended from dugout to dugout, that the netting was inspected on a daily basis and was free from any defects and that although there was seating available behind home plate on the July 25, 2009, there were no records of any patrons requesting to have their seats moved to the protected area. Further, Mr. Pfaff averred that warnings were provided over the public address system before the games warning patrons about the obvious dangers of objects entering the stands and that the back of the baseball tickets stated:
WAIVER OF LIABILITY; LICENSE: The holder of this ticket voluntarily assumes all risks and danger incidental to any game or exhibition for which this ticket is issued, whether occurring prior to, during or subsequent to the actual playing of the exhibition or game. Risk of injury exists at all times and may result from objects thrown or propelling from the field of play. The Long Island Ducks and the Atlantic League, and their subsequent officials, employees, players and representatives are not liable for injuries, expenses, claims or liabilities resulting from or related to events at Citibank Park. This ticket is a revocable license subject to termination with denial of admission at management’s discretion, without compensation, should the holder act in a disorderly manner or violate management’s rules and regulations.
RAIN POLICY: If less than 4 ½ innings (5 if home team trails) of this game are played, return this ticket at the Citibank Park Ticket Office and exchange for a ticket of equal or lesser value for any other regular season game in the 2009 season, based on availability.
NO CASH REFUND: Citibank Park rules prohibit any weapons, food, cans, bottles, coolers, or chairs to be brought into the ballpark.
In opposition to the motion to dismiss, the plaintiffs simply argued that the motion was premature as discovery had not been completed and depositions had not yet been held.
Justice Roy S. Mahon converted the Ducks’ motion to a summary judgment motion and then granted the Ducks summary judgment. In his decision, Judge Mahon quoted and relied heavily upon the Court of Appeals decision in Davidoff v. Metropolitan Baseball Club, Inc., 61 N.Y.s2d 996, 475 N.Y.S.2d 375 (1984) with regard to the standard of care owed to spectators at a baseball game.
In Davidoff, a negligence action brought by fourteen-year-old spectator who was injured by a sharply hit foul ball while she occupied a box seat located behind first base at Shea Stadium, the plaintiff’s action was dismissed because the defendants satisfied their limited duty of care. Screening in terms of protecting the area behind home plate properly is put in issue.
Furthermore, in Davidoff, the Court of Appeals held:
The rule suggested by plaintiff would require a baseball field proprietor to operate as an insurer of spectators unless there was a protective screen shielding every seat. We held in Akins that a proprietor should be allowed to satisfy the desires of the many spectators who prefer to view the game from a seat unobstructed by fences or protective screening. No sound reason has been shown why the rule of policy set forth in Akins should be changed.
Davidoff, 475 N.Y.S.2d at 368.
Other recent similar efforts by plaintiffs on foul ball and errant bat cases have also failed:
In Elie v. City of New York, 24 Misc. 3d 1243A, 901 N.Y.S.2d 899 (Supreme Court, Kings Cty. 2009), the trial court granted summary judgment to the teams and the owner of Keyspan Park and noted that “the duty to protect baseball spectators is ‘fulfilled by the providing of sufficient screening behind home plate, where the danger of being struck by a ball or bat is the greatest (citations omitted).” 3d 1243A at *8;
In Falzon v. Major League Baseball Enterprises, Inc., (Supreme Court, New York County; Index No.: 110508/10, 2011), the Court granted the defendants’ motion to dismiss based upon the limited duty rule and held that the plaintiffs assumed the risk of injury as they elected to sit in an area outside the protected area behind home plate, specifically a field box near the third base line and close to the playing surface, rather than in the area behind home plate and covered by the protective screening. The Court held that the defendants discharged their limited duty of care by providing protective netting behind home plate and that the plaintiffs voluntarily assumed the risk of injury by choosing to sit in an area that was exposed to the potential dangers of the game, including broken bats and/or balls, as they were provided with the ticket language that expressly warned as such; and
In Tarantino v. Queens Ballpark Company, L.L.C. (Supreme Court, Queens County; Index No.8674/12), the plaintiff alleged that while he was seated at a table inside a luxury suite watching a basketball game on television, he was suddenly struck by a foul ball. The foul ball was purportedly able to enter the suite because a waitress employed by the concessionaire left a window open. The luxury suite was located on a level at the Stadium above the requisite protective netting that was provided behind home plate. Based upon the doctrine of the assumption of an open and obvious condition, the Court determined that the allegations in the complaint were not sufficient to allege that any of the defendants breached any duty of care owed to the plaintiff. Rather, the defendants’ duty was to make the conditions as safe as they appeared to be.
Carla Varriale, Jarett L. Warner and Lindsay Kaplow represented the defendant in William May and Jodi May v. Long Island Ducks Professional Baseball Club, LLC (Supreme Court, Nassau County: Index No. 601385/12).
