By Carla Varriale and Jarett Warner
Spectators at sporting events generally assume the obvious, inherent risks arising out of the activity. However, in a recent spectator injury case, New York’s Supreme Court, Queens County dismissed an action against the venue, the team, the architect and the concessionaire and others based on an improbable set of circumstances. In Tarantino v. Queens Ballpark, L.L.C. et al (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 is located on the Empire Level of the Stadium, above the requisite protective netting that was provided behind home plate. Although the plaintiff reasoned that the suite was located behind home plate, the Court noted that it was a tier above the field. In other words, there was no duty to provide protective netting in the upper tier.
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. The Court further noted that risks of the activity which are fully comprehended or perfectly obvious are deemed to be consented to by the plaintiff and, hence, the defendant has performed its duty with respect to those risks. In Tarantino, the duty was fulfilled by providing sufficient screening behind home plate, where the danger of being struck by a ball or a bat is the greatest. Because the plaintiff was not seated in a protected area, there was no duty to insure his safety in this unprotected area of the Stadium.
The fact that plaintiff was seated in a luxury suite (as opposed to a different part of the stands) did not impact the Court’s application of the assumption of the risk doctrine. The risk of injury by an errant baseball was commonly appreciated—he was in attendance at the basketball game, the fact that the plaintiff may have been distracted by the basketball game on television did not obviate the assumption of the risk doctrine. Accordingly, the Court dismissed each of the plaintiff’s claims.
Varriale and Warner are attorneys at Havkins Rosenfeld, Ritzert & Varriale, which represented the Queens Ballpark, L.L.C, Sterling Mets, the City of New York and the NYCIDA
