Spectator at Baseball Game Strikes Out Based on Assumption of Risk

Mar 24, 2006

A personal injury action brought by a spectator at a New York Mets baseball game was dismissed by a New York court based on the plaintiff’s assumption of risk and lack of actual or constructive notice of any dangerous condition.
The plaintiff Bernardo Diaz commenced a personal injury action in the Supreme Court of the State of New York, Queens County against the City of New York, the City of New York Department of Parks and Recreation and Sterling Mets, L.P. The plaintiff alleged that while attending the Mets game at Shea Stadium (“the Stadium”) on March 31, 2003, he tripped and/or slipped and fell due to a wet, watery and/or oily substance on a walkway within the Stadium, sustaining personal injuries. At his deposition, the plaintiff testified that he was injured when he jumped for a t-shirt that was shot into the stands during a promotional event at the Stadium and slipped on “something” wet.
The defendants moved for summary judgment arguing that the plaintiff assumed a known or obvious risk which negated any duty of care. The Court agreed with the defendants that the plaintiff had, in fact, assumed the risk. The Court held that a voluntary participant in a sport or recreational activity consents to all risks which are inherent in and arise out of the nature of the sport and that “[t]he recreational activities encompassed by the doctrine of assumption of the risk include games as well as frolic.” The Court held that the plaintiff Bernardo Diaz voluntarily sat in an unprotected area, engaged in the promotional event and therefore assumed the risk of being injured while attempting to catch the t-shirt projected into the stands. The Court also agreed with the defendants’ arguments that they demonstrated that they did not create or cause the alleged dangerous condition and did not have any actual or constructive notice of it.
The Court was unpersuaded by the plaintiff’s assertion that there was a triable issue of fact with regard to whether the defendants were on notice of the wet condition on which the plaintiff slipped after he jumped. The Court stated that a general awareness of spilled drinks in the Stadium was insufficient to establish constructive notice.
Bernardo Diaz v. The City of New York, The City of New York Department of Parks and Recreation and Sterling Mets, L.P.
Attorneys of Record: (for plaintiff) Samuel Racer, Esq., New York, New York; (for defendants); Jarett L. Warner, Esq. and Carla Varriale, Esq., Havkins Rosenfeld Ritzert & Varriale, New York, New York.
Jarett L. Warner, Esq. and Carla Varriale, Esq. are litigators who specialize in the defense of owners and operators of sporting and recreational facilities, including major and minor league baseball teams. They may be reached at: jarett.warner@hrrvlaw.com and carla.varriale@hrrvlaw.com.


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