By: Carla Varriale, Esq. and Jarett L. Warner, Esq.
Sterling Mets, L.P. (Sterling) obtained summary judgment in a unique negligence action involving a vendor at Shea Stadium (the Stadium) who was injured during the t-shirt launch.
In Norman Cohen v. Sterling Mets, L.P., the plaintiff alleged that during the course of his employment as a concession vendor at the Stadium, he sustained various personal injuries when he was struck by a spectator who sought a t-shirt that had been “launched” into the stands in between innings. There was no dispute that the t-shirt launch was a promotional activity that occurred between innings and that it is a common feature at many sporting events. Prior to the t-shirt launch, Sterling provided announcements that the t-shirt launch was about to begin and security personnel were present during the event.
In dismissing the plaintiff’s negligence action against Sterling, the Supreme Court, Queens County held that Sterling established that it was entitled to summary judgment because it did not breach a duty of care to the plaintiff based upon the doctrine of assumption of the risk (which has extensive application in cases involving spectators and participants) of an open, obvious condition. As a seasoned vendor who had worked at the Stadium and other venues for years, the plaintiff unquestionably appreciated the risks that were associated with working in unprotected parts of the Stadium. The Court also noted that spectators’ alleged frenzied and dangerous reaction to the t-shirt souvenirs was no different that their effort to obtain a souvenir baseball.
The Court further held that a spectator at a sporting event* is deemed to have consented to those risks commonly appreciated which are inherent in and arise out of the event—those risks include the risk of injury presented because bats, balls or t-shirts may enter the stands. The Court held that the plaintiff’s arguments that the t-shirt toss was conducted in between innings and is a promotional activity that is not a part of the game were “without merit.” The Court compared the t-shirt toss to the tossing of a baseball to fans, or other promotional activities in between innings. In other words, the Court held that it is a customary part of the experience of attending a sporting event such as a baseball game. The Court also rejected the plaintiff’s arguments that the assumption of the risk was not a defense because he failed to demonstrate that he was under an economic or other compulsion to work during the t-shirt launch, notwithstanding his concerns about the purported dangerous condition.
This case should provide useful precedent in other cases involving spectators and venue personnel who are injured during “promotional” activities such as the t-shirt or hot-dog toss and as a result of the activities of mascots during a sporting event.
Cohen v. Sterling Mets LP, 3971 2005; 7/24/07
*The Court did not expressly limit its holdings to the sport of baseball.
Carla Varriale is a partner at the law firm of Havkins, Rosenfield, Ritzert & Varriale and can be contacted by email at Carla.Varriale@hrrvlaw.com. Warner is an associate and can be contacted by email at Jarett.Warner@hrrvlaw.com. Warner and Varriale 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.
