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Elie v. City of New York
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N.Y.Sup. 2009.
Slip Copy2009 WL 2767116, 2009 N.Y. Slip Op.
51862(U)
This opinion is uncorrected and will not be published
in the printed Official Reports.
Gerard Elie, Plaintiff,
v.
The City of New York, The City of New York Department of Parks and Recreation, Keyspan Park,
Brooklyn Cyclones, Brooklyn Baseball Co., LLC,
New Jersey Cardinals, Minor League Heroes, LP,
“John Doe” being the fictitious name of a player for
the New Jersey Cardinals and St. Louis Cardinals,
L.P., Defendants.
20244/03
Supreme Court, Kings County
Decided on August 19, 2009
Digest-Index Classification:Negligence--Assumption
of Risk--Spectator Injured by Baseball Bat During
Pregame Warmup
APPEARANCES OF COUNSEL
The plaintiff was represented by:
Bourhazos & Matarangas
111 Broadway, Suite 1801
NY NY 10006
212-967-3322
The defendant was represented by:
Fabiani, Cohen & Hall LLP
570 Lexington Ave 4th floor
NY NY 10022
212-644-4420
OPINION OF THE COURT
Mark I. Partnow, J.
Defendant St. Louis Cardinals, LLC (sued herein as
St. Louis Cardinals, L.P.) moves for an order, pursuant to CPLR 3212, granting it summary judgment
dismissing the complaint.
Plaintiff commenced the instant action by filing a
summons and complaint on June 3, 2003. An amended summons and verified complaint was served and
filed on or about July 21, 2003. The amended verified
complaint alleges that on July 22, 2002, plaintiff was
injured while in the spectator area of Keyspan Park in
Brooklyn, the home baseball stadium of defendant *2
Brooklyn Cyclones. The complaint asserts that an
unnamed player of the New Jersey Cardinals (the
visiting team, and a subsidiary of movant), while
either warming up or “horsing around” before the
scheduled baseball game, propelled a baseball bat
into the seats. The subject bat struck and injured
plaintiff.
Plaintiff claims argues that this was an act tantamount to negligence or recklessness that proximately
caused the injury. As relevant to the instant motion,
plaintiff asserts that the player was employed by movant, and as such, movant is liable for the negligence
FN1
of its employee.
The examination before trial of plaintiff occurred on
May 20, 2005; movant now seeks summary judgment. In support of the instant motion, movant asserts
that it is entitled to summary judgment because plaintiff, a spectator of a baseball game occupying an unshielded area of Keyspan Park, assumed the risk of
being struck by a loose baseball bat. Movant notes
plaintiff's examination before trial testimony, which
indicates that plaintiff was sitting approximately ten
feet from the subject player,FN2 observing the player
and other members of the New Jersey Cardinals
warming up. Plaintiff also testified that the warmup
activities included players swinging bats and hitting
baseballs to other players. Movant claims that a spectator, who observes close players swinging baseball
bats in an unshielded area of a baseball stadium yet
remains nearby, assumes the risk of being struck by a
loose bat. Movant concludes that since plaintiff as-
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sumed the risk of his injury, it therefore did not
breach a duty of care to plaintiff, and the complaint
should thus be dismissed as against movant.
In opposition, plaintiff claims that the subject player
was horsing around when he propelled the bat into
the spectator area. Plaintiff also claims that when he
was struck by the bat, there was no indication (in
contrast to batting practice or during the actual game)
that loose bats would likely land in the spectator area.
Instead, states plaintiff, other players were stretching
while the subject player horsed around with the subject bat.
Plaintiff asserts that the authority cited by movant
supports the mere proposition that a spectator assumes only commonplace risks--such as, the risk of a
loose bat or ball reaching the stands during the game
or batting practice--associated with attending a baseball game. Plaintiff argues that, here, in contrast, it
was not commonplace for the subject player to horse
around with the subject bat during no organized batting activity, either during the game or practice beforehand. Therefore, concludes plaintiff, movant has
failed to demonstrate prima facie entitlement to
judgment as a matter of law with respect to assumption of risk.
Plaintiff advances additional arguments in opposition. First, plaintiff asserts that the question of how
the subject bat was propelled into the spectator area
(e.g. before the bat became loose, was the subject
player using the bat to stretch, hit baseballs, etc.) is a
question of fact, requiring this court to deny the instant motion. Plaintiff also asserts that the examination before trial of the subject player is outstanding,
and summary judgment should be denied on this additional ground. Lastly, plaintiff states that the instant
motion should be denied on the ground *3 that it is
supported only by an attorney affirmation and not an
affidavit of a person with knowledge of the relevant
facts.
This court heard oral argument of the instant motion
on May 26, 2009. After oral argument, the court requested supplemental replies from plaintiff and movant. Plaintiff's supplemental reply includes the affidavit of Barry Braune, a friend of plaintiff who was
sitting next to him at the time of the accident. The
affidavit states that the subject player “intentionally
and recklessly” threw the subject bat into the stands.
The affidavit further states that the subject player
then admitted to Braune that he intentionally threw
the bat into the stands. Plaintiff concludes that he did
not assume the risk of an intentional act, and therefore, the instant motion should be denied.
The supplemental response of movant states that the
subject player, subsequently identified as Joey
Vandever, has not been in movant's employ since
April 7, 2003--almost two months before plaintiff
commenced the instant action. Movant further states
that it has provided plaintiff with the last known address of Joey Vandever and cannot produce him for
examination before trial as he is not in movant's control. Moreover, movant asserts that the instant motion
is properly supported by the examination before trial
testimony of plaintiff, and as such, no additional affidavit is required.
Movant also objects to the Barry Braune affidavit.
Movant states that this court requested supplemental
replies on the limited issue of whether a spectator
assumes the risk of being struck with loose baseball
equipment during warmups, and was not an invitation
for an affidavit of an eyewitness. In any event, argues
movant, the affidavit is suspect and a contrived attempt to create an issue of fact.FN3Lastly, movant
claims that its cited authority does in fact demonstrate that a baseball spectator assumes the risk of
certain intentional activities.
The court grants the motion and dismisses the complaint as against movant. Summary judgment is a
drastic remedy that deprives a litigant of his or her
day in court, and it should only be employed when
there is no doubt as to the absence of triable issues
(Kolivas v Kirchoff, 14 AD3d 493 [2005];see alsoAndre v Pomeroy, 35 NY2d 361, 364 [1974]).
However, a motion for summary judgment will be
granted if, upon all the papers and proof submitted,
the cause of action or defense is established sufficiently to warrant directing judgment in favor of any
party as a matter of law (CPLR 3212 [b]; Gilbert
Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967
[1988];Zuckerman v City of New York, 49 NY2d 557,
562 [1980]), and the party opposing the motion for
summary judgment fails to produce evidentiary proof
in admissible form sufficient to establish the exist-
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ence of material issues of fact (Alvarez v Prospect
Hosp., 68 NY2d 320, 324 [1986], citing Zuckerman,
49 NY2d at 562;see alsoWinegrad v New York Univ.
Med. Ctr., 64 NY2d 851 [1985]).
Under the doctrine of primary assumption of risk, as
applied to spectators attending sporting events (see
e.g.Murphy v Steeplechase Amusement Co., 250 NY
479 [1929];Akins v Glens Falls City School Dist., 53
NY2d 325 [1981];Newcomb v Guptill Holding Corp.,
31 AD3d 875 [2006];Procopio v Town of Saugerties,
20 AD3d 860 [2005];LaRocca v Pleasant Val. Little
League, 15 AD3d 628 [2005];Koenig v Town of Huntington, 10 AD3d 632 [2004]),*4 “[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 nature of the event” (Cohen v
Sterling Mets, L.P., 17 Misc 3d 218, 219
[2007],affd58 AD3d 791 [2009], citing Morgan v
State of New York, 90 NY2d 471 [1997];Cannavale v
City of New York, 257 AD2d 462 [1999]; see alsoKoenig v Town of Huntington, 10 AD3d 632
[2004] [bystander assumed risks entailed by voluntary proximity to baseball game]). Movant is not an
“insurer[] of the safety of spectators who occupy unprotected areas of the stadium” (Pira v Sterling Equities, Inc., 16 AD3d 396 [2005];see alsoAkins, 53
NY2d at 329). 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” (Cohen, 17 Misc 3d at
219, citing Akins, 53 NY2d at 331;Sparks v Sterling
Doubleday Enters., 300 AD2d 467 [2002]). Among
the dangers to which a baseball spectator has consented to is the danger that a loose baseball bat will
strike a spectator and cause injury (see e.g.Marlowe v
Rush-Henrietta Cent. School Dist., 167 AD2d 820
[1990],affd78 NY2d 1096 [1991]). Here, plaintiff, a
seasoned spectator of baseball, assumed the risk of
many dangers, including the danger of being struck
by a loose bat. Movant has thus established entitlement to judgment as a matter of law based upon the
doctrine of primary assumption of risk (Pira, 16
AD3d at 397, citing Morgan v State of New York, 90
NY2d 471 [1997]).
Plaintiff's arguments in opposition lack merit. The
contention that summary judgment should be denied
because the subject player was “horsing around” and
not engaged in batting practice when the subject bat
became loose implies that primary assumption of risk
applies only during certain distinct times while attending a baseball game. This implication is false. In
Pira v Sterling Equities, Inc. (16 AD3d 396
[2005],supra), the Appellate Division held that the
injured plaintiff consented to being struck by a baseball, intentionally thrown to the fans in the stands of
Shea Stadium, during “pre-game warmup” (Id. at
396). In his brief, plaintiff-appellant Giacinto V. Pira,
in an attempt to distinguish his case from Honohan v
Turrone (297 AD2d 705 [2002] [dismissing action of
sports spectator injured during warmup activities]),
asserted that the intentional act of New York Mets
pitcher Dennis Cook-- throwing the subject ball to
fans, who did not catch it, allowing it to strike the
plaintiff--did not constitute a warmup. The Appellate
Division expressly disagreed (Pira, 16 AD3d at 396).
Thus, there is no merit to plaintiff's implication that
he did not assume the risk of being struck by a loose
bat while neither the game nor batting practice proceeded (see alsoCohen, 17 Misc 3d 218 [plaintiff
assumed risk of being struck by fan who dove for
shirt launched into the stands between innings];
cf.Demelio v Playmakers, Inc., 63 AD3d 777 [2009]
[risk of ricocheting baseballs presented by an unpadded metal pole in enclosed batting cage was not prima facie inherent risk of sport]).FN4
Moreover, and contrary to plaintiff's argument, movant properly supported the instant motion for summary judgment with the transcript of the examination
before trial of plaintiff (Olan v Farrell Lines, 64
NY2d 1092 [1985];see alsoOdi v Lifetouch, Inc., 35
AD3d 420 [2006]). Also, because movant has asserted that the subject player has not been in its employ
since the instant action was commenced, movant is
not obliged to produce the subject player for *5 an
examination before trial (see e.g.Prappas v Papadatos, 38 AD3d 871, [2007]). Lastly, the affidavit of
Barry Braune, and the argument that the subject player intentionally threw the bat into the stands, may not
be considered since it was first raised in plaintiff's
supplemental reply papers (see e.g.Sanz v Discount
Auto, 10 AD3d 395 [2004]).FN5 For these reasons, the
motion is granted.
In sum, the instant motion of defendant St. Louis
Cardinals, LLC (sued herein as St. Louis Cardinals,
L.P.) for summary judgment dismissing the complaint as against it is granted. The action is severed
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against the remaining defendants and shall continue.
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The foregoing constitutes the decision, order and
judgment of this court.
END OF DOCUMENT
E N T E R,
J. S . C.
FOOTNOTES
FN1. As discussed infra, plaintiff also implies that movant would be liable for the
reckless or intentional activities of the subject player.
FN2. Plaintiff also testified that he owned
season tickets, and his seat was approximately fifteen feet from the third-base line.
FN3. The court notes that plaintiff's opposition asserts that the subject player negligently lost control of the subject bat, but the
supplemental reply asserts that the action
was intentional and reckless.
FN4. The decision and order in Pira also
seems to undercut plaintiff's argument,
raised in the supplemental reply, that he has
a viable claim because the subject player intentionally tossed the subject bat toward a
second player.
FN5. In any event, movant would not be liable to plaintiff for the intentional act of the
subject player. Assuming that propelling a
baseball bat into or near spectator stands
does not further movant's business of operating a baseball team (cf.N.X. v Cabrini Med.
Ctr., 97 NY2d 247, 251 [2002]), “vicarious
liability does not arise from acts that are
committed for the employee's personal motives” (Holmes v Gary Goldberg & Co.,
Inc., 40 AD3d 1033 [2007]).
Copr. (c) 2009, Secretary of State, State of New York
N.Y.Sup. 2009.
Elie v City of New York
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.