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The Rogak Report: 21 Nov 2007 (Part II) ** Recreational Risks - Baseball **

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  • Lawrence Rogak
    BALL PARK OWNER NOT LIABLE FOR INJURY TO FANS CHASING BALLS HIT OUTSIDE THE PARK Haymon v. Pettit 2007 NY Slip Op 09071 Decided on November 20, 2007 Court of
    Message 1 of 1 , Nov 21, 2007
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      Haymon v. Pettit
      2007 NY Slip Op 09071
      Decided on November 20, 2007
      Court of Appeals
      Jones, J.
      Edited by Lawrence N. Rogak

      In this appeal, the Court of Appeals was asked to decide whether a baseball park operator owes a duty to warn or protect non-patron spectators who are injured while chasing foul balls that are hit out of the stadium. "Under the circumstances presented," held the Court, "we conclude that no duty exists."

      Plaintiff's then 14-year-old son, Leonard, was injured when he was struck by an automobile driven by defendant, Donald Pettit.  Leonard chased a foul ball into traffic. He was wearing headphones while chasing the ball and failed to look both ways before crossing the street. Leonard apparently neither saw nor heard the oncoming vehicle. Pettit was operating his vehicle with a blood alcohol level of .11%. At the time, Leonard had congregated with friends outside of Falcon Park, a baseball stadium owned by the City of Auburn and operated by defendant Auburn Community Non-Profit Baseball Association, Inc.  Adjoining the stadium on the third base side is a two-way public street across from which is a parking lot owned by the City of Auburn and utilized by fans during games. At the time of the incident, the Ball Club offered free baseball tickets to non-patrons outside of the park who retrieved foul balls and returned them to the ticket window.  The record indicates that Leonard visited the stadium regularly to retrieve and collect foul balls hit out of the stadium.

      Leonard's mother commenced this negligence action against defendants Ball Club, Donald Pettit and the City of Auburn, among others. The Ball Club moved for summary judgment dismissing the complaint on the ground that it owed no duty to plaintiff's son. Supreme Court denied the motion, finding that the Ball Club owed a duty to its fans outside the stadium "to prevent them from chasing foul balls into the nearby street, a foreseeably dangerous condition it took part in creating." The Appellate Division reversed and dismissed the complaint as to the Ball Club.

      Plaintiff argued that the Ball Club's foul ball promotion gave rise to a duty to warn or protect its participants, and that a duty arose under these circumstances because the Ball Club provided an incentive to fans outside of the stadium to retrieve errant foul balls — namely, the prospect of free tickets. In short, plaintiff argued that the foreseeability of children chasing balls into the street, coupled with defendant's incentive for them to do so, required the Ball Club to provide some measure of protection or warning. "We disagree," wrote the Court.

      "An owner or occupier of land generally owes no duty to warn or protect others from a dangerous condition on adjacent property unless the owner created or contributed to such a condition.  The reason for such a rule is obvious — a person who lacks ownership or control of property cannot fairly be held accountable for injuries resulting from a hazard on neighboring property.  Thus, in fixing the duty point, our analysis is tempered by considerations such as the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation."

      "In Akins v Glens Falls City School Dist. (53 NY2d 325 [1981]) we limited the duty of a baseball field owner/operator to provide screening for errant baseballs around "the most dangerous section of the field — the area behind home plate — and the screening that is provided must be sufficient for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion.  Although in Akins the injury occurred inside the baseball park, it is instructive nonetheless. Akins is premised on the practical realities of the game — namely, that errant balls of any sort are an inherent part of the sport and that a baseball stadium owner/operator is not an insurer of the safety of its spectators and can only be held to exercise reasonable care under the circumstances. Even inside the park, screening of the area behind home plate offers the most protection spectators could reasonably expect. The nature of the game — and the spectator's involvement in it — is such that absolute protection around the entire stadium would be impractical. Any other formulation would defy a reasonable point at which duty can be fixed."

      "The same considerations govern this case. Here, plaintiff's theory rests upon defendant's 'foul ball return for tickets' promotion. Plaintiff insists that this incentive foreseeably exposed fans — mostly children — to the hazard of chasing foul balls into the street. This argument, however, is one of foreseeability presupposing that a duty exists. The dangers of crossing the street — and individuals electing to cross it in pursuit of foul balls — exist independent of the Ball Club's promotion. This, coupled with the fact that the Ball Club could control neither the public street nor third persons who use it, strongly militates against a finding of duty."

      "The Court is mindful that, in this case...  the Ball Club rewarded participants of its promotion with tickets. Important to our resolution, however, is that under the circumstances of this case...  there are inherent risks associated with crossing the street. Those risks are multiplied when doing so indiscriminately. Moreover, we do not view the Ball Club's promotion as contributing to a dangerous condition, for it only rewarded the retrieval of foul balls. We must assume that adults, and children of Leonard's age, will act prudently in doing so."

      "Even assuming that mere encouragement of retrieving foul balls suffices, under the circumstances, to create — or contribute to — a dangerous condition, a finding of duty would still be inappropriate. As in Akins, 'the practical realities'" of the game are not lost on the fact that players hit balls outside of the park. Foul balls can land on virtually any square foot of property surrounding a stadium, and imposition of a duty to warn or protect under such circumstances is neither fair nor practical. Injury may befall someone — as in this case — as a result of conduct of a third person on a public road, or a group of fans in a struggle for the ball. The possibilities for injury — and consequently, for liability — are limitless, and the expectation that the stadium control the conduct of third persons is unrealistic."

      "Under these circumstances, it is difficult to imagine what steps the stadium operator could have taken that would have sufficed to meet a duty. Thus, we are constrained from imposing a requirement that the stadium exercise control over non-patron, third persons outside its premises over whom it has no actual authority to do so."

      Larry Rogak

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