New York Injury Cases Blog : New York Personal Injury Lawyer & Attorney : John Hochfelder Law Firm : Traumatic Injury, Wrongful Death

I know I was a bit steamed last week when I took sides against a plaintiff and her lawyers for suing seven different parties after she was hit by a foul ball at a Hudson Valley Renegades minor league baseball game while seated in a left field picnic area in the stadium. Here, I suggested that Judith Rosenfeld's lawsuit should never have been brought - she shouldn't have been allowed in the batters box.

While I sympathize with the serious eye injury sustained by Ms. Rosenfeld, her lawsuit had no basis being brought in view of prior court rulings, some from the highest court in New York (the Court of Appeals) and one against the same defendants on very similar facts.

Like it or not, the law in New York is clear: a baseball game spectator who chooses to sit in an area of the stadium that's not protected with a net or fence (when the area behind home plate is) will have no viable lawsuit when struck and injured by a foul ball. And those were the facts in Rosenfeld v. Hudson Valley Stadium Corp.

On that basis, the trial judge threw out her lawsuit, then the appeals court upheld the dismissal. That surely should have been the end of this saga. It wasn't.

This week, Rosenfeld's lawyers filed a motion for reargument or leave to appeal to the Court of Appeals. No new argument is set forth. As with her other attempts, Rosenfeld will strike out again.

This time, though, she should be sanctioned by the court and forced to pay the legal fees incurred by the defendants. Rarely used, such a remedy for frivolous litigation is specifically provided for under Section 130-1.1 of the Rules and Regulations of the Judiciary Law of New York. And recently, an appellate court  invoked this rule to order a plaintiff and its attorney to pay the legal fees of their opponent in a case in which they were held to have pursued a frivolous appeal (Yenom Corp. v. 155 Wooster Street, Inc.).

This is not about punishing a losing plaintiff; rather, it's about fairness to all concerned. Justice for everybody. Suing seven parties to begin with (the engineers and architects who designed the stadium were even included) was bad enough but forcing all those parties through appeal after appeal, incurring many thousands of dollars in legal fees and related costs is unfair. They have repeatedly asserted that there was no basis for the suit in view of the substantial precedent. And they have been right time and again. So what about fairness to them? The defendants should be made whole insofar as their legal fees are concerned. That's justice. That's fair.

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It's got to stop at some point. Some "fans" are trying to ruin our national pastime - the game of baseball. Spectator lawsuits have  been going on for quite some time, as we discussed just last week, here. Now, there's a brand new case and I'll tell you all about it.

Look, I'm a trial lawyer and the only cases I handle are those in which someone caused serious traumatic injuries. And in this new case, Judith Rosenfeld suffered an orbital fracture requiring surgery and some permanent vision loss when she was hit by a foul ball while a spectator at a baseball game. I can get a jury to award hundreds of thousands of dollars (if not more) for pain and suffering for those types of injuries. There's a catch, though. Someone other than my client has to be at fault! That's why I'd have declined Rosenfeld's case had she come to me for representation. There was no one at fault.

Here's what happened. Ms. Rosenfeld went to Dutchess County Stadium in Wappingers Falls, New York on August 5, 2006 to watch the home team Hudson Valley Renegades (Major League Baseball's minor league affiliate of the Tampa Bay Rays) take on the Vermont Lake Monsters. The Renegades won, 3-2.

It's a beautiful ballpark and here's its exterior on opening day this year:

Plaintiff was struck by a foul ball while seated in a picnic area in the Rookies Retreat section:

As you can see, Rosenfeld's seat was in the area furthest away from home plate down the left field line. It must have been quite a hard hit ball to cause a facial fracture.

The real story here began a year later in 2007 when Rosenfeld lawyered up and sued. Her case was tossed out on July 15, 2008 when a judge dismissed all of her claims without a trial. The judge stated that there was sufficient protective netting behind home plate which extended up the foul lines to the dugouts and also there were public announcements made advising fans that they could be reseated behind the nets if they wished. Rosenfeld did not wish.

After the dismissal, Rosenfeld appealed and this week in Rosenfeld v. Hudson Valley Stadium Corp. the appeals court agreed that the case had no merit and was properly dismissed (lower court's decision here). The four judge panel stated that the proprietor of a ball park need only provide reasonable screening for the area of the field behind home plate and, therefore, fans injured by foul balls in other areas do not have viable claims.

Many lawsuits have been asserted over the years for foul ball injuries and the issues were long ago resolved by the highest court in New York - the Court of Appeals  - when it ruled in Atkins v. Glens Falls City School District (1981) that a lawsuit for a spectator's foul ball injuries will not stand when there's a reasonable backstop or netting behind home plate and the fan is injured elsewhere in the park.

In 1984, the Court of Appeals reiterated the rule in Davidoff v. Metropolitan Baseball Club, Inc. and stated that it applied to the dismissal of a lawsuit by a 14 year old girl who lost vision in an eye when hit by a foul ball while seated in a box seat near first base behind a three foot fence.

In yet another case, a season ticket holder, Pianka Ray, M.D., was struck by a foul ball while in his box seat near first base beyond the home plate nets. His case, like all the others before him, was dismissed by the trial judge. He appealed, though, claiming that his case was different from all of the others in that he was distracted by the ball club's team mascot. Here's the kicker: this was a case involving the very same stadium as in the Rosenfeld case. Dismissal of Dr. Ray's case was affirmed in 2003 in Ray v. Hudson Valley Stadium Corp. with the appeals judges stating plainly that the provision of home plate area netting fulfills a ballpark's obligations and a fan injured in seats beyond the netting assumes the risk of an injury and has no viable lawsuit.

In light of the Atkins, Davidoff and Ray cases, how is it that Judith Rosenfeld could sue for her injuries? Simple. One can always sue - start a lawsuit - and there are few if any real penalties for bringing on a frivolous lawsuit.

Rosenfeld's suit was - as it should have been - thrown out, but what of all the costs, time and aggravation suffered by the defendants? There were seven different parties sued, including the stadium owner, the team, the engineers and architects who designed the stadium and even the local chamber of commerce. Each had to hire lawyers and investigators and devote substantial unprofitable time to defending the case. Some of those lawyers are very experienced, successful and probably charged pretty hefty fees. Who reimburses the defendants after they win? No one.

This is the kind of case that will cry out for a loser pays rule to be enacted and one of these days, if cases like this and Nutley v. SkyDive the Ranch (the notorious skydiver's broken fingers case discussed here ) continue to be brought and dismissed, then we may well see legislative action. Many have been discussing for it for years, for example, Walter Olson at Overlawyered.

I hope I have not given the impression that I don't sympathize with Ms. Rosenfeld. I do - insofar as she was injured, I have a great deal of sympathy for her; however, when Roseneld (and her lawyers) claimed that seven different parties were at fault and sued each of them, she was wrong. And that's a fact. Actually, that's the law too.

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New York courts have long held that people taking part in a sport or recreational activity are deemed to consent to those commonly appreciated risks or injuries that are inherent in and arise out of the nature of the sport generally. In other words, most sports injury cases will be dismissed because of the doctrine known as assumption of risk.

Previously, here, we discussed the difficulty of winning sports injury lawsuits in New York brought by schoolboys in a wrestling match and a floor hockey game as well as a spectator at a soccer game. Now, we look at lawsuits by players and fans injured during baseball games and practices. These plaintiffs fare just as poorly as those in other sports.

The most recent decision in a baseball case dealt with the claim by a spectator at a professional game at Keyspan Park, the minor league field of the New York Mets. On July 22, 2005, Gerard Elie, a season ticket holder with seats 15 feet off the third base line, was watching the visiting New Jersey Cardinals warm up - they were swinging bats and hitting baseballs to other players. Somehow, one of the players' bats flew into the seats and struck Elie in the nose. He sued. He lost. In Elie v. City of New York, the judge granted the summary judgment motion by the defendants (the city as owner of the park, both ball clubs and the player himself). He stated that Mr. Elie was a seasoned spectator of baseball and that he assumed the risk of many dangers, including the danger of being struck by a loose bat. Case dismissed.

By the way, if you wonder why at major league ballparks the coaches and ball boys often hand a used played ball to fans clamoring for them instead of tossing the ball, it's because of people like Giacinto Pira, a 35 year old fan in the third row at a New York Mets game back in 1999. He wasn't paying attention when a Mets pitcher tossed a ball to some fans, one of whom tipped the ball causing it to hit Pira in the nose. The ballplayer apologized and gave Pira an autographed ball. Pira then sued the Mets! And after having his case dismissed by the trial judge on assumption of risk grounds, Pira took it a step further and appealed. He lost again, in Pira v. Sterling Equities, Inc., d/b/a The New York Metropolitans, and now you know why at most stadiums the fans have balls handed to them - so the teams don't have lawsuits thrown at them.

This lucky fan got a souvenir, wasn't hurt and didn't sue anyone:

In another recent case, a New York appeals court upheld the trial judge's dismissal of a case brought by a 15 year old boy for injuries he sustained during a Little League practice. Thomas Goodwin placed himself between two ongoing games of catch when he was struck on the forehead by a ball thrown by one of his teammates. In Godwin v. Russi, the court noted that Thomas, an experienced baseball player, a member of his high school team, arrived late to practice and walked, without putting his glove on, into the area other players were already warming up and tossing the ball around.

In a case that aroused a great deal of interest this summer, a Staten Island boy's mother sued on his behalf for knee injuries the boy sustained sliding into second base during a Little League game. The case, Gonzalez v. New Springsville Little League (Supreme Court, Richmond County; Index # 101879/07), was settled for $125,000 and has generated a great deal of notoriety for example from Rick Reilly of ESPN The Magazine, Walter Olson at Overlawyered and Justin Rebello at Lawyers USA. It appears that then 12 year old Martin Gonzalez's suit was based on negligent coaching (i.e., allegations that Martin hadn't been taught the proper sliding mechanics) and improper equipment (i.e., allegations that the base itself was stationery and not detachable or moveable).

The injuries in the Gonzalez case - torn ligament and meniscus requiring two surgeries - are serious enough to warrant a settlement or verdict in the low to mid six figure range; however, it's the liability concept that has aroused so many and angered some. Only Eric Turkewitz at New York Personal Injury Law Blog appears sympathetic, suggesting that there may have been a valid failure to use break-away bases claim that led the league to settle.

We will continue to follow assumption of risk cases in general and sports injury cases in particular. Some of the types of cases that are being or will be litigated include those brought by professional athletes for dangerous playing field conditions, amateur baseball players claiming metal bats are inherently dangerous and kids injured at public batting cages. And, no doubt, we will revisit the Little League case settlement and the issues underlying it.

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In several unusual sports related cases around the country recently, injured plaintiffs have failed to win any damages. If we count "slam dancing" as a sport then the score is no wins, two losses and two ties (to be broken by trials down the road).

Loss #1: In Fry v. Jolly Roger Rides, Inc. a Maryland jury returned a verdict for the defense finding that an amusement park was not negligent when an errant basketball struck a woman in the head. Chrisitne Fry had been walking at an amusement park pier when a basketball used in a long range basketball shot game deflected off the game's apparatus and struck her. She claimed that a year and a half later she underwent neck surgery because the force of the ball aggravated a pre-existing cervical spine injury.

The defendant had sought a dismissal before trial claiming that there was no way it could foresee such an accident. The motion was denied. No matter. The jury heard testimony that there had been no one injured from the game in five years and that the incident was so unexpected the defendant should not be liable for having failed to foresee it. And so the jury dismissed the case.

• As our friends at Torts Prof Blog suggested, Ms. Fry's husband probably helped the defense with his testimony that he thought the odds of this accident were "one in a million."

Loss #2: In Schoneboom v. B.B. King Blues Club, a New York judge dismissed without a trial the case of a Manhattan concert goer who sustained a torn anterior cruciate ligament in his knee requiring surgery.

David Schoneboom admitted that he knew there was wild, violent "slam dancing" (also known as moshing) all around the heavy metal band concert.

He still went right up to the front near the stage, next to some of the wildest activity. Low and behold, he got bumped by an unknown person and then he sued the club. The judge found that he had assumed the risk of such an occurrence and injury because he knew that the aggressive moshing was taking place and still deliberately placed himself in proximity to it.

Tie #1: In Sweeney v. Bettendorf, an eight year old girl in the stands at a professional minor league baseball game in Iowa was injured when a player lost control of his bat which traveled 120 feet and struck her in the head.

Tara Sweeney was on a field trip organized by her city parks department. Her injury case against the city was initially tossed out by the trial judge but an appeals court has now ruled (5-2) that the case may proceed to trial because the city had a duty to protect the child's safety at the ballpark and that a jury could find that parks employees put her in an unreasonably hazardous location to watch the game.

• Lamenting this type of all too frequent lawsuit, Walter Olson at Overlawyered declares: "This time in Iowa."
• And writing for the Des Moines Register, Jared Strong quotes a dissenting judge: "There is no joy on this day around Iowa's ballparks."
• My prediction: defense verdict at trial.

Tie #2: In Allred v. Capital Area Soccer League, Inc., the North Carolina Court of Appels overturned a lower court's pre-trial dismissal of an injury case brought against a soccer league by a spectator at a game who was struck in the head by a soccer ball before the game even started. Teresa Alford had been in the stands behind one of the goals while the teams were warming up and many balls were being shot by the players towards the goal.

One shot sailed over the goal and hit Teresa casuing severe head injuries.

In discussing the assumption of the risk doctrine, the court noted that the case is at an early stage and the defense has not shown that Ms. Allred's knowledge of soccer was such that she should have known of the inherent risks of being hit by an errant ball. So the judges ruled that this case may proceed. For now.

• My prediction: defense verdict at trial.

These assumption of the risk cases will continue to be brought and they will always be controversial.

There appear to be three schools of thought on these cases:

1. Many who would like to see all of the plaintiffs in cases like the ones discussed here completely barred from the courthouse or, if allowed to trial and they lose, forced to pay the winner's legal fees.
2. Others would would like to see a remedy for every person injured, no matter the fault, no matter the social and economic consequences.
3. Judges who will continue to play a large part in the outcome of each individual case as well as on the impact their rulings have on society at large.

And we will continue to report on these cases and engage in discussions about them.

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