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

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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A devastating traumatic eye injury resulted in a $1,000,000 settlement in the midst of testimony in a lawsuit brought by a 42 year old man in Florida who was hitting golf balls at a driving range when his ball struck a granite marker used to separate each golfer and then ricocheted right into his eye socket. 

The plaintiff suffered the following injuries:

• a severely ruptured globe of his eye,
• an inferior orbital blowout fracture with nerve and muscle entrapment and
• retinal damage.
• After several surgeries, the eye could not be saved and the plaintiff was fitted for a prosthetic eye.

The case, Jones v. Westchase Golf and Country Club, available here thanks to Walter Olson at Overlawyered, is controversial because in athletic injury cases, and especially in golf course injury cases, the doctrine of assumption of the risk usually carries the day for the defense resulting in no recovery at all for the injured plaintiff.

Under the doctrine of assumption of the risk, a plaintiff may be barred from recovering for injuries when it can be shown that he voluntarily engaged in dangerous activity and that he knew or should have known of the risk of harm.

So, the typical errant or hooked shot that strikes another golfer on the course will likely go nowhere for the injured person. These cases are usually dismissed before trial. And they should be.

The Jones case, though, involves facts that are both more damaging to the plaintiff's case and more damaging to the defendant's case. I mean, it was his own golf ball! He couldn't even hit it out of the area of his stall. True, but the plaintiff brought in an expert in golf course design who said ropes should have been used instead of granite dividers.The case settled after that testimony.

The case has generated some snickering among lawyers on Twitter (h/t  Nicole Black at Sui Generis). But let's face it: there are lots of lousy golfers at driving ranges hitting balls in every direction. The range owner surely has some safety obligations towards its patrons. It appears that the defense thought the jury would agree with the plaintiff's expert and find that ropes should have been used and would have been safe.

So would this be safe? What about the golfers next to one another? Might not they be hit?

The case was probably defensible and may well have resulted in no recovery at all by the plaintiff but the driving range had only a $1,000,000 liability insurance policy and the plaintiff was very sympathetic in that not only had he undergone extremely painful surgeries and then lost his eye but also he was diagnosed with esophageal cancer that his attorney was prepared to try to connect medically to the original accident due to stress and the need to spend large amounts of time on his stomach.

Had the jury agreed with the plaintiff, the damages could well have been much more than $1,000,000 so it appeared that the defendant convinced its insurance company to pay the policy limit and thus protect the driving range company from having to pay from its own funds any verdict in excess of the $1,000,000 of coverage.

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The New York City Law Department has released statistics regarding negligence lawsuits against it in 2008 and the top recovery was for an eye injury to a school guidance counselor in the case of Villaseca v. City of New York.

The New York Post reports it this way:

"$8.5 million to a guidance counselor Rodrigo Villaseca, who lost vision in this right eye after an emotionally disturbed kindergartner slammed a broken door in his face at PS 306 in The Bronx."

The door was broken for over a year after the city school knew that the door's hydraulic controller was not operational. This was a $55 part that was specifically installed so that the door could not be slammed shut - a particularly useful device given that this was the only door into a room where the most uncooperative and unruly kids were placed until they calmed down.

Here's the piece of equipment that would have saved the city $8,500,000 for a mere $55 cost:

  Source: DrillSpot, Inc.

In reporting on the $403 million total of negligence awards against the city for last year, the paper mentions several other large suits as well and notes that the total is a 6%  spike over the year before. I don't know whether the reporter was insinuating that the Villaseca case (and the others) are so-called runaway or excessive verdicts or whether she is suggesting, as others such as The Pacific Research Institute and NYTortReformNow.org do, that New York has an unfair and unreasonable litigation environment for defendants in negligence cases due in part to there being no limit (or "cap") on pain and suffering damage awards. I do know that issues such as whether there are too many or too few negligence lawsuits, whether plaintiffs are awarded too much or too little for their pain and suffering and whether damage caps would be fair or even accomplish what its advocates seek are all hotly disputed. For the plaintiffs' side of these issues see: New York State Trial Lawyers Association and TortDeform.com

In the Villaseca case, I can say with confidence that, as usual, a short media account cannot and will not explain even one-half of what happened and why such a multi-million dollar pain and suffering recovery makes sense.

Here are the injuries Mr. Villaseca suffered:

• detached retina of the right eye
• lost all vision in right eye after 9 surgeries
• constant pain
• need for surgical implantation of false eye

Source: VitreoRetinal Surgery, P.A.

Enough? No, there's more:

• the teacher had a pre-existing macular hole condition in his other eye that left him with only peripheral vision in that other eye and the result was extremely limited vision of any kind at all
• inability to work
• need to have his wife help him move about

The Bronx County jury was apparently so impressed with and upset by these injuries that it awarded Mr. Villaseca $8,000,000 for his pain and suffering damages alone. An appeals court found that $5,000,000 was the proper pain and suffering amount (and with an additional $3,500,000 mainly for lost earnings and medical expenses the total was therefore $8,500,000).

Other recent cases involving significant pain and suffering damage awards for eye and vision injuries include:

• Wilson v. Galicia Contracting & Restoration Corp. (2008) - $700,000 pain and suffering award for a 16 year old boy who was struck in his left eye by a falling metal object. After surgery to remove the object, he was left with permanent retina damage.
• Fresco v. 157 E. 72nd St. Condominium (2003) - $2,000,000 pain and suffering verdict for a 35 year old laborer with complete blindness in one eye from a carpentry accident in which a nail flew into his eye. He had a pre-existing condition in his other eye with the result that he's now left nearly totally blind.
• Torricelli v. Pisacano (2004) - $500,000 pain and suffering medical malpractice award after cataract surgery failed requiring two more surgeries and significant overall vision deterioration.

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