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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On a beautiful spring day, 16 year old Chelise Navarro had just finished her turn at bat during high school softball practice at a New York City high school. She handed her bat to the next player who took a full practice swing and .... You know what happened next. Bam. Smash. Crush. Bones broken. Chelise took a full, powerful bat swing right into her face and sustained a crushing fracture of of the bone under her left eyelid, displacement and bowing of the zygomatic arch (which forms the prominence of the cheek) and a fracture of her maxillary sinus.

Let's take a look at some of these facial bones:

In Navarro v. City of New York (Supreme Court, Bronx County; Index # 25776/04; 11/25/08), Chelise claimed that the New York City Department of Education was liable for her pain and suffering injuries because her gym instructor didn't properly supervise the other students. And she won her case when the Bronx County jury (said by a  character in the movie "Bonfire of the Vanities" to be the best juries for plaintiffs because they believe in the redistribution of wealth) awarded her $2,750,000 for her pain and suffering ($750,000 past, $2,000,000 future).

A post-trial motion is pending as we write and no matter what the judge decides, in my experience I can tell you that there will be an appeal of this case. Defense counsel is adamant that there was no liability on the city's part - that fault should rest only on the student who whacked Chelsie in the head.  I think the city is right and will succeed on its appeal to have this case thrown out. Even if liability is upheld, though, the appeals court will very likely find that the pain and suffering damages awarded were excessive and that they should be reduced substantially.

A review of all of the reported and many unreported cases that dealt with jury awards for facial injury pain and suffering indicates that the sustainable range for most of the significant facial injury cases is $200,000 to $500,000.

Of course there will be an isolated case here and there with much higher or lower recoveries that are sustainable but they are the exception, not the rule. For example, there's the case of Storms v. Vargas in which an appeals court upheld a $4,000,000 Kings County pain and suffering verdict for a 31 year old police officer. But that case was atypical in that the plaintiff there was in a high speed emergency vehicle accident when his face was thrust into a metal and glass speedometer and  his eye, face, nose and forehead were all crushed and had to be surgically rebuilt. By the time of trial, he had already undergone 26 surgeries, wold likely need 16 more. He was, as the court declared, "a patient for life." Clearly, that case is extraordinary.

Here's what happens when bones in the face are so broken that surgery with metal insertions (i.e., open reduction internal fixation) is needed:

And here are some of the more typical and recurring facial injury cases which, as you will see, end up with sustainable verdicts in the $200,000 to $500,000 range:

• Resnick v. Linkow - $400,000 ($150,000 past, $250,000 future) pain and suffering award for a 41 year old patient in a dental malpractice case in which plaintiff claimed a nerve was penetrated during dental implant surgery leaving him with permanent facial numbness, a drooling sensation and facial itchiness. The New York County jury had returned a verdict of $2,000,000 but the trial judge reduced it to $1,000,000 and then the appeals court even further.
• Angerome v. City of New York - $500,000($200,000 past, $300,000 future) pain and suffering award for a 15 year old passenger in a high speed car accident who sustained a traumatic injury to her jawbone, a left angle fracture and a right para-symphsis fracture. Her jawbones had to be wired shut for eight weeks, she had a second surgery to tighten the arch bars in her jaw and she was left with a permanent clicking and muscle spasms around her jaw. The Queens County jury had awarded her $2,250,000 for her pain and suffering  but the appeals court substantially reduced that figure finding that the jury's award deviated materially from what would be reasonable compensation.
• Mancusi v. Miller Bewing Co. - $500,000 ($200,000 past, $300,000 future) pain and suffering New York County jury verdict affirmed for a taxi cab passenger whose face was thrown against the Plexiglas partition separating the front and rear seats. She had lacerations to her face and inside her mouth, parasthesias affecting her chin and lip, trauma to seven teeth and internal derangement of her temporomandibular joint ("TMJ"). After extensive dental surgery, Ms. Mancusi was left with a permanent limited ability to open her mouth and the appeals court found that the $500,000 verdict was reasonable.
• Cicalese v. Carter - $105,000 ($35,000 past, $75,000 future) pain and suffering award for a woman in a dental malpractice case who claimed that her dentist caused her TMJ when he placed a bridge into her mouth too forcefully. The Suffolk County jury had awarded $200,000 for Ms. Cicalese's pain and suffering but the appeals court reduced that sum apparently affected by the fact, not reported in the decision but found by me after searching through court records on file, that the plaintiff had been involved in a huge car crash three years before she sought the bridge treatment and that in the car accident she had huge facial injuries including a fractured cheekbone that required surgery. On top of that, there was evidence that three years before the alleged malpractice the plaintiff had complained of TMJ-like symptoms and was advised to see a TMJ specialist but that she failed to do so. I'd say this plaintiff was lucky to walk away from her dental malpractice case with any verdict at all.

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