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Andrew B. Kaufman

Andrew Kaufman Obtains Dismissal On Behalf Of The New York Yankees And Major League Baseball In Case Featured In The New York Times

Plaintiff, the General Counsel and Executive Vice President of a developer of Manhattan real estate, brought suit for serious personal injuries he sustained to his face after he was struck by a foul ball at a game between the New York Yankees and the Oakland Athletics in 2011. Plaintiff contended that defendants were negligent because they did not ban the umbrellas that were obstructing his view or cancel or postpone the game due to intermittent and sometimes heavy rainfall.

G&S moved to dismiss and for summary judgment on the grounds plaintiff assumed the risk of his injury. The evidence revealed that plaintiff attended the game with his 12-year old son and two other boys. They sat in field level seats that had been gifted to them. The seats came with access to the Champions Suite for free food and drinks. The game was delayed for 90 minutes due to intermittent rain. During this time plaintiff and his group had lunch and waited in the Suite. The group brought ponchos and umbrellas. They sat 3-4 rows from the field, closer to the right field pole than the dugout. Significantly, the plaintiff remained in his seat and did not move down to the un-occupied seats in the first row where the boys sat, notwithstanding that his view was obstructed by umbrellas opened and closed by spectators in front of him. He remained in his seat during the third inning his claim that umbrellas obstructed his view when he was struck by the foul ball. Prior to being struck, he had not utilized the phrase “down in front” or otherwise asked anyone to close or lower their umbrella.

G&S, which regularly defends the New York Yankees, further developed the assumption of the risk defense by establishing that plaintiff was a life-long Yankees fan who attended 1-2 games a year and who was aware that the 2011 team had many left-handed batters because of the stadium’s short right field fence, including Hideki Matsui, a visiting player, who hit the foul ball that struck him. He admitted to knowing of the prevalence of foul balls in the area along right field where they were sitting. He had in fact, cautioned the boys to be careful of foul balls from the left handed hitters. He admitted to knowing that fans could be, and historically, had been struck by foul balls and that fans could be injured as a result.

Initially, the court upheld the well-settled Court of Appeals’ precedent that the operator of a baseball stadium only has a duty to provide screening in the area of the field behind home plate where the danger of being struck by a ball is the greatest.

The court then highlighted the warning on the back of the ticket stub which expressly describes the dangers from foul balls and emphasizes the need to stay alert, offers to change the seat location of any guest concerned with their safety due to seat location, and restates the common law that the guest assumes all risk and danger incidental to the sport of baseball. This warning was also given on the public address system and was posted on the back of the seats. Plaintiff admitted that he heard the warning, but never requested a different seat from the usher who was stationed 6-12’ from him, nor did he complain about the umbrellas in front of him.

On these facts the court found that the defendants fully satisfied their duty of care. It rejected the plaintiff’s assertion a duty of care existed that required the defendants to institute an across the board ban on umbrellas given the absence of any case law, statute or regulation.

G&S defeated the plaintiff’s claim the game should have been stopped or cancelled due to inclement weather by submitting the affidavit of Senior VP of Scheduling and Club Relations for MLB who stated that she was unaware of any severe or extreme weather that should have caused MLB or its umpires to delay, suspend, postpone or cancel the game. In response, plaintiff failed to offer any weather data or expert opinion to refute this affidavit.