Baker v. Topping

• Citation: 222 N.Y.S.2d 658,15 A.D.2d 193,11 N.Y.2d 644
• Parties: Basil BAKER, Appellant, v. Daniel Reed TOPPING and Del E. Webb, Individually and as Copartners d/b/a New York Yankees, Respondents. Basil BAKER, Appellant, v. ALLIED MAINTENANCE CORPORATION, Respondent.
• Decision Date: 20 December 1961
• Court: New York Supreme Court Appellate Division

Page 658

222 N.Y.S.2d 658

15 A.D.2d 193

Basil BAKER, Appellant, v. Daniel Reed TOPPING and Del E. Webb, Individually and as

Copartners d/b/a New York Yankees, Respondents.

Basil BAKER, Appellant, v. ALLIED MAINTENANCE CORPORATION, Respondent.

Supreme Court, Appellate Division, Third Department.

Dec. 20, 1961.

William W. Bullis, Lake George (William L. Ford, Walter A. Fullerton and Richard F. Mullaney, Saratoga Springs, of counsel), for appellant.

Miller & Ringwood, Glens Falls (Charles S. Ringwood and John C. Mannix, Glens Falls, of counsel), for respondents.

Before BERGAN, P. J., and COON, GIBSON, HERLIHY and REYNOLDS, JJ.

GIBSON, Justice.

Plaintiff was injured when struck by a ball hit by one of the players in a baseball game between the New York Yankees and the Baltimore Orioles at Yankee Stadium in the city of New York. His actions are in negligence, one against the owners and operators of the Yankees' baseball club and of Yankee Stadium and the other against the corporation supplying ushers to the stadium. The complaints in both actions have been dismissed on defendants' motion for summary judgment and plaintiff appeals. We find that Special Term's order was properly grounded upon the doctrine of assumption of risk and must be affirmed.

From the complaints and from plaintiff's deposition upon pretrial examination it appeared that plaintiff, an adult who had been at Yankee Stadium 'approximately' six times before, was struck as he was being conducted by an usher through an aisle leading to his reserved seat in an unscreened section on the first base line. When purchasing his ticket, he had asked merely for a good seat, not specifying or requesting one behind the screen.

The spectator at a game, no less than the participant, 'accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball. * * * The timorous may stay at home.' (Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482-483, 166 N.E. 173, 174, per Cardozo, Ch. J.) This court, in affirming the dismissal of the complaint at the close of plaintiff's case, in an action to recover for personal injuries sustained by a spectator at a hockey game, held that plaintiff assumed the risk, 'incidental to the entertainment', of being hit by a puck and also observed, 'The rule is equally well settled that a spectator at a baseball game assumes the risk of being struck by a foul or wildthrown ball when sitting elsewhere than behind the screen back of home plate.' (Ingersoll v. Onondaga Hockey Club, 245 App.Div. 137, 139, 138, 281 N.Y.S. 505, 508, 507.) The rule was applied in a well-considered opinion in the County Court of Albany County in a case very similar to this, in which a spectator was struck by a batted baseball, during the pregame batting practice, as he was walking in the aisle and approaching his seat in the unscreened section of the stands. (Blackhall v. Albany Baseball & Amusement Co., 157 Misc. 801, 285 N.Y.S. 695, affg. Blackhall v. Capitol Dist. Baseball Ass'n, 154 Misc. 640, 278 N.Y.S. 649). The same principle barred recovery in an action tried in Supreme Court in Westchester County in which the plaintiff was struck by a wild pitched ball while in the very act of moving from her seat in the open stand to a place of greater safety. (Zeitz v. Cooperstown Baseball Centennial, 31 Misc.2d 142, 29 N.Y.S.2d 56.) The principle is recognized and enforced in other jurisdictions. (See, e. g., Quinn v. Recreation Park Ass'n, 3 Cal.2d 725, 46 P.2d 144; Shaw v. Boston Amer. League Baseball Co., 325 Mass. 419, 90 N.E.2d 840; Brisson v. Minneapolis Baseball & Athletic Ass'n, 185 Minn. 507, 240 N.W. 903; crane v. Kansas City Baseball Co., 168 Mo.App. 301; Hunt v. Portland Baseball Club, 207 Or. 337, 296 P.2d 495; and see 2 Harper & James, Law of Torts, § 21.2, pp. 1169, 1170[n. 12], § 21.5, pp. 1183-1184; Prosser on Torts [2d ed.], § 55, pp. 303-304, 307-308; Comment, 'The Promoters' Liability for Sports Spectator Injuries', 46 Cornell L.Q. 140; Comment, 'The Liability of the Proprietor of a Baseball Park for Injuries to Spectators Struck by Batted or Thrown Balls', [1951] Wash.U.L.Q. 434.) By the great weight of authority, the rule is not to be relaxed, absent any extraordinary circumstance, if the injury occur while the patron is in the aisle and moving to or from his seat (Zeitz v. Cooperstown Baseball Centennial, 29 N.Y.S.2d 56, supra; Blackhall v. Albany Baseball & Amusement Co., 157 Misc. 801, 285 N.Y.S. 695, supra; Hunt v. Portland Baseball Club, 207 Or. 337, 296 P.2d 495, supra); or when the passageway or the seating space itself is crowded (Shaw v. Boston Amer. League Baseball Co., 325 Mass. 419, 90 N.E.2d 840, supra; Hunt, supra); or while pregame practice is in progress (Zeitz, supra; Blackhall, supra; Brummerhoff v. St. Louis Nat. Baseball Club, 149 S.W.2d 382 [Mo.App. 1941]).

Whether or not the basis predicative of an assumption of risk, in a factual situation such as that before us, can more accurately be said to establish the absence of any duty on the part of the defendant which might give rise to negligence--so that the term 'assumption of risk' may have become 'simply a left-handed way of describing a lack of duty' (2 Harper & James, op. cit., pp. 1162, 1190-1192; Wash.U.L.Q. [1951], op. cit. pp. 459-460)--seems not greatly material, as respects this case at least. The lack of duty concept would, however, render unnecessary the pleading of assumption of risk as an affirmative defense, assuming such plea otherwise necessary (cf. Prosser, op. cit., p. 303, and, semble contra, 2 Harper & James, op. cit., p. 1190); but defendants' failure so to plead is not before us in any event, since no question with regard to it was raised in the court below or, in fact, upon this appeal. (Verduce v. Board of Higher Education in City of New York, 9 A.D.2d 214, 216, 192 N.Y.S.2d 913, 915 [footnote], reversed on...