Classen v. Izquierdo

• Citation: 137 Misc.2d 489,520 N.Y.S.2d 999
• Parties: Marilyn CLASSEN, Individually and as Administratrix of the Estate of Guillermo Classen a/k/a William Classen, Deceased, Plaintiff, v. Richard IZQUIERDO, Roger Warner, Milton Tarlau, Edwin A. Campbell, Lewis Eskin, Madison Square Garden, Inc., and Madison Square Garden Boxing, Inc., Defendants.
• Decision Date: 27 October 1987
• Court: United States State Supreme Court (New York)

Page 999

520 N.Y.S.2d 999

137 Misc.2d 489

Marilyn CLASSEN, Individually and as Administratrix of the Estate of Guillermo Classen a/k/a William Classen Deceased, Plaintiff, v. Richard IZQUIERDO, Roger Warner, Milton Tarlau, Edwin A Campbell, Lewis Eskin, Madison Square Garden Inc., and Madison Square Garden Boxing Inc., Defendants.

Supreme Court, New York County,

Individual Assignment Part 30.

Oct. 27, 1987.

Murray J. Eisen, New York City, for plaintiff Marilyn Classen.

Gordon & Silber, New York City, for defendant Doctor Izquierdo.

Martin, Clearwater & Bell, New York City, for defendant Doctor Warner.

Sidley & Austin, New York City, for defendants Madison Square Garden Center, Inc. and Madison Square Garden, Inc.

Lewis Eskin, pro se.

HELEN E. FREEDMAN, Judge:

This is an action brought by Marilyn Classen, widow of professional middleweight boxer Willie Classen for the latter's death following a boxing match at the Felt Forum on November 23, 1979. Defendants Madison Square Garden Center, Inc., Madison Square Garden Boxing, Inc. (Madison Square Garden), Izquierdo and Warner (both ringside physicians) seek summary judgment dismissing all claims and cross claims against them on the ground that a professional athlete assumes the risk of all foreseeable injuries resulting from the athletic activity.

Previously, the plaintiff brought an action for the same relief against the New York State Athletic Commission (Commission); its employee, Dr. Campbell, the physician who examined decedent prior to the fight; Eskin, the referee; and the ringside physicians, Izquierdo and Warner, in the New York State Court of Claims. That Court (Blinder, J.) dismissed plaintiff's action against the Commission on the ground that neither defendant Campbell nor the Commission were negligent. Classen v. State, 131 Misc.2d 346, 500 N.Y.S.2d 460 (Ct.Cl.1985). The Court of Claims denied that it had jurisdiction over defendants Izquierdo, Warner and Eskin finding that they were independent contractors, and not employees of the Commission. This Court dismissed the claim against defendant Campbell in this action finding that the Court of Claims decision was res judicata as to him.

During the course of the bout, decedent received a number of blows to the head. Following the ninth round, defendant Izquierdo examined Classen and determined that he was able to continue the fight and Eskin then permitted the tenth round to begin. Seconds later, Classen was struck by his opponent and lost consciousness. Although defendants Izquierdo and Warner rendered emergency medical care to the decedent, he died five days later as a result of a subdural hematoma.

Madison Square Garden Boxing, Inc. arranged the match by preparing the contract for the fight and obtaining approval from the Commission. Madison Square Garden Center, Inc. prepared the Felt Forum for the November 23, 1979 boxing program by placing oxygen tanks and a stretcher in the area of the ring, pursuant to Commission regulations.

Plaintiff claims that her husband's death was caused by the negligence of the remaining individual defendants in allowing the match to proceed into the tenth round, and by the negligence of Madison Square Garden in providing faulty emergency equipment. The latter claim is based on plaintiff's pretrial testimony that she overheard one of the ringside physicians state that the oxygen tank was not working and the fact that there was no on-site ambulance present at the bout. However, there was no Commission Regulation in 1979 requiring an on-site ambulance and plaintiff's hearsay testimony is directly contradicted by Dr. Izquierdo's testimony that the oxygen tank was in good working order prior to the fight.

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All three moving defendants contend that they are entitled to summary judgment because Classen willingly participated in the event and in so doing, assumed all risks inherent in the sport including negligence on the part of the defendants. Referee Eskin is not represented by counsel at this time and therefore has not joined in the motion. The movants rely heavily on the case of Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964 (1986) which articulated this doctrine in relation to an athletic field and a co-participant.

In Turcotte v. Fell, supra, the Court of Appeals granted summary judgment to a racetrack proprietor and co-participant on the ground that a professional athlete who elects to engage in a sport assumes all risks which are inherent in that sport and thus any injuries that are reasonably foreseeable as a consequence of participation. The exception to this rule includes those injuries caused by intentional or reckless acts. Whether a risk is inherent in a particular sport depends on various factors including the nature of the sport and the foreseeability of the danger based on the athlete's prior experience.

Plaintiff claims that Madison Square Garden cannot be absolved from its own negligence in providing faulty emergency equipment and that it is, in any case, vicariously liable for the negligence of the ringside physicians and the referee. As to the ringside physicians, plaintiff asserts that the doctrine in Turcotte, supra was not meant to apply to physicians who have independently contracted to render medical services to sports participants.

The plaintiff in Turcotte, supra, was a professional jockey who sued another jockey and the New York State Racing Association (NYRA), race track owner, for injuries sustained during a horse race. He claimed that his injuries were caused by a foul committed by another jockey in violation of NYRA regulations and by the faulty condition of NYRA's track. Plaintiff charged that NYRA was negligent in failing to water...