Crespin v. Albuquerque Baseball Club, LLC

Citation2009 NMCA 105,216 P.3d 827
Decision Date31 July 2009
Docket NumberNo. 27,864.,27,864.
PartiesEdward CRESPIN and Janis Crespin, Individually and as parents of Emilio Crespin, Rachel Crespin, and Cassandra Garcia, all minors, Plaintiffs-Appellants, v. ALBUQUERQUE BASEBALL CLUB, LLC, d/b/a Albuquerque Isotopes, City of Albuquerque, Houston McLane Company d/b/a Houston Astros, and Dave Matranga, Defendants-Appellees.
CourtCourt of Appeals of New Mexico

Vigil Law Firm, P.A., Jacob G. Vigil, L. Helen Bennett, Albuquerque, NM, for Appellants.

Butt Thornton & Baehr, PC, Sean E. Garrett, S. Carolyn Ramos, Emily A. Franke, Albuquerque, NM, for Appellee Albuquerque Baseball Club, LLC d/b/a Albuquerque Isotopes.

Robert M. White, City Attorney, Michael I. Garcia, Assistant City Attorney, Albuquerque, NM for Appellee City of Albuquerque.

Modrall, Sperling, Roehl, Harris & Sisk, P.A., Max J. Madrid, Emil J. Kiehne, Albuquerque, NM, Gardere Wynne Sewell, LLP, Jeffrey S. Davis, Houston, TX, for Appellees Houston McLane Co. d/b/a Houston Astros and Dave Matranga.

OPINION

FRY, Chief Judge.

{1} Plaintiffs sued Defendants Albuquerque Baseball Club, LLC, d/b/a Albuquerque Isotopes (Isotopes), the City of Albuquerque (the City), Houston McLane Co. d/b/a Houston Astros (Astros), and Dave Matranga for injuries sustained by their son when Plaintiffs were attending a pre-game picnic at the Isotopes baseball team's stadium in Albuquerque, New Mexico. Matranga, a player for the visiting Astros team, was engaged in pre-game batting practice when he batted a ball that struck Plaintiffs' four-year-old son, Emilio. The district court granted all Defendants summary judgment, and Plaintiffs appeal. Although we acknowledge that there are certain risks to spectators inherent in the game of baseball, we reverse summary judgment in favor of the Isotopes and the City on the ground that, under the particular circumstances alleged, there are issues of material fact precluding summary judgment. We affirm summary judgment in favor of the Astros and Matranga, and we affirm the district court's order denying Plaintiffs' motion to amend their complaint.

BACKGROUND

{2} Plaintiffs' complaint against Defendants alleged that on July 21, 2003, Emilio and his parents and sisters were seated at picnic tables located in the left outfield stands at the stadium owned by the City and operated by the Isotopes. Without warning or notice, "[p]re-game began," and Matranga hit a ball "directly into the left field picnic tables." The ball struck Emilio in the head and fractured his skull. Plaintiffs alleged that the City and the Isotopes owed Plaintiffs "the duty to use ordinary care to keep the premises safe for use by visitors" and breached that duty and that Matranga, an employee of the Astros, "ignored his duty to exercise ordinary care as he directed the ball into the occupied picnic area." Plaintiffs further alleged that Matranga's conduct "was wanton and showed an utter indifference to or conscious disregard for the safety of" Plaintiffs and other visitors at the stadium. Plaintiffs' theories of negligence against the City and the Isotopes included failure to adequately protect spectators from fly balls, failure to warn, and failure to keep the premises safe for visitors. Against the Astros, Plaintiffs alleged negligent training and supervision of Matranga and vicarious liability for Matranga's conduct.

{3} All Defendants filed motions for summary judgment. The City and the Isotopes, relying on cases in other jurisdictions, argued that an owner/occupier of a baseball stadium has only a limited duty to screen spectators with protective netting in the most dangerous part of the stadium, which is behind home plate, and to provide enough seating in the screened area to accommodate reasonable demand. Because the City and the Isotopes provided such netting, they maintained that as a matter of law they had satisfied any duty owed to Plaintiffs. The Astros and Matranga, also relying on out-of-state case law, argued that a baseball player owes no duty to a spectator but that even if such a duty is owed, the Astros and Matranga did not breach the duty as a matter of law.

{4} The Isotopes and the City submitted affidavits in support of their motions. In one affidavit, Sandy Eeds attested that he had been involved in the design of the stadium in question and that the design and construction included a protective netting behind home plate that was consistent with netting provided at other, similar ballparks. The netting "accommodate[s] the reasonable needs of Isotopes Park and the offered seating is consistent with such seating offered at other ballparks with a similar size and seating capacity." Eeds further attested that the picnic area in which Plaintiffs were seated is "behind the left field wall [and] is designed as an area where fans can watch the game while sitting at a picnic style table."

{5} The Astros and Matranga submitted some of the official rules of baseball in support of their motion, including the rule stating that a batter becomes a runner when, among other scenarios, "[a] fair ball passes over a fence or into the stands at a distance from home base of 250 feet or more[,] ... [which] entitles the batter to a home run." This is apparently what happened when Matranga hit the ball into the picnic area; in other words, Matranga hit a home run during pre-game batting practice, and the ball struck Emilio.

{6} In response to Defendants' motions, Plaintiffs filed responses and submitted their own evidence. Plaintiffs tendered their answers to interrogatories, in which they attested that the family members had just sat down with their food in the stadium's picnic area for a pre-game little league party and had begun to eat when, without warning, a baseball struck Emilio in the head. Plaintiffs also submitted the affidavit of Chad Kuhn, who played five seasons of professional baseball and who claimed to be "familiar with and [to] have personal and professional knowledge of standard stadium safety practices." Kuhn opined that the picnic area at Isotopes stadium "failed to utilize proper safety standards" by arranging the picnic tables so that the patrons were not facing the field, by failing to screen the area with protective netting, and by failing to warn patrons that balls might enter the area.

{7} Following a hearing, the district court granted Defendants' motions for summary judgment. Plaintiffs appeal.

DISCUSSION

{8} We review summary judgment de novo. "A party is entitled to summary judgment if the party can demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Martin v. Franklin Capital Corp., 2008-NMCA-152, ¶ 6, 145 N.M. 179, 195 P.3d 24 (internal quotation marks and citation omitted). "An issue of fact is material if the existence (or non-existence) of the fact is of consequence under the substantive rules of law governing the parties' dispute." Id. (internal quotation marks omitted).

{9} This case presents the first opportunity for a New Mexico appellate court to consider whether to carve out an exception to the usual tort doctrines for the sport of baseball. As Defendants aptly observe, the game of baseball subjects spectators to the inherent risk of being struck by a ball, but many spectators welcome the risk in order to experience the game more intimately or perhaps to catch a foul ball or a home run ball. See Benejam v. Detroit Tigers, Inc., 246 Mich. App. 645, 635 N.W.2d 219, 222 (2001) (noting that "baseball patrons generally want to be involved with the game in an intimate way and are even hoping that they will come in contact with some projectile from the field (in the form of a souvenir baseball)"). In addressing the issue before us, we first review established New Mexico tort law and then consider case law from other jurisdictions.

New Mexico Tort Law

{10} Our Supreme Court considered the risks inherent in a spectator sport in McFatridge v. Harlem Globe Trotters, 69 N.M. 271, 365 P.2d 918 (1961), in which the plaintiff had been hit by a basketball thrown by a member of the Harlem Globe Trotters at a game. Id. at 272-73, 365 P.2d at 919. On appeal from a judgment in favor of the plaintiff, the defendant argued that the district court should have instructed the jury on assumption of the risk and relied on an ALR annotation regarding that doctrine in the context of baseball. Id. at 274, 365 P.2d at 920. The Court observed in dictum: "That there is danger from being injured by being struck by balls hit foul or otherwise striking spectators in certain locations at baseball games which would be known to fans of the game is clear and from this fact arises the custom to protect the areas of greatest danger." Id. at 277, 365 P.2d at 922. Because there was no similar degree of danger in basketball, the Court concluded that there was no need to instruct specifically on the doctrine of assumption of the risk because the jury had been instructed on contributory negligence. Id.

{11} The dictum in McFatridge suggests that the law should somehow acknowledge the risks inherent in baseball. This suggestion was diluted to some extent twenty years later when our Supreme Court adopted comparative negligence in Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), superseded by statute as stated in Reichert v. Atler, 117 N.M. 628, 875 P.2d 384 (1992). In Rizzo, the Court stated that "[a]ssumption of risk as a form of negligence and other liability concepts based on or related to negligence of either plaintiff, defendant, or both, are subject to the comparative negligence rule." Id. at 687, 634 P.2d at 1239 (internal citation omitted). From this statement we can conclude that a spectator's knowledge of baseball's inherent risks should not automatically preclude the spectator from recovering if he or she...

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