Davidoff by Davidoff v. Metropolitan Baseball Club, Inc.

• Decision Date: 27 March 1984
• Citation: 61 N.Y.2d 996,463 N.E.2d 1219,475 N.Y.S.2d 367
• Parties: , 463 N.E.2d 1219 Jennifer A. DAVIDOFF, an Infant, by Her Father and Natural Guardian, Richard S. DAVIDOFF, et al., Appellants, v. METROPOLITAN BASEBALL CLUB, INC., et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 367

475 N.Y.S.2d 367

61 N.Y.2d 996, 463 N.E.2d 1219

Jennifer A. DAVIDOFF, an Infant, by Her Father and Natural Guardian, Richard S. DAVIDOFF, et al., Appellants, v. METROPOLITAN BASEBALL CLUB, INC., et al., Respondents.

Court of Appeals of New York.

March 27, 1984.

Emilio Nunez, Harry H. Lipsig, Pamela Anagnos Liapakis and Howard Goldstein, New York City, for appellants.

Jeffrey Silberfeld, Garden City, for Metropolitan Baseball Club, Inc., respondent.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Pamela Seider Dolgow and Ronald E. Sternberg, New York City, of counsel), for City of New York, respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 92 A.D.2d 461, 459 N.Y.S.2d 2, should be affirmed, with costs.

Plaintiff, a 14-year-old girl, was watching a professional baseball game at Shea Stadium from a box seat behind first base, separated from the playing field only by a three-foot fence. At a moment when her attention was diverted from the game, she was struck by a sharply hit foul ball and sustained serious injuries including the loss of vision in one eye. Plaintiff brought this negligence action against the City of New York (owner of Shea Stadium) and the Metropolitan Baseball Club, Inc. (its lessee). The Appellate Division, in reversing Special Term, granted defendants' motions for summary judgment and dismissed the complaint. We now affirm.

Claims involving injuries sustained by spectators from misdirected baseballs were traditionally decided--and dismissed--on the ground of assumption of risk. However, with the enactment of CPLR 1411 in 1975, the absolute defense was no longer applicable and it became necessary to define the duty of care owed by a proprietor of a baseball field to its spectators. This we did, not even three years ago, in Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 331, 441 N.Y.S.2d 644, 424 N.E.2d 531: "[W]here a proprietor of a ball park furnishes screening for the area of the field behind home plate where the danger of being struck by a ball is greatest and that screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game, the proprietor fulfills the duty of care imposed by law and, therefore, cannot be liable in negligence." Here, there has been no showing by plaintiff that (1) defendants failed to erect a screen behind home plate providing adequate protection in that area, and (2) there are not sufficient seats behind the screen to accommodate as many spectators as reasonably may be expected to desire such seating. No evidence that the screen was inadequate was presented, and it is undisputed that there were unoccupied seats behind the screen at Shea on the day plaintiff was injured.

Plaintiff nonetheless argues that Akins should not bar her cause of action because she was given an assigned seat in an unscreened area in which there had been prior spectator injuries, and that a jury question is presented "where the inadequacy of the screening at the point of injury is put in issue." This is a mischaracterization of Akins, where we held only that a jury question may be presented "where the adequacy of the screening in terms of protecting the area behind home plate properly is put in issue." (Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 331, 441 N.Y.S.2d 644, 424 N.E.2d 531, supra.) The rule suggested by plaintiff would require a baseball field proprietor to operate as an insurer of spectators unless there was a protective screen shielding every seat. We held in Akins that a proprietor should be allowed to satisfy the desires of the many spectators who prefer to view the game from a seat unobstructed by fences or protective screening. No sound reason has been shown why the rule of policy set forth in Akins should be changed.

COOKE, Chief Judge (dissenting).

When this court, in Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644, 424 N.E.2d 531, established a per se rule governing the duty of care owned by a baseball field proprietor, the dissent found the creation of such rules to be without foundation in the jurisprudence of landowner liability followed by this court since Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 was decided and since a system of comparative negligence (see CPLR 1411) was enacted by the Legislature (see Akins v. Glens Falls City School Dist., supra, 53 N.Y.2d at pp. 333-337, 441 N.Y.S.2d 644, 424 N.E.2d 531 [Cooke, Ch. J., dissenting] ). In this appeal, even the per se rule is applied without consideration of its underlying rationale. Therefore, I respectfully dissent.

In Akins, the court considered whether the owner of a lot used as a baseball field by a high school team breached any duty owed a spectator who, standing in foul territory along the third-base line, was struck by a line-drive foul ball. Reasoning that "an owner of a baseball field is not an insurer of the safety of its spectators" (at p. 329, 441 N.Y.S.2d 644, 424 N.E.2d 531), and that "many spectators prefer to sit where their view of the game is unobstructed by fences...