Maddox v. City of New York

• Decision Date: 01 April 1985
• Docket Number: No. 2,No. 1,1,2
• Parties: Elliot MADDOX, et al., Plaintiffs-Respondents, v. The CITY OF NEW YORK, et al., Defendants Third-Party Plaintiffs-Appellants, D. Reiner, Inc., Third-Party Defendant-Appellant, New York Yankees, Third-Party Defendant Fourth-Party Plaintiff-Respondent, The American League of Professional Baseball Clubs, Fourth-Party Defendant-Appellant. (Action) Elliot MADDOX, Plaintiff-Respondent, v. THOMAS CRIMMINS CONTRACTING COMPANY, Defendant-Respondent, U.R.S. Madigan-Praeger, Inc., Defendant-Appellant. (Action)
• Court: New York Supreme Court — Appellate Division

Page 354

487 N.Y.S.2d 354

108 A.D.2d 42

Elliot MADDOX, et al., Plaintiffs-Respondents, v. The CITY OF NEW YORK, et al., Defendants Third-Party

Plaintiffs-Appellants,

D. Reiner, Inc., Third-Party Defendant-Appellant,

New York Yankees, Third-Party Defendant Fourth-Party

Plaintiff-Respondent,

The American League of Professional Baseball Clubs,

Fourth-Party Defendant-Appellant. (Action No. 1)

Elliot MADDOX, Plaintiff-Respondent, v. THOMAS CRIMMINS CONTRACTING COMPANY, Defendant-Respondent,

U.R.S. Madigan-Praeger, Inc., Defendant-Appellant. (Action No. 2)

Supreme Court, Appellate Division Second Department.

April 1, 1985.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Leonard Koerner, June A. Witterschein and Marvin R. Kwartler, New York City, of counsel), for defendant third-party plaintiff-appellant The City of New York.

Burke, Curry, Hammill & O'Brien, Mineola (Marshall D. Sweetbaum, Bellerose, of counsel), for defendant third-party plaintiff-appellant Metropolitan Baseball Club, Inc.

Newman & Schlau, P.C., New York City (Philip Schlau, David T. Fowler and Anthony J. Briguglio, New York City, of counsel), for third-party defendant-appellant D. Reiner, Inc.

Ahmuty, Demers & McManus, Garden City (Michael J. Rabus, Garden City, of counsel), for fourth-party defendant-appellant.

Wilson, Elser, Edelman & Dicker, New York City (Thomas W. Hyland, James L. Fischer and John H. Somoza, New York City, of counsel), for defendant-appellant U.R.S. Madigan-Praeger, Inc.

Lipsig, Sullivan & Liapakis, P.C., New York City (Harry H. Lipsig, Pamela Anagnos Liapakis, Robert Gray Sullivan and Cyrus M. Diamond, New York City, of counsel), for plaintiffs-respondents.

Pizzitola & Inzerillo, Lake Ronkonkoma (Robert F. Saunderson, Coram, on the brief), for third-party defendant fourth-party plaintiff-respondent.

John J. Wrenn, New York City (Joanne Redden, New York City, of counsel), for defendant-respondent.

Before TITONE, J.P., and MANGANO, GIBBONS and O'CONNOR, JJ.

PER CURIAM.

These actions stem from an incident which occurred on June 13, 1975, when Elliot Maddox, centerfielder for the New York Yankees, slipped and fell while fielding a ball during the ninth inning of a nighttime game against the Chicago White Sox; at the time the Yankees were playing at Shea Stadium since Yankee Stadium was undergoing extensive renovation. Thereafter, plaintiffs brought suit against various defendants, including the City of New York, Shea Stadium and the Metropolitan Baseball Club, alleging, inter alia, that they were negligent in the ownership, maintenance, design and construction of the stadium and that their negligence was the cause of the injuries he sustained. Additional parties were impleaded and sundry cross claims were instituted.

At an examination before trial, plaintiff Elliot Maddox (Maddox) said that after he chased and caught up with the ball in right centerfield and while he was in the process of throwing the ball back into the infield, his "left foot hit I guess it was a wet spot and took off" and his "right foot was stuck in the water, a mud puddle and wouldn't move and therefore, my right knee buckled". Maddox admitted that a game scheduled for the night before the accident had been canceled because of the weather and poor field conditions. He further admitted that earlier in the game in question he had observed the centerfield to be "awfully wet" with "some mud" and had even noticed "some standing water" above the grass line when he "went over after a fly ball once into right center". Maddox also stated that he had previously played on a wet field. Although Maddox claimed to have informed an unidentified grounds crew member of the aforementioned condition, he did not contend that he had requested not to play or to send in a replacement.

Subsequent to this deposition, various defending parties moved for summary judgment on the grounds of assumption of risk and contributory negligence. While recognizing that "a finding of either assumption of the risk or contributory negligence would completely bar plaintiffs' recovery inasmuch as his cause of action accrued prior to September 1, 1975. (Cf. CPLR 1411, 1413.)", Special Term went on to distinguish a long line of cases involving athletes and assumption of risk on the ground that they "involved amateur participants in recreational sporting events". 121 Misc.2d 358, 359, 360, 467 N.Y.S.2d 772. The court concluded that Maddox was "carrying out his assigned duties * * * [and] acting within the confines of a superior's instructions" and that it was a question of fact whether he acted reasonably. 121 Misc.2d 361, 467 N.Y.S.2d 772. We cannot agree and reverse, and grant summary judgment against plaintiffs.

It has long been established in this State that participants in athletic events assume the risk of injury normally associated with the sport (see, e.g., Scaduto v. State of New York, 86 A.D.2d 682, 446 N.Y.S.2d 529, affd. 56 N.Y.2d 762, 452 N.Y.S.2d 21, 437 N.E.2d 281 on opn. at App.Div. [baseball player assumes dangers of game, including possibility of falling while in pursuit of ball]; Passantino v. Board of Educ. of City of N.Y., 41 N.Y.2d 1022, 395 N.Y.S.2d 628, 363 N.E.2d 1373; Curcio v. City of New York, 275 N.Y. 20, 9 N.E.2d 760; Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482, 166 N.E. 173 [Cardozo, Ch.J.] [participant in sport accepts dangers that are inherent in it so far as they are obvious and necessary]; Dillard v. Little League Baseball, 55 A.D.2d 477, 390 N.Y.S.2d 735, lv. denied 42 N.Y.2d 801, 396 N.Y.S.2d 1026, 364 N.E.2d 1345; Diderou v. Pinecrest Dunes, 34 A.D.2d 672 310 N.Y.S.2d 572). Although, as Special Term noted, these cases essentially deal with amateur sports, we find no reason in the case at bar to depart from the stated rule.

In his examination before trial, Maddox admitted that he knew centerfield and right centerfield to be wet, that he continued to play ball in spite of this awareness and that he sustained injury after falling on a wet spot in right centerfield. Here, where the danger of falling on the wet playing field was obvious, it makes no sense to relieve plaintiffs from the effects of the doctrine of assumption of risk merely because Maddox was a professional, and not an amateur, player (cf. Davidoff v. Metropolitan Baseball Club, 92 A.D.2d 461, 459 N.Y.S.2d 2, affd. 61 N.Y.2d 996, 475 N.Y.S.2d 367, 463 N.E.2d 1219 [standard of care imposed on proprietor of professional playing field not different from that imposed on proprietor of high school field]; Heldman v. Uniroyal, 53 Ohio App.2d 21, 371 N.E.2d 557 [assumption of risk applicable to professional tennis player]; Santiago v. Clark, 444 F.Supp. 1077 [assumption of risk applicable to professional jockey] ). To do so would be to hold a seasoned professional who is handsomely paid for his endeavors to a lower standard of care and place him in a more advantageous position than a less-seasoned amateur who receives no remuneration whatsoever. Simply stated, as long as there are, as here, open stadiums, natural grass fields, and rain, playing on an open wet field is part of the game of baseball, both for an amateur and a professional athlete. As much as one may sympathize with Maddox, the fact is that there is no cogent reason for holding assumption of risk inapplicable at bar and since the action accrued prior to September 1, 1975, as Special Term noted, that doctrine completely bars recovery. ¹

In an effort to avoid being called out at first base, however, Maddox argues that the assumption of risk doctrine is inapplicable at bar since his employer violated a "non-delegable duty with respect to the furnishing of a safe place to work", and in any event, his superiors forced him "to either work under unsafe conditions or abandon his work". We find these arguments unpersuasive.

It is quite true that a defense of assumption of risk (or contributory negligence) is unavailable to an employer who violates his statutory duty to supply an employee with a safe place to work (Labor Law § 200; Fitzwater v. Warren, 206 N.Y. 355, 99 N.E. 1042; France v. Abstract Title Div. of Title Guarantee Co., 50 A.D.2d 711, 374 N.Y.S.2d 886). Nevertheless, to avail himself of a statute's protection, a plaintiff must demonstrate that he is within the class of persons the statute was designed to protect (see Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339; McEvoy v. City of New York, 266 App.Div. 445, 449, 42 N.Y.S.2d 746, affd. 292 N.Y. 654, 55 N.E.2d 517).

The applicable statutory provision at bar, Labor Law § 200, has its genesis in the Labor Law of 1909 (L.1909, ch. 36 §§ 81, 19, as amended by L.1919, ch. 545; Labor Law former § 20-b, added by L.1913, ch. 145; see Historical Note, McKinney's Cons.Laws of N.Y., Book 30, Labor Law § 200, p. 142). The two former sections are entitled, respectively, "Protection of employees operating machinery" and "Inspection of scaffolding, ropes, blocks, pulleys and tackles", while the latter section, entitled "Protection of employees", provides in pertinent part that "[a]ll factories, factory buildings, mercantile establishments and other places to which this chapter is applicable, shall be so constructed, equipped, arranged, operated and conducted in all respects as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein." Clearly the purpose of these provisions was to protect a worker engaged in industry, and there is nothing in the subsequent amendments to these provisions or the legislative history that evinces an intent on the part of the Legislature to expand the class of protected individuals to include baseball players (see L.1962, ch. 450; Governor's memorandum of approval, McKinney's Session Laws of N.Y., 1962, p. 3633; N.Y.Legis.Ann., 1962, pp. 217-218, 346; L.1964, ch. 370; N.Y.Legis.Ann., 1964, pp. 391-392). Indeed, the language of present-day section 200...