Opinion
7139-05.
Decided September 29, 2008.
Law Offices of John W. Bailey Associates, P.C. Attorneys for Plaintiff (John W. Bailey, of counsel) Pine West Plaza 2, Suite 202 Albany, New York 12205.
Boeggeman, George Corde, P.C. Attorneys for Defendant DiSanti (Paul A. Hurley and Thomas A. Sica, of counsel) 39 North Pearl Street, Suite 501 Albany, New York 12207.
Hiscock Barclay, LLP Attorneys for Defendant Syracuse University (Matthew J. Larkin and Robert A. Barrier, of counsel) One Park Place 300 South State Street Syracuse, New York 13202-2078.
The Cambs Law Firm, LLP Attorneys for Defendant McNeil (Jennifer E. Matthews and Peter J. Cambs, Sr.) 5701 West Genesee Street Camillus, New York 13031-1280.
Plaintiff Cornelius J. O'Connor, Jr. brought this action to recover for personal injuries sustained on February 11, 2005 at the Syracuse University Tennity Ice Pavillion ("Tennity") while attending a club hockey game between Syracuse University ("Syracuse") and Slippery Rock University ("Slippery Rock"). As the game ended, O'Connor was standing near where players exit the ice, and he was injured when he attempted to break up an altercation between defendant Matthew DiSanti, a Slippery Rock player, and defendant Brian McNeil, a Syracuse student who was a spectator at the game. In attempting to pull McNeil away from DiSanti, O'Connor fell to the ground, sustaining a serious fracture of his ankle.
Slippery Rock previously has been dismissed as a defendant from this action by stipulation.
McNeil and Syracuse now move pursuant to CPLR 3212 for summary judgment seeking dismissal of plaintiff's amended complaint and any cross-claims asserted against them. DiSanti cross-moves for the same relief. Plaintiff opposes defendants' motions and cross-moves pursuant to CPLR 3126 for an order striking Syracuse's answer on account of an alleged failure to produce a witness statement. McNeil cross-moves against Syracuse for the same relief.
MOTION TO STRIKE SYRACUSE'S ANSWER
Plaintiff contends that Syracuse has failed or refused to provide a signed witness statement given to a public safety officer the day after the incident. On that basis, plaintiff contends that Syracuse's answer should be stricken or other sanctions, such as a negative inference, should be imposed. McNeil joins in this application.
Katherine E. Jakobowski, who was 13 years old at the time of the incident, avers that she "observed Mr. O'Connor sustain injuries as a result of the incident." According to her affidavit submitted in connection with plaintiff's motion:
6. The next day, while attending another ice hockey game at the Tennity Pavilion . . . I was approached by an individual whom I recognized as a Syracuse University public safety officer. That individual asked me if I had witnessed the incident from the day prior and proceeded to take my statement. Although I cannot specifically recall whether the statement was transcribed by the individual or myself, I do specifically recall reviewing the statement and signing it.
7. As the statement was taken only one day after the incident, my recollection was very clear and I recall my statement to be very detailed in describing the incident which has become the subject of this litigation.
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9. I have been asked to appear for a video-taped examination before trial. I am willing to appear and provide testimony concerning my observations of the incident. However, as this incident occurred more than three years ago, I would like to view my statement from on or about February 12, 2005 prior to providing such testimony so as to fully refresh my recollection.
In opposition, Syracuse submits affidavits from public safety employees who aver that they do not recall either speaking to or taking a statement from Ms. Jakobowski. They further aver that no such statement was found after a thorough review of all relevant files.
The Court denies plaintiff's motion and McNeil's cross-motion in its entirety. Given the conflicting evidence as to whether a Syracuse employee received such a statement and the complete lack of evidence that any failure on the part of Syracuse to secure and turn over the alleged statement was willful, contumacious or in bad faith, it would be inappropriate to preclude Syracuse from defending this lawsuit on the merits.
Further, even if Syracuse were found to have been negligent in its handling of the alleged witness statement, the movants have failed to demonstrate that such statement is sufficiently material to plaintiff's case as to warrant the imposition of sanctions. Indeed, the record is devoid of evidence indicating what Ms. Jakobowski. may have witnessed and how her previously recorded observations of the incident bear on movants' cases. Moreover, while it is understandable that Ms. Jakobowski seeks to review her prior statement before offering testimony in this case, she nonetheless remains available to testify and offer her present recollections of the incident.
SUMMARY JUDGMENT
Summary judgment is a drastic remedy and should only be granted if there are no material issues of disputed fact ( Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395). In evaluating a motion for summary judgment, a court should simply determine whether material issues of disputed fact preclude the grant of judgment as a matter of law( S. J. Capelin Assoc. v. Globe Mfg Corp., 34 NY2d 338). The party moving for summary judgment has the initial burden of coming forward with admissible evidence to support the motion, so as to warrant the Court directing judgment in movant's favor; the burden then shifts to the opposing party to demonstrate, by admissible evidence, the existence of any factual issue requiring a trial of the action ( see Zuckerman v. City of New York, 49 NY2d 557).
Defendants argue, inter alia, that plaintiff's voluntary decision to attempt to break up an altercation between college students was the sole proximate cause of his injuries, and that the doctrine of assumption of the risk bars plaintiff from obtaining any recovery. In response, plaintiff argues he was injured as the result of defendants' negligence in two primary respects: (1) Syracuse failed to adequately supervise the Tennity facility during the hockey game, thereby creating a foreseeable risk of an altercation between players and spectators that would endanger other spectators, such as plaintiff; and (2) McNeil and DiSanti were negligent in engaging in a physical altercation that threatened the safety of themselves, other spectators and other players.
In support of their motions for summary judgment, defendants rely on plaintiff's deposition testimony, in which he testified, in pertinent part:
Q. Did there come a point in time of course, that the game ended and when the game ended what did you do?
A. Well, sometime during the third period I had left the stands, gone to the men's room, ah, and went to the end of the rink closest to the exit door of the rink to watch the balance of the game. And, ah, that's where I was at the end of the game.
Q. Okay, was that in the general location where this altercation ensued?
A. Probably within ten or fifteen feet of where the altercation occurred.
Q. Why did you decide to move to that particular area?
A. Ah, to where the altercation occurred?
Q. Yes.
A. Well, after the game, the kids come off the ice. I had met some Slippery Rock players at a tournament earlier that season. And usually I try to say a good word to the players. I was looking for those two kids I met and just say, you know, good game guys or something. So I was standing on the other side of this barricade just basically telling them they did a good job. It was a tough game. And that's — that's why I ended there.
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Q. All right. And did there come a point in time that you observed some sort of . . . altercation?
A. Yes.
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Q. Okay, what did you observe which led you to believe there was this altercation, what did you see?
A. Well, I was standing and talking to the players, generally. The players had stopped in front of me. The locker door wasn't open, so they were delayed getting to the locker and just having general conversation with them. There was a player in front of me to my right who I heard yell to someone behind me, "come back here and say that". And I didn't think a lot about that. Ah, and within several seconds or maybe five seconds, I just felt a presence of someone standing to, my right. I sort of glanced over my shoulder and I could see it was a student. And what I recall is the Slippery Rock player grabbing Brian and swinging at him with his right hand. Now, ah, I don't recall any conversation between the two of them at the time, but I recall him grabbing Brian and swinging at him. I grabbed Brian around his waist and I was — my plan was to pull him away from the player. And somehow we got pulled forward, ah, into the, ah, apparently over the barricade. I don't recall that, but we got pulled over to where the all the players were. I ended up on the ground on top of Brian with a pile of players on top of us.
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Q. Now you said you saw a player grab Brian and start punching him?
A. Well, I recall him grabbing him, pulling him towards him and throwing a punch. I don't remember seeing more punches at that point. Once we fell to the ground I remember seeing punches coming down at us.
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Q. Now you said . . . you grabbed Brian from behind around his waist?
A. Right.
Q. Why were you trying to do that or why did you do that?
A. Well, he was being pulled towards — across the barrier to these players and I thought I could grab him and pull him the other way, keep him away from the situation.(emphasis added).
In addition, Syracuse submits competent evidence, including the testimony of a safety officer present that evening and the assistant manager of the Tennity facility, demonstrating that there was nothing in McNeil's actions that put Syracuse on notice of the pending altercation. Syracuse also offers proof that there had been no prior incidents involving an altercation between a player exiting the ice and a spectator. In addition, Syracuse notes that it has a strict no-alcohol policy in place at the facility, and that there is no evidence that Syracuse knew or should have known of any alcohol consumption by McNeil that evening. Finally, Syracuse submits proof that adequate security measures were taken at the event, including having at least four University staff members on site for a club hockey game in a small capacity (365 persons) venue and the placement of barriers to keep spectators and players apart as the players exit the ice.
Through plaintiff's own testimony, McNeil and DiSanti have made a prima facie showing that they have "violated no legally cognizable duty owing to the [plaintiff]" ( Henry v Vann, 124 AD2d 783, 784 [2d Dept 1986]), in that plaintiff made a voluntary decision to involve himself in the altercation, thereby assuming the risk of injury in so doing ( see Watson v State of New York, 77 AD2d 871 [3d Dept 1980]). Moreover, Syracuse has established prima facie that it acted in a reasonable manner to prevent foreseeable risks of harm to spectators at the Tennity facility. The burden then shifts to plaintiff to demonstrate the existence of triable issues of material fact.
In attempting to identify questions of fact with respect to Syracuse's alleged negligence as the owner and operator of the Tennity facility, plaintiff relies on testimony showing that spectators had been removed from Tennity for drinking alcohol on prior occasions. Further, plaintiff's wife claims to have observed certain spectators drinking alcohol on the night of the incident (though not McNeil). Further, plaintiff argues that there were prior incidents of fights between Syracuse hockey players and their opponents, thereby making the instant altercation foreseeable.
The Court concludes that plaintiff has failed to raise a triable issue of fact with regard to Syracuse's duty to protect plaintiff from harm.
It is well settled that "[l]andowners in general have a duty to act in a reasonable manner to prevent harm to those on their property. . . . Specifically, "they have a duty to control the conduct of third persons on their premises when they have an opportunity to control such persons and are reasonably aware of the need for such control". . . . Therefore, while the owner of a public establishment has a duty to act reasonably to control third persons "so as to prevent harm to its patrons" . . . he or she has no duty "to protect patrons against unforeseeable and unexpected assaults". . . ."
( Stafford v 6 Crannel St., 304 AD2d 997, 998 [3d Dept 2003]).
Plaintiff has failed to come forward with proof demonstrating that Syracuse had notice of the pending altercation between McNeil and DiSanti. While plaintiff testified that the fans were loud that evening, he also testified that he did not see anything unusual or that required the attention of campus security officers. Nor did plaintiff observe any conduct on the part of McNeil that could have alerted Syracuse officials to the potential for McNeil to become involved in a physical altercation with a hockey player exiting the ice.
Moreover, nothing in plaintiff's opposition papers controverts Syracuse's proof that there never had been a prior incident at Tennity involving an altercation between a player and spectator. In fact, plaintiff himself regularly has attended club hockey events at the facility for approximately four years and never observed a similar altercation. While plaintiff points to prior incidents of fights between Syracuse hockey players and opposing players, a fight between a player and spectator raises entirely different issues of forseeability. Accordingly, plaintiff has failed to rebut Syracuse's contention that the incident was a spontaneous and unexpected event.
With respect to the allegations regarding McNeil's alcohol consumption, nothing in the record contradicts defendant's sworn testimony that he had not consumed any alcohol at the game. And even if McNeil had been drinking prior to, or even at, the event, the record is clear that Syracuse maintains and enforces a "no alcohol" policy at the facility. Indeed, plaintiff himself testified that he had not seen anyone consume alcohol while at the facility that evening. Further, even if McNeil were intoxicated, plaintiff fails to come forward with proof that McNeil's actions that evening can or should have put Syracuse on notice of his alleged violation of the no alcohol policy.
Finally, plaintiff fails to demonstrate that Syracuse's general security measures were inadequate to address the reasonably foreseeable risks to spectators. The Court bases this conclusion on, inter alia: (1) the posting of four Syracuse personnel on site at the relatively small Tennity venue; (2) the facility's "no alcohol" policy; (3) the use of barriers to separate players and spectators when players are leaving the ice; and (4) the lack of similar incidents at Tennity. Plaintiff's conclusory assertions that Syracuse should have done more are not sufficient to create a triable issue of fact.
In this connection, the Court rejects plaintiff's contention that the record demonstrates a failure of the part of Syracuse security officers to follow their own rules and procedures for ice hockey. Those rules provide, inter alia, that one security officer will escort the visiting team to and from their dressing room and keep a "close eye" on the stands to discourage fans from harassing the referees and the visiting team. The deposition of Brian Taroli, a safety officer employed by Syracuse, shows that he was positioned near the Slippery Rock players as they exited the ice, consistent with the stated policy. Further, the security officer reached DiSanti and McNeil just moments after the incident occurred. No proof to the contrary is put forward in plaintiff's opposition papers. Thus, "[i]t is difficult to understand what measures could have been undertaken to prevent plaintiff's injury except presumably to have had a security officer posted at the precise location where [plaintiff stood] . . ., surely an unreasonable burden" ( Florman v. City of New York, 293 AD2d 120, 127 [1st Dept 2002]).
As to defendants' argument that plaintiff's voluntary decision to attempt to break up the altercation was the sole proximate cause of his injuries and that the doctrine of assumption of the risk bars plaintiff from obtaining any recovery, plaintiff relies upon the "danger invites rescue" doctrine. Such doctrine holds that "[t]he wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer" ( Wagner v International Ry. Co. 232 NY 176). "The doctrine has been held to apply . . . where a potential rescuer reasonably believes that another is in peril. . . . and the fact that the danger did not actually exist does not abrogate liability. . . . While more than a suspicion of danger to another person is necessary, such a determination is made on the facts and circumstances of each case. . . ." ( Gifford v Haller, 273 AD2d 751, 752-753 [3d Dept 2000]).
Even accepting the plaintiff's account of the incident as true and according him the benefit of every favorable inference, the Court finds that the proof does not support application of the "danger invites rescue" doctrine. Plaintiff was deposed on two occasions prior to the instant motion practice, and asked directly why he intervened in the altercation. There is nothing in his deposition testimony that even hints that he reasonably believed that McNeil (or anyone else) was at risk of serious injury or death at the time he voluntarily involved himself in the altercation by attempting to "grab" McNeil. Plaintiff's desire to "keep [McNeil] away from the situation" as understandable and commendable as it might be simply does not provide a sufficient basis for concluding that his actions were undertaken to avoid the imminent peril of serious injury, so as to warrant invocation of the "danger invites rescue" doctrine. While plaintiff's counsel offers the conclusory averment that "plaintiff had sufficient cause to conclude McNeil was in immanent peril of being seriously injured', an attorney affirmation not based on personal knowledge is devoid of probative value ( see Rossi v C.C.O. Equip., 200 AD2d 933 [3d Dept 1994]).
When the deficiencies in the proof supporting application of the "danger invites rescue" doctrine were brought to plaintiff's attention in defendants' reply papers, his counsel submitted a sur-reply affidavit of the plaintiff. Along with the submission, plaintiff's counsel submitted an affirmation seeking leave to serve such sur-reply affidavit. According to plaintiff's counsel, "an associate no longer with the firm, drafted plaintiff's opposition to the defendants' respective motions for summary judgment. In so doing, and perhaps as a result of his inexperience, he did not submit an Affidavit of plaintiff. . . ."
Defendants object to the submission of such sur-reply affidavit, arguing that "[t]his is being used as a tactical strategy by plaintiff's counsel to have an opportunity to review the defendant's motion papers, arguments and cases and then seek permission from the court to serve a sur reply affidavit in an attempt to create an issue of fact. This is a strategy that should not be condoned by the court."
The Court will not consider the sur-reply papers filed by plaintiff. Sur-reply submissions are not authorized by CPLR 2214, and plaintiff's counsel has failed to demonstrate "good cause" for failure to include an affidavit of plaintiff as part of its timely opposition to defendant's motions ( see Thermo Spas Inc. v Red Ball Spas and Baths, 199 AD2d 605 [3d Dept 1993]; Traders Co. v AST Sportswear, Inc. , 31 AD3d 276 [1st Dept 2006]). This is not a case where plaintiff's counsel failed to enclose an affidavit previously prepared for such purpose in his opposition papers. Rather, the "inadvertence was in failing to realize the necessity for an affidavit from the party" ( Foitl v G.A.F. Corp., 64 NY2d 911, 913).
Plaintiff's counsel presumably reviewed the defendants' motion papers, and made a reasoned judgment as to how best to oppose the motions. Having chosen to rely on the two depositions of plaintiff, counsel cannot review defendants' reply papers identifying the deficiencies in his proof and then, armed with that knowledge, submit an affidavit crafted to create a material issue of fact. The Court notes that while the language of plaintiff's affidavit parrots the language of cases allowing reliance on the "danger invites rescue" doctrine (e.g., "imminent risk of danger" to the participants in the altercation, himself, and other bystanders), no similar fears had been expressed by plaintiff on the two occasions on which he was deposed. As such, the affidavit appears to be designed to allow plaintiff "to avoid the consequences of [his] earlier deposition testimony. ( Tejada v Jonas , 17 AD3d 448 , 448 [2nd Dept 2005]).
In any event, there simply is no evidence in the record that plaintiff "reasonably could have believed that [defendant McNeil] . . . was in imminent peril so as to justify the application of the danger invites rescue' docrine." ( Tassone v Johanneman, 232 AD2d 627, 628 [2nd Dept 1996]; see Ha-Sidi v South Country Cent. School Dist., 148 AD2d 580 [2nd Dept 1989]). Plaintiff intervened at a time when, at most, one punch had been thrown in the direction of McNeil, and there is no record basis upon which plaintiff could reasonably have believed that the ice skates and/or hockey sticks of DiSanti and the other Slippery Rock players posed a danger to McNeil or other spectators. As such, the altercation did not rise to the level of a perilous situation that invited rescue ( see Ha-Sida, supra).
Accordingly, it is
ORDERED that plaintiff and defendant McNeil's cross-motion to strike defendant Syracuse University's answer are denied in its entirety; and it is further
ORDERED that defendants' motions and cross-motions seeking dismissal of the Amended Complaint are granted; and it is further
ORDERED that the complaint is this action is hereby dismissed in its entirety.
This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to counsel for defendant Syracuse University. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.