Opinion
No. HHB-CV-05-4004214-S
July 18, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #108.00
I. FACTS AND PROCEDURAL BACKGROUND
On February 28, 2005 the plaintiff, Michael Teixiera, commenced a personal injury action by way of a one-count complaint against the defendant, New Britain Baseball Club, Inc. (NBBC), also known as the New Britain Rock Cats. NBBC operates a baseball field known as New Britain Stadium (the stadium) in New Britain, Connecticut. On July 3, 2004, having received tickets from a co-worker, the plaintiff went there with his minor son to attend a Rock Cats game. While in line to enter the stadium, the plaintiff purchased two tickets for an all-you-can-eat barbeque that was held before the game in the Pepsi Picnic Patio (Patio). The plaintiff was escorted from the line to the Patio which was down the right field line adjacent to the permanent stands. Prior to the start of the game and just before the plaintiff and his son finished eating, two baseball players with the Rock Cats began throwing to one another in the right field area. Thereafter, while in the Patio, the plaintiff was struck in the testicles by an errantly thrown baseball.
The plaintiff claims in his complaint that NBBC caused the plaintiff's injuries and losses in that: it failed to have a fence of sufficient height separating the picnic area from the playing field; one or more baseball players on the field were allowed to throw baseballs perpendicular to the Patio; one or more baseball players on the field threw a baseball in the direction of the Patio despite the presence of the plaintiff and, no warning was given to the plaintiff of the thrown baseball.
On April 15, 2005, the defendant filed an answer and special defenses. On December 8, 2005, the defendant filed a motion for summary judgment, accompanied by a memorandum of law with several exhibits including affidavits, depositions, interrogatories, photographs and other documents. In support of its motion, the defendant argues that the plaintiff's negligence action against the defendant must fail because: (1) there is insufficient evidence to sustain a favorable verdict for the plaintiff; (2) plaintiff contractually assumed the risk of being struck by a thrown baseball; (3) the defendant owed the plaintiff no duty to warn about the alleged dangerous condition; (4) even if the defendant had a duty to warn the plaintiff of the dangers of being struck by a baseball, the defendant satisfied the duty of care; and (5) under the "limited duty" rule, the defendant fulfilled its duty to the plaintiff.
Subsequently, on March 20, 2006, the defendant filed a motion for permission to file, a motion for summary judgment which was granted by the court.
Normally, "only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 2005). "However, our Supreme Court has stated that parties may `knowingly waive compliance with the procedure provisions of the Practice Book relating to motions for summary judgment.' Krevis v. Bridgeport, 262 Conn. 813, 824, 81 A.2d 628 (2003). Also, our Supreme Court has stated, `[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency.' Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003) . . . [W]here each party has asked the court to consider uncertified documents, and no objection was raised on that basis to their consideration, the court, in the exercise of its discretion, has reviewed the exhibits submitted by each side." Fabrizio v. Bristol Housing Authority, Superior Court, judicial district of New Britain, Docket No. CV 055000208 (October 21, 2005, Shapiro, J.); see Barlow v. Palmer, 96 Conn.App. 88, 92 (2006) ("In interpreting the rules liberally, the deposition testimony could have been admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists particularly where, as here, both parties submitted uncertified deposition transcripts."). Here too, both pates have submitted to one extent or another uncertified documents and neither party has objected to the consideration of such documents. In that there has been no objection raised, the court will, in the exercise of its discretion, consider those portions of the deposition testimony which are uncertified along with the other documents submitted that are not originals in the interest of judicial economy and fairness.
On February 9, 2006, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment, accompanied by an affidavit of Michael Teixiera as well as the plaintiff's July 25, 2005 deposition.
Oral argument was held before the court on April 10, 2006.
III. STATEMENT OF LAW
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn.App. 666, 670, 874 A.2d 798 (2005). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
Also, in this instance "the issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 478-79, 822 A.2d 1202 (2003).
As to the issue of duty of care, "[i]n general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee . . . A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land . . ." Sevigny v. Dibble Hollow Condo. Ass'n., 76 Conn.App. 306, 320, 819 A.2d 844 (2003). In order for "the plaintiff to recover for breach of a duty owed to [him] as a[n] invitee, the plaintiff [must] allege and prove that the [defendant] had either actual or constructive knowledge of the specific defective condition which caused the injury and not merely of conditions naturally productive of that defect . . ." (Internal quotation marks omitted.) Boretti v. Panacea Co., 67 Conn.App. 223, 228, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 91 A.2d 565 (2002).
"A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe . . . In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Citation omitted; internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Assn., Inc., supra, 6 Conn.App. 306. However, "a possessor of land has no duty to warn an invitee of a dangerous condition when the invitee has actual knowledge of the condition . . . Warning an invitee against dangers which are either known to him or are so obvious to him that he may be expected to discover them is unnecessary." (Citations omitted; internal quotation marks omitted.) Kurti v. Becker, 54 Conn.App. 335, 344-45, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999).
III. DISCUSSION
The plaintiff and the defendant both agree that the plaintiff was a business invitee and the court finds there is no question that he was such. The plaintiff used a ticket given to him by a co-worker to enter the stadium and then purchased a ticket for himself and his son to enter the Patio for a barbeque offered by NBBC. Although Connecticut courts have not decided an issue relating to what type of duty a baseball stadium owner owes a spectator, the issue has been addressed in other jurisdictions. Collectively, those jurisdictions are split on the issue. While some jurisdictions believe that an owner of stadium should be held to the standard of reasonable care in maintaining a stadium relative to its invitees, it appears an approximately equal number of jurisdictions have adopted the reasoning of a "limited duty" rule. That rule holds that the owner is only responsible for screening the most dangerous section of the field (the area behind home plate). See Akins v. Glen Falls City School District, 424 N.E.2d 531, 533 (1981). The purpose and reasoning of such a rule is thoroughly set forth in Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 223 (Mich.App. 2001) wherein the Court of Appeals of Michigan stated:
Both parties have cited several cases in their favor which they believe address the issue. The defendant cites the following cases in its brief in support of adopting the limited duty rule or a similar variation thereof. See Wade-Keszey v. Town of Niskayuna, 772 N.Y.S.2d 401 (2004) (dismissing complaint where plaintiff struck by baseball walking to bathroom); Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219 (Mich.App. 2001); Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013 (Utah 1995) (finding only duty to provide screening behind home plate with normal seating capacity); Bellezzo v. State, 851 P.2d 847 (Ariz.Ct.App. 1992) (holding as a matter of law owner of field fulfilled duty by screening behind home plate); Akins v. Glens Falls City School District, 424 N.E.2d 531 (1981). The plaintiff cites the following cases in support of its argument for the court to adopt a broader liability for baseball stadium owners. See Lowe v. California League of Prof. Baseball, 56 Cal.App. 4th 112 (1997) (imposing duty to not increase inherent risks of baseball game involving mascot distraction); Coronel v. Chicago White Sox, Ltd., 595 N.E.2d 45 (Ill.App.Ct. 1st Dist. 1992) (holding question of fact whether area behind home plate adequately screened); Jervolino v. Pittsburgh Athletic Co., Inc., 212 Pa.Super. 330 (1968) (holding that case should not go to jury when plaintiff does not prove by preponderance of evidence defendant failed to exercise reasonable care in erecting stadium and jury may not speculate); Maytnier v. Rush, 225 N.E.2d 83 (Ill.App.Ct. 1st Dist. 1967) (holding owner of a ballpark does not release himself of liability because there is adequate fenced-in area for the most dangerous part of the stadium); The Cincinnati Baseball Club Co. v. Eno, CT Page 13658 112 Ohio St. 175 (1925) (holding a jury question existed as to whether defendant breached its duty to plaintiff by allowing players to practice near the grand stand during an intermission); Blakely v. White Star Line, 154 Mich. 635 (1908) (land owner owed duty to plaintiff when plaintiff stuck by ball from throw and catch game on landowner's property). For the most recent case on the issue, which splits the baby in halt see Maisonave v. Newark Bears Professional Baseball Club, Inc., 185 N.J. 70, 881 A.2d 700 (2005) (limited duty rule applies to spectators while in the stands, but traditional negligence principles apply in other areas of the stadium).
In Akins, the Court of Appeals circumscribed the duty of care owed by a stadium owner to a spectator in that "the proprietor . . . need only provide screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest . . . [and] such screening must be of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of any ordinary game." Akins v. Glens Falls City School Dist., supra, 331.
The Detroit Tigers were a charter member of the American League upon its creation in 1901 as a rival to the established National League.
[T]he limited duty rule does not ignore or abrogate usual premises liability principles. Instead, it identifies the duty of baseball stadium proprietors with greater specificity than the usual "ordinary care/reasonably safe" standard provides. The limited duty precedents do not eliminate the stadium owner's duty to exercise reasonable care under the circumstances to protect patrons against injury . . . Rather, these precedents define that duty so that once the stadium owner has provided adequately screened seats for all those desiring them, the stadium owner has fulfilled his duty of care as a matter of law. The limited duty doctrine establishes the outer limits of liability and thereby prevents a jury from requiring a stadium owner to take precautions that are clearly unreasonable . . . By providing greater specificity with regard to the duty imposed on stadium owners, the rule prevents burgeoning litigation that might signal the demise or substantial alteration of the game of baseball as a spectator sport.
(Internal quotation marks and citations omitted.)
Having reviewed the cases from other jurisdictions on the issue, this court adopts the reasoning of the limited duty rule finding it to be applicable to owners and operators of baseball stadiums such as NBBC. In this case, NBBC had placed screen netting behind home plate which was approximately 30 feet in height and approximately 155 feet in length. (Defendant's Exhibit C.) The screened area behind home plate is available to those spectators who may desire seating safe from any thrown or batted balls which might otherwise enter the stands. It is also common knowledge that this is the area of the baseball field which has the highest frequency of a ball being in play whether it be thrown or batted. This is true not only during the game but also during pre-game activities where the frequency of activity and number of balls being used at one time is higher (e.g., batting practice, infield practice, players warming up, often all take place at the same time). The corollary to this is that the area down the outfield foul lines, furthest away from the home plate area, are the least likely to have a ball in play. Given the lessened level of risk of being struck by a thrown or batted ball in these areas, it is unnecessary to have the same extensive netting or other protections in place for the benefit of the spectators.
Although the plaintiff suffered his injury before the game started, the extent of the duty of an owner is not dependent upon the time at which a spectator is in the stadium. It would be highly impractical to require an owner to put into place levels of netting or screening before or after a game different than those required during the course of a game. Stadium owners are not guarantors of a spectator's safety. Akins v. Glen Falls City School District, supra, p. 331. Other than the plaintiff's simple allegations that the fence along the Patio was insufficient, the plaintiff has offered no material evidence regarding the adequacy of that fencing (or of that behind home plate) relative to its location in the park under the circumstances that existed then and there. "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).
In fact the only inference that could be made from the evidence presented by the plaintiff regarding the adequacy of the fence in the Patio area would appear to be favorable to the defendant: "And when I realized that the fence my son was walking towards was taller than he was (Emphasis added; plaintiff's deposition, p. 32, plaintiff's Exhibit 1.)
Moreover, the evidence presented by both the defendant and the plaintiff makes clear that the plaintiff was unsure as to whether the ball was thrown or batted, where the players were relative to the Patio at that time he was struck, and the distance that existed between the players themselves. The affidavit and deposition testimony of the plaintiff fail to establish a sufficient factual basis upon which to rebut the evidence offered by the defendant and thereby create a genuine issue of material fact. Given the location and extent of the netting, the defendant has met its limited duty as a matter of law.
Q: Did you see where the catcher was set up prior to the time you were injured?
A: No.
Q: Do you know how far away from the fence the catcher was?
A: No.
Q: Where in relation to the — where in relation to first base was the catcher just before you were injured?
A: I don't know, I'm not sure.
Q: Do you know if the ball actually went off the catcher's glove and was deflected?
A: No, I don't know.
Q: So at this point you couldn't tell us if it was just a wild throw versus the catcher not receiving the ball?
A: No, I don't know.
(Plaintiff's deposition, p. 37, plaintiff's Exhibit 1, defendant's Exhibit A.)
Q: Can you tell me where the pitcher was set up?
A: No.
Q: You can't tell me where the catcher was set up?
A: No.
Q: Can you give me the approximate distance between pitcher and catcher at that point?
A: No.
Q: Were there any other players out there warming up at that time?
A: I don't know.
(Plaintiff's deposition, p. 38, plaintiff's Exhibit 1, defendant's Exhibit A.)
Apart from the limited duty of an owner to put up netting behind home plate, the possibility and danger of being struck by a baseball is an open and obvious danger when attending a baseball game. "Warning an invitee against dangers which are either known to him or are so obvious to him that he may be expected to discover them is unnecessary." Kraus v. Newton, 14 Conn.App. 561, 569, 542 A.2d 1163 (1988), aff'd, 211 Conn. 191, 558 A.2d 240 (1989). This is particularly true where the plaintiff clearly had a familiarity with the nature of the game. In the 137 years since baseball was first professionally played, baseballs have been batted and thrown on and around the field of play with spectators always close to the field. In fact, up until the late 1940s fans in many parks were even allowed on the field along the outfield fence and down the foul lines to watch a game. Today of course, fans are not allowed on the field of play for the security of both the fans and players. However, one of the great lures of the game that still remains to bring spectators to the park, young and old alike, is the anticipation and hope that by the end of the game they will leave with a souvenir in the form of a ball that has come off the field of play. Spectators know even as they enter the park that balls are likely to come into the stands or other areas of the park.
In his deposition testimony, the plaintiff displayed his knowledge of a baseball field and the concept of a pitcher and a catcher. For example, when asked about the events leading up to his injury the plaintiff stated, "I had noticed that there were two players there, a pitcher and a catcher, and the pitcher was pitching to the catcher. They weren't having a catch, per se." (Deposition of Michael Teixeira, p. 4, defendant's Exhibit A.)
In 1869, the Cincinnati Red Stockings appeared as the world's first professional baseball team and defeated the opposing team the Great Westerns by a score of 45-9. That season the Red Stockings won their 60th game against the visiting Mutual Green Stockings of New York 17-8 before a crowd of over 7,000 spectators.
Sometimes balls are found flying outside the park. This is not unusual at most minor league facilities, but it occurs even on the major league level at places such as Fenway Park in Boston (over the Green Monster onto Lansdowne St.), Jacobs Field in Cleveland (through the Home Run Porch pavilion in left field and out onto E. 9th St.), ATT Park in San Francisco (over the right field stands into the water in McCovey's Cove where kayakers and boaters jockey for position in hopes of fishing out a prized souvenir), and PNC Park in Pittsburgh (where fans float on the Allegheny River waiting for a ball to splash down after traveling over the "Hit it Here" sign on top of the right field stands).
In cases finding a condition open and obvious as a matter of law, the plaintiff had some general familiarity with the condition prior to the accident. See Jevarjian v. Smith, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 03 0404269 (August 10, 2004, Wolven, J.) (hanging vine that fails to support after pulling on it open and obvious condition); Legasse v. Amabile, Superior Court, judicial district of Waterbury, Docket No. CV 99015178 (May 30, 2004, Doherty, J.) (steep grass slope used by plaintiff before injury open and obvious condition); Pacelle v. Taft School Corp., Superior Court, judicial district of New Haven, Docket No. CV 97 0406686 (April 26, 2000, Thompson, J.) (wet grass on a declining slope is open and obvious condition). Certainly in this case, the plaintiff had a general familiarity with the conditions that existed for the type of event he was attending, and such conditions were open and obvious to him. Reading the defendant's motion in the light most favorable to the non-movant, the plaintiff has failed to produce sufficient evidence to establish that there exists a genuine issue of material fact between the parties.
Even if one were to assume (though this court does not rule on the issue) that there was a duty to warn the plaintiff, the evidence presented by the defendant overwhelmingly establishes that sufficient warnings regarding thrown or batted balls were provided to the plaintiff by the defendant. While the plaintiff denies having seen any warnings regarding balls coming off the field of play (plaintiff's affidavit, paragraph 7; plaintiff's deposition pp. 28-29), the defendant produced several items of evidence to establish the existence of such warnings. Defendant's Exhibit C, the affidavit of William Dowling (the general manager of the Rock Cats) states in part:
"7. That on July 3, 2004, the fence leading into the Pepsi Picnic Patio had a warning sign posted which stated "BEWARE OF FOUL BALLS AT ALL TIMES. That sign is shown in the photograph that is attached to this affidavit as Exhibit 3.
8. That on July 3, 2004, the fence leading into the Pepsi Picnic Patio at New Britain Stadium had a sign posted on it that read: Welcome to the Pepsi Picnic Patio The New Britain Rock Cats ask that you be alert at all times to baseballs that may enter the picnic area from the field of play. You assume the risk and legal responsibility for any injury to your person or property arising out of your use of and presence in the picnic area." (Emphasis in original.)
Moreover, the back of the ticket held by the plaintiff to enter the stadium had the following language: "The holder of this ticket assumes all the risks and danger incidental to the game of baseball including specifically (but not limited to) the danger of being injured by thrown bats and thrown or batted balls, and agrees that the participating clubs, their agents and players are not liable for injuries from such causes." (Defendant's Exhibit B.)
While the issue of the language on a ticket, sign or waiver form being sufficient to support the release of liability of the baseball stadium owner is not dispositive of this case, it is noteworthy that the current matter is distinguishable from the release of liability language at issue in Hanks v. Powder Ridge Rest., 276 Conn. 314, 885 A.2d 734 (2005). In flanks, the release dealt with individuals who were participating in a sporting or physical activity offered by recreational operators as opposed to individuals who were spectators at an athletic event.
There is no question that although the conditions were open and obvious to the plaintiff, sufficient warnings were posted by the defendant for the benefit of its invitees to apprise them of conditions that were likely to exist while in the park. There was adequate notice to enable the plaintiff to take whatever precautionary measures he felt were appropriate under the circumstances to secure his safety.
IV. CONCLUSION
Reading the defendant's motion for summary judgment in the light most favorable to the plaintiff, and considering the evidence offered by both parties, the court finds that a reasonable person could only reach the conclusion that the defendant has met its limited duty as a matter of law. There exists no genuine issue of material fact between the parties and therefore the defendant's motion for summary judgment is granted.