Opinion
No. CV-07-5014070
March 19, 2010
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#121)
The defendant, Connecticut Islanders, LLC, has moved for summary judgment in this negligence action. The court is asked to decide whether, in Connecticut, the limited duty rule (also referred to as the "baseball rule") should be applied to the sport of hockey. The plaintiff's complaint alleges that while she was a spectator at a hockey game between the Bridgeport Sound Tigers and the Wilkes-Barre/Scranton Penguins, she was struck in the face by a hockey puck. The defendant, Connecticut Islanders, LLC has admitted possession and control of the interior of the Arena at Harbor Yard, the venue in which the Sound Tigers play. The defendant argues that the court should adopt the limited duty rule and grant summary judgment as the defendant has met the duty of care due to the plaintiff. The plaintiff argues that the rule has never been applied to the sport of hockey in Connecticut and there is no reason to do so now. The plaintiff argues that the usual negligence standard of care should apply and this court should deny summary judgment as there exists a genuine issue of material fact. For the reasons stated herein, the motion is granted.
Although the case was originally brought against five defendants, the plaintiff withdrew the original complaint and filed an amended single-count complaint against Connecticut Islanders, LLC.
"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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[T]he 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.) Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).
Generally, "[i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). Nevertheless, "[t]he 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 Assn., Inc., 264 Conn. 474, 478-79, 822 A.2d 1202 (2003). Thus, "[t]he 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.) Soares v. George A. Tomasso Construction Corp., 66 Conn.App. 466, n. 2, 784 A.2d 1041 (2001).
In 2006, a Connecticut superior court decision applied the limited duty rule to a negligence action arising from a spectator's injuries incurred at a New Britain Rock Cats baseball game. Teixiera v. New Britain Baseball Club, Inc., Superior Court, judicial district of New Britain, Docket No. CV-05-4004214 (7/18/06, Shaban, J.) ( 41 Conn.L.Rptr. 777). The limited duty rule holds that the stadium owner/operator is only responsible for screening the spectator seats in the most dangerous section of the field (in baseball, the area behind home plate). See Akins v. Glen Falls City School District, 424 N.E.2d 531, 533 (1981). The plaintiff in Teixiera, prior to the start of the game, was struck by an errant baseball while in the patio area adjacent to the field. The court examined decisions from other jurisdictions that had decided the type of duty a baseball stadium owner owes a spectator. Although those jurisdictions were split on the issue, the court adopted the reasoning of the limited duty rule, finding it to be applicable to owners and operators of baseball stadiums.
The Teiexiera decision quoted the purpose and reasoning of the rule from a decision of the Michigan appellate court. "The 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." Benejam v. Detroit Tigers, Inc., 246 Mich.App. 645, 651-53; 635 N.W.2d 219 (2001); appeal denied, 466 Mich.App. 873, 645 N.W.2d 664 (2002) (internal quotations and citations omitted).
In granting the defendant's motion, the court ultimately held that: the defendant met its limited duty to protect spectators at a baseball game from injuries resulting from a baseball when it placed screen netting behind home plate; the possibility that a spectator could be struck by a baseball before or during a game was an open and obvious danger; and the defendant adequately warned the spectator of the danger of thrown or batted balls.
The limited duty rule was also examined in Mantovani v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 05 50000480 (July 26, 2007, Cosgrove, J.) ( 44 Conn. L. Rptr. 13). In Mantovani, the plaintiff was participating in a cookout located in the right field pavilion area of the baseball stadium, when he was struck by a batted ball and suffered substantial injury to his eye. In support of its motion for summary judgment, the defendant baseball stadium argued that the limited duty rule applied and that it was only obligated to provide backstop netting to protect the spectators behind home plate and was not required to implement safety devices to protect the occupants of the right side pavilion area. In support of this argument, the defendant urged the court to adopt the rationale in Teixiera v. New Britain Baseball Club, Inc., supra, 41 Conn. L. Rptr. 777.
Judge Cosgrove, noting the lack of appellate authority on the applicability of the limited duty rule in Connecticut, reviewed not only the Teixiera decision but also decisions from other jurisdictions that had addressed this issue. Recognizing that other jurisdictions have taken several different approaches, the court settled on the approach taken in Maisonave v. Newark Bears Professional Baseball Club, Inc., 185 N.J. 70, 881 A.2d 700 (2005). In Maisonave, the Supreme Court of New Jersey held that the limited duty rule protected stadiums from liability only as to patrons located in the stands themselves, not patrons who were in such areas as the concourses and mezzanines, where they were unlikely to be able even to see the game and where it would not be fair to expect them to be watching for batted balls.
The court here notes that in Sciarrotta v. Global Spectrum, 194 N.J. 345, 360, 944 A.2d 630 (2008), the Supreme Court of New Jersey reinstated the decision of the trial court dismissing the claim of a plaintiff who was injured by a hockey puck during pre-game warm-up exercises. In doing so, the Sciarrotta court noted that although it had geographically restricted the scope of the limited duty rule in Maisonave v. Newark Bears Professional Baseball Club, Inc., supra, 185 N.J. 70, that restriction was rejected by the Legislature in the New Jersey Baseball Spectator Safety Act of 2006, which also defined a professional baseball game as including pre-game activities. See id., 356-58. Therefore, the court saw no reason to restrict the scope of the limited duty rule solely to the temporal limits of the game itself and ultimately held that the limited duty rule applied to all activities on the field of play, including pre-game warm-ups. See id., 356. The court concluded that if a sports venue owner or operator complied with the limited duty rule, it satisfied its duty of care to patrons in the stands and no action in negligence would lie for the peril of objects leaving the field of play. See id., 358. Furthermore, the limited duty rule did not impose a separate duty to warn of the risk of objects leaving the field of play. See id., 358-60.
Judge Cosgrove agreed with the reasoning set forth in Maisonave and found that the limited duty rule to only apply to injuries occurring in the stands. Mantovani v. Yale University, supra, 44 Conn. L. Rptr. 16. The court denied summary judgment given that the plaintiff was in a section of the stadium operated by the defendant that encouraged the plaintiff to engage in activities inconsistent with paying close attention to the action on the field. Moreover, the court determined that there existed a genuine issue of material fact as to whether risk of foul ball into right field pavilion area was an open and obvious danger. See id., 16-17.
As a Connecticut court has not yet applied the limited duty rule to plaintiffs injured at hockey games, the court will look to other jurisdictions. The majority of American jurisdictions have declined to impose liability on a stadium for spectator injuries, whether it be during a baseball or hockey game. The court is less interested in other jurisdictions' differentiation between baseball and hockey, given that very few make such a differentiation. Of greater importance to the court's analysis are other jurisdictions' rationales for barring spectators' claims.
New Mexico, for example, is one of the few states that has declined to adopt the rule. See e.g., Crespin v. Albuquerque Baseball Club, LLC, 2009-NMCA-105, 216 P.3d 827 (N.M.Ct.App. 2009).
In Sciarrotta v. Global Spectrum, supra, 194 N.J. at 358, the court saw "[n]o reason sufficient to . . . adopt a different definition for the scope of the limited duty in respect [to] professional ice hockey games . . ."
Some jurisdictions have opted for adoption of the limited duty rule for the policy reasons articulated by the Teixiera court. See e.g., Sciarrotta v. Global Spectrum, 194 N.J. 345, 355-58, 944 A.2d 630 (2008); Turner v. Mandalay Sports Entertainment, LLC, 124 Nev. Adv. Rep. 20, 180 P.3d 1172, 1175-76 (Nev. 2008); Pakett v. The Phillies L.P., 871 A.2d 304, 307-09 (Pa. Commw. Ct. 2005); Benejam v. Detroit Tigers, Inc., supra, 246 Mich.App. at 651-53; Stern v. Madison Square Garden Corp., 226 A.D.2d 444, 445, 641 N.Y.S.2d 41 (N.Y.App.Div. 1996); Lawson v. Salt Lake Trappers, Inc., 268 Utah Adv. 11, 901 P.2d 1013, 1015 (Utah 1995); Arnold v. Cedar Rapids, 443 N.W.2d 332, 333-34 (Iowa 1989); Erickson v. Lexington Baseball Club, 233 N.C. 627, 629, 65 S.E.2d 140 (N.C. 1951).
Other jurisdictions have adopted the limited duty rule by relying upon other negligence theories including assumption of the risk and contributory negligence. See e.g., Costa v. Boston Red Sox Baseball Club, 61 Mass.App.Ct. 299, 302-04, 809 N.E.2d 1090, appeal denied, 442 Mass. 1106, 812 N.E.2d 922 (2004); Petrongola v. Comcast-Spectacor, L.P., 789 A.2d 204 (Pa.Super. 2001), appeal denied 569 Pa. 694, CT Page 7304 803 A.2d 736 (2002); Moulas v. PBC Productions, Inc., 213 Wis.2d 406, 418-20, 570 N.W.2d 739 (Wis.Ct.App. 1997), aff'd, 217 Wis.2d 449, 576 N.W.2d 929 (Wis. 1998); Kennedy v. Providence Hockey Club, 119 R.I. 70, 77-78, 376 A.2d 329 (R.I. 1977); Hunt v. Thomasville Baseball Co., 80 Ga.App. 572, 573-75, 56 S.E.2d 828 (Ga.Ct.App. 1949); Quinn v. Recreation Park Assn., 3 Cal.2d 725, 729-31, 46 P.2d 144 (Cal. 1935); Brisson v. Minneapolis Baseball Athletic Assn., 185 Minn. 507, 509-10, 240 N.W. 903 (Minn. 1932); Lorino v. New Orleans Baseball Amusement Co., 16 La.App. 95, 133 So. 408, 409 (La.Ct.App. 1931); Crane v. Kansas City Baseball Exhibition Co., 168 Mo.App. 301, 303-05, 153 S.W. 1076 (Mo.Ct.App. 1913).
In present case, there is no general issue of material fact as to the following. The defendant's hockey rink is encircled with protective dasherboards for the players. See #121, Exhibit A, Affidavit of Cliff Lydiksen, ¶ 5. On top of the dasherboards, there is plexiglass for the protection of the fans. See id. The dasherboards are forty-two inches in height and the protective tempered plexiglass runs along both sides of the rink for 145 feet and are six feet high above the dasherboard. See id., ¶ 6. Behind the goals, the plexiglass is eight feet high, running 118 feet around. See id. In addition, there is netting over the seats located at either end of the rink, behind the goals, which extends up another fifteen feet and encompasses the corners of the rink. See id., ¶ 7. The dasherboards, plexiglass and netting were installed pursuant to American Hockey League standards on October 23, 2005, the date of the plaintiff's injury. See id., ¶¶ 6, 8. The plaintiff was not seated in the area behind the goals, but rather in a section located on the side of the rink. See Exhibit C, Deposition of Marga Verneris. From her seat, the plaintiff could see the Sound Tigers' bench across the ice. See Exhibit F, Deposition of Marga Verneris.
The defendant presented the following evidence in support of its motion, while the plaintiff has failed to present any evidence in opposition. It is well established that in a motion for summary judgment, "[o]nce the moving party has met its burden [as to the non-existence of any genuine issue of material fact] . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. 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.) Zielinski v. Kotsoris, 279 Conn. 312, 319, 901 A.2d 1207 (2006).
Additionally, the back of the tickets has the following disclaimer: "WARNING: PUCKS, HOCKEY STICKS, BALLS, BATS, RACQUETS AND OTHER FLYING OBJECTS FLYING INTO SPECTATOR AREA CAN CAUSE SERIOUS INJURY. BE ALERT AT ALL TIMES WHEN IN SPECTATOR AREAS . . ." See Exhibit A, Affidavit of Cliff Lydiksen, ¶ 10. The defendant attached a copy of the ticket, dated October 23, 2005. See Attachment to Exhibit A. The court notes that in addition to the disclaimer described above, the ticket also states, in bigger, bolder writing: "WARNING: PUCKS FLYING INTO SPECTATOR AREA CAN CAUSE SERIOUS INJURY. BE ALERT AT ALL TIMES, INCLUDING AFTER STOPPAGE OF PLAY." See id. Furthermore, before every game a warning is read over the public announcement system, which states: "Please be aware that safety netting has been provided for your protection however hockey pucks tend to leave the playing area. To avoid potential injury, please stay alert at all times throughout tonight's game." See Exhibit A, Affidavit of Cliff Lydiksen, ¶ 11. The plaintiff was injured during the last few minutes of the hockey game. See Exhibit H, Deposition of Marga Verneris.
The court notes that adoption of the limited duty rule is not always predicated upon the legal doctrine of assumption of the risk, although some states have relied upon that doctrine in barring sports venues' liability to injured spectators. It is well established that in Connecticut, assumption of the risk has been abolished legislatively with respect to negligence actions pursuant to General Statutes § 52-572h(1), which states: "The legal doctrines of last clear chance and assumption of risk in actions to which this section is applicable are abolished." Neither the Teixiera court nor the Mantovani court relied on the doctrine of assumption of the risk in reaching their decisions.
Assumption of the risk only applies to skiing. See General Statutes § 29-212.
Furthermore, even if the court were to adopt the rule applied by the Mantovani court, the plaintiff's claim would be barred because she was injured while sitting in her seat during the hockey game. Given that the majority of American jurisdictions subscribe to the limited duty rule and that the rule need not be predicated on the legal doctrine of assumption of the risk, the court adopts the rule. As such, the defendant is entitled to judgment as a matter of law as there is no genuine issue of material fact that: it met its limited duty to protect spectators by placing a higher wall of plexiglass and protective netting over the most dangerous area of the stadium, the area behind the goals; the possibility that the plaintiff could be struck by a hockey puck during the game was an open and obvious danger; and the defendant adequately warned the plaintiff of the danger of errant pucks through disclaimers on the ticket and an announcement over the public announcement system.
There is ample case law from other jurisdictions to support this court's conclusion that spectator seating directly behind the goals is generally is considered to be the most dangerous spectator area in a hockey rink. See e.g., Schneider v. American Hockey Ice Skating Center, Inc., 342 N.J.Super. 527, 535, 777 A.2d 380, cert. denied, 170 N.J. 387, 788 A.2d 772 (2001).
For all of the foregoing reasons, the defendant's motion for summary judgment is hereby granted.