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February 06, 2007

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Ken

I can see where you're going with the Palsgraf language, but NY remains a "duty" state, unlike NJ, for instance, which is a foreseeability state. Thus, before you analyze whether the injury was foreseeable, you have to first establish that the defendant had a duty toward the plaintiff. It seems to me that's what the majority was saying in Haymon. The dissent on the other hand seems to be saying anytime you find the risk foreseeable - a duty arises. If you turn it around the other way, i.e., foreseeability first, you end up with an indeterminate class of potential plaintiff, because after all - in hindsight, you can always say it was foreseeable that this accident would happen. Check out Holdampf v. A.C.& S, 5 NY3d 486, and In re 8th Judicial District Asbestos Litigation (Rindfleisch), 13 Misc3d 936.
I think the Fourth Department's decision is correct on the law - what duty does the stadium owner have to pedestrians outside of it's boundries of its premises? Though I can see the argument that the stadium "created" the risk - or in premises liability terms - the defective condition, I think NY law still says if you don't control the premises - you can't be held to a duty.
Anyways, those are my thoughts.

NBlack

Ken--

I appreciate your position, but in my opinion, it's not a case of landowner liability. The liability and duty arises from the D's sponsorhip of a "contest", if you will, which resulted in this child's injuries. In other words, by holding a contest wherein free tickets were handed out in exchange for the return of a foul ball, the D set in motion the events that lead to this child's injuries.

This ALR article summarizes what I believe is the applicable theory of liability: Liability for personal injury or death allegedly resulting from television or radio broadcast-- 20 A.L.R.4th 327.

And, this California case includes language that summarizes my arugment: Weirum v. RKO General, Inc. (1975) 15 C3d 40 ( http://online.ceb.com/CalCases/C3/15C3d40.htm )

From that decision:

"A rock radio station with an extensive teenage audience conducted a contest which rewarded the first contestant to locate a peripatetic disc jockey. Two minors driving in separate automobiles attempted to follow the disc jockey's automobile to its next stop. In the course of their pursuit, one of the minors negligently forced a car off the highway, killing its sole occupant. In a suit filed by the surviving wife and children of the decedent, the jury rendered a verdict against the radio station...

While duty is a question of law, foreseeability is a question of fact for the jury. (Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277 [40 Cal.Rptr. 812].) [2] The verdict in plaintiffs' favor here necessarily embraced a finding that decedent was exposed to a foreseeable risk of harm. It is elementary that our review of this finding is limited to the determination whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury.

We conclude that the record amply supports the finding of foreseeability. These tragic events unfolded in the middle of a Los Angeles summer, a time when young people were free from the constraints of school and responsive to relief from vacation tedium. {Page 15 Cal.3d 47} Seeking to attract new listeners, KHJ devised an "exciting" promotion. Money and a small measure of momentary notoriety awaited the swiftest response. It was foreseeable that defendant's youthful listeners, finding the prize had eluded them at one location, would race to arrive first at the next site and in their haste would disregard the demands of highway safety...Here, reckless conduct by youthful contestants, stimulated by defendant's broadcast, constituted the hazard to which decedent was exposed."

I did a quick search of NY law and wasn't able to find anything directly on point, but nevertheless this case , albeit a Californiacase, summarizes my position quite nicely.

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