Haymon v Pettit, 2007 NY Slip Op 00943, arises from an interesting set of facts. The defendant owned and operated a stadium and had a policy in which two free tickets to a baseball game were given to anyone that returned a foul ball. The plaintiff in this case was a mother who brought suit on behalf of her son, a young boy that had been standing outside the stadium waiting for foul balls and was hit by a vehicle when he ran into the street after a foul ball.
The Fourth Department concluded that the defendant owed no duty to the injured boy:
Defendant, as an adjoining landowner, owed no legal duty to plaintiff's son under the circumstances of this case... Although it may have been foreseeable that a person would run into the street to pursue a foul ball, it is well established that foreseeability of harm does not define duty... (Internal citations and quotations omitted)
The dissenting justices disagreed stating that:
(W)e conclude that defendant Auburn Community Non-Profit Baseball Association, Inc. played a significant role in creating the danger that resulted in the injuries to plaintiff's son by providing an incentive for retrieving and returning foul balls hit out of the stadium onto a public street...
It's a thorny issue and one that is not easily determined. Exactly what is foreseeable and how does foreseeability relate to duty?
It's always instructive in cases involving foreseeability to re-visit the landmark decision Palsgraf v. Long Island R.R. Co., 248 NY 339, 162 N.E. 99 (1928). The following language from that decision tends to make me side with the dissent:
The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension...This does not mean, of course, that one who launches a destructive force is always relieved of liability if the force, though known to be destructive, pursues an unexpected path. "It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye"...
In this case, the possibility of an accident should have been clear to the defendant. The risk of a child running into the street after a foul ball was reasonably perceived and thus a duty to the child was readily apparent. At least, that's the way I see it.
But, as we all know, reasonable minds can differ. Foreseeability, like reasonableness, is in the eye of the beholder and you never really know where the court will fall on this issue. I don't think that the Fourth Department was necessarily wrong on this one--I just tend to agree with the dissent.