Define That Term #185
Wednesday's New York Legal News Round Up

Fourth Department Considers Intersection of Foreseeability and Duty

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.


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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.



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 ( )

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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