Happy Thanksgiving!
Define That Term #258

New York Court of Appeals: You're out!

Gavel2_2 Last February I posted about a Fourth Department decision that raised interesting issues regarding foreseeability and duty of care.  The Fourth Department's decision was appealed and last week, the New York Court of Appeals issued its decision in Haymon v Pettit, 2007 NY Slip Op 09071.

In Haymon, 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 child.  I, on the other hand, found myself agreeing with the dissent and explained that:

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.

Lo and behold, reasonable minds can differ, as evidenced by the New York Court of Appeal's holding in this case.  The court upheld the Fourth Department's decision and concluded that no duty existed:

The Court is mindful that, in this case — unlike Darby — the Ball Club rewarded participants of its promotion with tickets. Important to our resolution, however, is that under the circumstances of this case, like Darby, there are inherent risks associated with crossing the street. Those risks are multiplied when doing so indiscriminately. Moreover, we do not view the Ball Club's promotion as contributing to a dangerous condition, for it only rewarded the retrieval of foul balls. We must assume that adults, and children of Leonard's age, will act prudently in doing so...

Under these circumstances, it is difficult to imagine what steps the stadium operator could have taken that would have sufficed to meet a duty. Thus, we are constrained from imposing a requirement that the stadium exercise control over non-patron, third persons outside its premises over whom it has no actual authority to do so.

After reading this decision, I'm all the more convinced that my original instinct was correct.

To assume that children will act prudently when attempting to win a prize is one heck of an assumption.  Kids are prone to imprudent behavior under normal conditions, but when excited and caught up in the moment, tend to throw all caution to the wind.  Any adult who has ever been around children knows this to be true. 

Likewise, the defendants should have foreseen that given that the stadium was situated near a busy street and that balls were frequently hit out of that stadium, people, especially young children, could easily be injured when excitedly chasing after a rapidly moving foul ball near a busy road.

That being said, the lone footnote in this case makes me wonder if this case is an example of bad facts leading to bad law:

Footnote 1: There is scant evidence in the record on this motion for summary judgment indicating whether or not Leonard even engaged in this activity for the purpose of receiving free tickets pursuant to the Ball Club's promotion. Leonard's sister testified that he left the house to go to the stadium, that he had money but "didn't want to spend it," and that he did not have a ticket but that "he had his glove with him" to try "to catch a [foul] ball." The sister added that Leonard "saved baseballs." Even viewing the evidence in a light most favorable to the non-moving party and giving the non-moving party the benefit of all reasonable inferences which can be drawn from the evidence (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96 [2006]), it is unclear whether plaintiff has succeeded in raising an issue of fact. Nevertheless, this becomes academic in light of our holding.

Call me cynical...I won't be offended.


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