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Thursday, September 03, 2009
You now assume the risk of players “horsing around” at the ballparkFollowing up on the discussion of fan injuries a couple of weeks ago comes a new ruling -- from New York -- holding that the fan's assumption of the risk at a ballpark extends to assuming the risk that they might get hit by a flying bat while a player is screwing around during warmups:
"Plaintiff asserts that the authority cited by movant supports the mere proposition that a spectator assumes only commonplace risks -- such as, the risk of a loose bat or ball reaching the stands during the game or batting practice -- associated with attending a baseball game. Plaintiff argues that, here, in contrast, it was not commonplace for the subject player to horse around with the subject bat during no organized batting activity, either during the game or practice beforehand . . . The contention that summary judgment should be denied because the subject player was 'horsing around' and not engaged in batting practice when the subject bat became loose implies that primary assumption of risk applies only during certain distinct times while attending a baseball game. This implication is false."
So basically, the Philly Pfanatic can juggle flaming chainsaws, and you're gonna just have to watch your ass, dudes.
(thanks to Jack Marshall for the heads up)
Posted by Craig Calcaterra at 1:57pm
Steve Stein said...
“the Philly Pfanatic can juggle flaming chainsaws, and you’re gonna just have to watch your ass”
Well, that’s what the back of MY ticket says. The bar is set low for legal disclaimers these days.
Posted 09/03 at 02:40 PM
I just checked my ticket for tonight’s AAA game, and it says “The holder of this ticket voluntarily assumes all risk and danger incidental to the game of baseball ... for which this ticket is used whether occurring prior to, during, or subsequent to the actual playing of the game including specifically (but not exclusively) the danger of getting injured by thrown bats, thrown balls, batted balls, or other objects or by others in attendance….”
Unfortunately that seems to cover everything up to and including flaming chainsaws.
Posted 09/03 at 03:48 PM
Don’t think the waiver on the back of the ticket really has much value. The waiver didn’t protect the player/team, but, instead, the defense of A/O/R did. The odd part of the decision is that the trial judge granted the MSJ against the bat-wielding (or not, as the case may be) player & team. The case against the team/stadium is still on going. Further, since this is a New York state Supreme Court judge (gen’l trial level), it would be far too early to conclude how far the A/O/R defense really extends.
Oddly, there is quite a bit of law on injuries occurring while at various stadia. This law includes injuries caused by mascot molestation, as it were. For example, courts in NJ have found liability when a batted ball struck a customer waiting in line at an open concession area, i.e. A/O/R and ticket waiver were irrelevant.
Frankly, I don’t know why you’d even name the team or player unless part of your allegations was intentional conduct. From the article, it seems like an intentional tort may have been raised… good freakin’ luck proving that one!
Posted 09/03 at 04:39 PM
Would someone be kind enough to translate the RJK comment into plain English? I know AOL and MSG, but not A/O/R and MSJ.
Posted 09/03 at 08:32 PM
Craig Calcaterra said...
A/O/R = Assumption of (the) Risk
MSJ: Motion for Summary Judgment. For our purposes, just know that means the stage of the case (as in this case) where one party attempts to win on purely legal arguments—as opposed to factual presentations—on paper, decided by the judge. If a party wins at MSJ stage, there is no trial. If a party is unsuccessful in their MSJ, the case does not end, but proceeds to trial.
Well, usually. It’s can complicated.
Posted 09/03 at 08:42 PM
Gerry- Yeah, sorry about that. A/O/R is really just my abbreviation for assumption of the risk. It’s basically a defense to premises liability cases. Essentially, the plaintiff claims you (defendant) did something or had something dangerous that harmed me. The defendant answers, no pal you knew there was a chance you could get hurt, therefore no liability.
Craig is right with the MSJ. Essentially one party claims that for purely legal reasons, there is no way that the other party can win. Frankly, it’s kind of hard to win an MSJ… unless the judge REALLY doesn’t want to try the case!
There are some pretty interesting cases with some strange fan and mascot injuries. If interested, the cases are now pretty easy to find with a google search or findlaw.com.
Posted 09/03 at 09:42 PM
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