Maisonave v. Newark Bears Professional Baseball Club, Inc.

881 A.2d 700 DRANOV, IN THE MATTER OF ALEXANDER B. AN ATTORNEY (ATTORNEY 011951986). AT LAW NO. August 19, 2005. ORDER having duly Court, This matter been presented to the it is LEE, ORDERED that ALEXANDER B. DRANOV of FORT 1986, who was admitted to bar of this State in who has suspended 22, practice been from the May of law since pursuant April 26, 2004, May 12, Orders of the Court filed law, practice immediately. be restored to the effective MAISONAVE, WIFE, LOUIS MAISONAVE AND MYRNA HIS PLAINTIFFS-RESPONDENTS, THE v. NEWARK BEARS PRO- CLUB, FESSIONAL BASEBALL AND INC. GOURMET DINING SERVICES, DEFENDANTS-APPELLANTS, AND ABC CORP. (NAME FICTITIOUS) (NAME BEING AND JOHN DOE BEING FICTITIOUS), DEFENDANTS. Argued February Decided September 2005. Dining appellant for Gourmet argued the cause James J. Horan (Mautone Horan, attorneys). & Services appellant New- Schipske argued the cause

Timothy J. Henderson, (Rawle Club, Inc. & Baseball Professional ark Bears attorneys). (Kessler; respondents argued the cause for

Frank DiGiovanni Jesuele, attorneys). & DiGiovanni opinion of the Court. ZAZZALI delivered Justice Elysian game place at the took baseball The first recorded Koppett’s 19,1846. Koppett, Leonard on June Fields in Hoboken (2004). then, Since League Baseball 7 History Major Concise of identity American integral part of our an game has become Will, emerged ever-expanding George and has F. as an business. (1999) (“The business, so, Bunts business of of America course, Kuhn, pastime.”); is the national see also Flood v. 2099, 2112, (1972) U.S. S.Ct. 32 L.Ed.2d (“Professional engaged baseball is a business and is in interstate commerce.”). 2001, eight league 1994 and minor Between stadi- Jersey opened in increasing ums New alone. As an number competitive games, flock to citizens baseball we confront difficult questions liability. of tort

Here, plaintiff a foul purchased ball struck in the face as he beverage vending from a cart on the mobile concourse of minor league Appellate stadium. The Division reversed the trial court’s grant summary judgment in favor of stadium owners and operators, holding the trial finding that court erred in defen- had not dants violated their of care as a matter law. survey In appeal, this we the law has concern evolved ing liability operator owner and and examine the boundaries of the so, doing rule. we must accommodate the inter both duty rule, ests of fans and owners. We hold that the limited owners, liability which restricts applies the tort in situations injury However, an public policy where occurs the stands. require application negligence principles fairness of traditional stadium, including, to, all other areas of the but not limited concourses and mezzanine areas.

I. injury Plaintiff Louis Maisonave suffered a facial a foul when eye ball struck him in he stood the mezzanine at Stadium, league team, Riverfront field home of minor The open walking exposed Newark Bears. mezzanine is an area on one side to beverages the baseball field. sell food Vendors level, on that and restrooms are located there. At the time incident, vending the stadium used movable carts for the sale of beverages yet because construction of the stadium had not been completed, and operational. the built-in concession were not stands third base along first and both the mezzanine carts dotted the The with vendors stood mezzanine. The of the on the field-side lines faced it. patrons the while to the diamond their backs railing on the first at a Plaintiff, the action had watched who vending field, to the closest 100 feet the walked about side of base plate and home seating area behind Netting protects the cart. beverage base lines. down both for some distance extends line, beyond but the first base patronized was on plaintiff cart statement, Maisonave In a written of the net. protection incident: before the the moments described netting From the or where it ended. was aware of where the I wasn’t consciously I was aware vending I had not watched cart, actually field; time I reached the to see the being I wasn’t able game reaction, the crowd but was played field thinking beverage about ____Standing I was hit I was not cart before at the anything to me coming could think happen at me. I didn’t of a foul ball possibility there. added.) (Emphasis ] [ incident: deposition, plaintiff described At his trying to doing during minutes? Were you that five or ten you What were Q. game? watch talking some on line. I with No, people A. was move? And did the vendors Q. said look when they because sideways I know ducked kind A. the vendor Well, coming. moving thing and the ball out of the way I saw was her last out, the did words, In other to that moment? this ball You were not aware previous Q. swing batter see the at the batter? Did you throw the ball see the pitcher you ball? A. No. the bat? see the ball leave Did Q. you nothing. Nothing,

A. added.) (Emphasis ] [ eye, causing numerous right plaintiff in the struck The batted ball eye, drooping in the area of numbness persistent fractures sinuses, scarring. his eye, problems with of the Profes- Bears The Newark negligence, plaintiff sued Alleging from Inc., Club, Riverfront Stadium which leases sional Baseball County Authority, Improvement the Essex and defendant Gour Services, beverage Dining provides met which food and services to granted summary court judgment Riverfront Stadium. The trial defendants, they in favor of that finding had not breached their duty conclusion, reaching In care. the trial court relied on Center, Inc., Hockey & Skating Schneider v. American Ice 342 527, 533-34, denied, N.J.Super. (App.Div.), 777 380 A.2d 170 certif. (2001), two-pronged N.J. A.2d 772 duty 788 which set forth a operators: of care for stadium owners and seating must for [F]irst, “sufficient those operator provide protected spectators who to desire reasonably be seats an may protected anticipated ordinary and must occasion,” second, operator provide protection spectators “the dangerous most section” of the stands. The second of this limited component duty providing be satisfied screened seats behind ordinarily may by home operator goals in baseball and behind the plate hockey. (Citations omitted.) [ ] provision The trial court reasoned vending that the of “at least two plate carts close to home the screening, plaintiff and behind which utilized,” could have not established defendants had breached and, duty plaintiff therefore, their limited not were liable to plaintiff as a matter of law. Appellate Division reversed remanded. Maisonave v. Bears, Services,

Newark Gourmet 371 N.J.Super. (2004). Schneider, A.2d Citing panel agreed that “the operators facility sports duty of a commercial owe a limited (citations spectators.” Id. at A. 2d 233 and internal omitted). quotation However, focusing marks part on the second rule, duty Appellate the Schneider limited Division stated: [of When we said that the ] second Schneider be satisfied component “may providing operator screened seats behind home plate behind the goals in our identification of those locations was not hockeyf,]” intended to be exhaustive nor immutable. measure “the of that is ‘due care Rather, under all ” the circumstances.’ (citations omitted).] [Ibid, granted separate We certification on applications of defen (2004). dants. A .2d 846 For the reasons below, modify discussed we affirm Appel the decision of the late Division. liability, tort general principles of analysis, consider

In our we application to commer- and its including invitee rule the business an Next, rule as the limited we examine cial establishments. rule, application in origins, its its exception to the business invitee about the rule. Jersey jurisdictions, and concerns and other New rule, adopt whether we should then determine We and to other so, apply to the stands it should and if to what extent of the stadium. areas

II. A. Realtors, we held that & Lazo Hopkins v. Fox any guard against care to of reasonable “owe[s] landowner property that the owner either on his or her dangerous conditions 132 N.J. 625 have discovered.” knows about or should Cox, 95, (1993) A.2d (citing v. 187 Handleman A.2d 1110 (1969)). (Second) § This is (1963); Torts 343 Restatement 708 enterprises and generally applied to business of care the standard specific rule unless a more governing standard is the default rule, Appellate our Although applied it the limited applies. a commer operator of recognized in Schneider that “the Division business, any operator of other facility, like the cial recreational safety of its care for the general duty to reasonable exercise has 534, A.2d 380. N.J.Super. at 777 patrons.” 342

B. negligence standard that specialized rule is a The limited early days operators since protected owners and has stadium City Kansas example, in v. For Crane of modern baseball. 1076, 301, Co., 1078 Mo.App. 153 S.W. 168 Baseball & Exhibition protected operators must offer (1913), that stadium the court held unprotected an seat spectator chose seating and that a who areas Ass’n, Quinn Park negligent. In v. Recreation contributorily was 144, (1935), held that “[t]he the court 46 P.2d 3 Cal.2d duty imposed by performed law is when screened seats are provided many may reasonably expected for as be to call for (Citations omitted.) ordinary any them occasion.” Since the early century, twentieth courts “one of have held that the natural by spectators attending games risks professional assumed is that being by struck batted thrown balls.” Ibid. Even a brief early many review of several baseball cases that reveals courts rule, it, adopted or a version of based their decisions on danger two facts: that knowledge errant balls was common sitting spectators and that in unscreened seats assumed the risk of injury. See, e.g., Minneapolis Brisson v. Baseball & Athletic Ass’n, (1932); 185 Minn. v. N.W. Seattle Kavafian (1919). Ass’n, Thus, Baseball Club Wash. 181 P. 679 fact-specific injuries rule establishes a standard of care for caused by errant accounting open balls at baseball stadiums for the pose obvious nature the risk that balls batted to fans. Schneider, Appellate our supra, Division endorsed the limit- rule, ed explaining operators “provide that stadium must protected seating spectators may sufficient for those who be reasonably anticipated protected to desire ordinary seats on an (internal N.J.Super. occasion.” 342 quotation omitted). Additionally, marks and operators citation stadium “provide protection spectators must for dangerous in the most Ibid, (internal section of the quotation stands.” marks and cita- omitted). tion

C. scope operators the owners and of baseball patrons question stadiums impression owe their is a of first However, this Court. about previously one-half of the states have addressed this Our issue.1 research reveals that eleven of those 1 generally Rigelhaupt, See Jr., Annotation, James L. Liability Spectator Injured Baseball Game Who or Is Hit as Result Other by Game, 91 Hazards (1979) (electronically 2005). A.L.R.3d 24 as of updated

79 jurisdictions duty adopted have rule.2 Some states applied adopted have not the rule and instead have baseball- specific Finally, applied statutes.3 some courts have traditional negligence principles, compar such as the business invitee rule or negligence.4 ative gainsaying

There is no that the limited rule has its Many adopt advocates. “believe to be the better rule and [it] by definition of the owed an owner of a field to [that] Akins v. Glens screening spectators.” provide protective for its Dist., 325, 644, City Falls Sch. 53 N.Y.2d 441 N.Y.S.2d 424 N.E.2d Inc., (1981); Trappers, see also Lawson Lake 531, v. Salt 901 533 (Utah 1995) (“The 1013, duty] P.2d 1015 that [limited rule insures spectators desiring protection from balls those foul will be accom- 2 jurisdictions following explicitly adopted have the limited rule: 793, (Rudnick v. California 156 202 Broadcasters, Golden W. Cal.App.3d Cal.Rptr. (1984)); (Iowa 1989)); (Arnold v. 900 Iowa 443 N.W.2d 332 Cedar City Rapids, 95, (Lorino 16 133 Louisiana Co., v. New Orleans Baseball & Amusement La.App. (1931)); 645, Michigan (Benejam Tigers, Inc., So. 408 246 Mich.App. v. Detroit (2001)); (Brisson 635 N.W.2d 219 Minnesota v. Baseball & Athletic Minneapolis 507, (1932)); (Anderson 240 Ass’n, 185 Minn. N.W. 903 Missouri v. Kansas City (Mo.1950)); (Akins 231 S.W.2d 170 New York Club, Baseball v. Glens Falls City 325, 644, (1981)); 53 N.Y.2d 441 N.Y.S.2d 424 NE.2d 531 North Dist., Sch. 64, (1939)); (Cates 215 N.C. S.E.2d 131 Carolina 1 Co., v. Cincinnati Exhibition 175, (1925)); (Cincinnati 112 Ohio St. 147 N.E. 86 Ohio Eno, Baseball Club Co. v. (Friedman (Tex.App.1987)); S.W.2d 572 Utah Texas 731 Ass'n, v. Houston Sports (Utah 1995)). (Lawson 901 P.2d 1013 Inc., v. Salt Lake Trappers, 1993, 3 Spectator Safety § See Colorado Baseball Act of 13-21- Colo.Rev.Stat. Act, (1993); (1992). Facility Liability 120 Baseball III. Stat. 38/1-49 Comp. 1116, (Fla.Dist.Ct.App. e.g., 514 So.2d 4 See, Broxson, Milton v. City of 1987) (holding "liability law must be determined common standards invitees"); governing ... landowners Arizona, v. Bellezzo Ariz. 847, "[bjecause (Ct.App.1993) (holding [plaintiff] 851 P.2d was an invitee, applicable obligated appellees standard of care to discover and warn harm"); against protect ... Mgmt. unreasonable risk of Jones v. Three Rivers (1978) (discussed below). 483 Pa. 394 A.2d further in Part IV See Corp., 809 N.E.2d Club, also v. Boston Red Sox Baseball Costa Mass.App.Ct. (2004) (holding only duty dangers 1092-93 is warn unreasonable balls). which do not include foul dangerous modated and that seats the most area of the stadium time, recognizes will be safe. At the same [it] baseball tradition spectator preference requiring not owners to screen the (internal omitted)). stadium.” entire citations said, example, That there are concerns about the rule. For Judge Appeals Chief Cooke of the New York Court of has describing troubling aspects, identified its the standard as judicial making an unfortunate exercise in an area that left to should be jury. This to what of a baseball attempt precisely prescribe steps proprietor field must take to fulfill its of reasonable care is unwarranted and unwise injured This rule of law to denies as the old recovery spectators effectively negligence doctrines of the risk and ever and uses assumption contributory did, a similar rationale do so. fundamentally (Cooke, [Akins, dissenting).] 441 N.Y.S.2d supra, N.E.2d at C.J., puck In thirteen-year-old when an errant struck and killed girl attending Hockey League Ohio, game National the media safety hockey intensified its focus on issues in both arenas and Fan, Taylor, Phil Sports baseball stadiums. See Death aof Illustrated, 1, 2002, 59; Politi, Apr. at Spotlight Safety Steve Death, (Newark, N.J.), 21, 2002, Star-Ledger Fan Mar. After time, 33. Since that some critics have described the limited anachronistic,” Horton, Note, “hopelessly rule as David Rethink- ing Assumption Sports Spectators, the Risk and 51 UCLA (2003), L.Rev. and have noted that “stadium owners are legal responsibility they so insulated from are under ‘little ” pressure fans,’ protection to add more (quoting id. at 344-45 Politi, supra).

III. commentary With the above case law backdrop, as a we stadiums, consider whether the limited rule should and, specifically, doing more to the stands. so we are mindful care, “[Recognition ultimately, of a rests on consider public policy ations of and on notions of fairness.” Crawn v. (1994). Campo, 136 N.J. 643A .2d600 “[wjhile observed, Appellate aptly As watching Division game, area, standing unprotected spectators either seated or in an reasonably may expected pay be attention and to look out for Maisonave, safety.” supra, their own N.J.Super. 371 at game A.2d 233. It is the well-understood nature of the Indeed, batted thrown baseballs can land in the stands. “most spectators prefer they to sit where can have an unobstructed view game willing of the expose are to to themselves the risks Schneider, posed flying ... supra, balls to obtain that view.” N.J.Super. Moreover, A professional .2d 380. unique sport actively baseball is a engage because fans in the game by trying to catch foul greet out-of-play balls. Fans often they seats, baseballs with cheers as dive over walls and rows of limb, risking life and triumphantly claiming for the thrill of errant ball.

Although criticism, it has drawn prepared say we are not to passed. the rule’s time has come and It would be unfair to operators injuries hold owners and spectators liable for to in the inherent, potential danger fly stands when the balls is an expected, part and even desired experience. of the baseball fan’s Moreover, operators owners and would hardship face undue if guarantee protection forced for all in fans the stands from every fly fairly bah. Because the limited balances the practical operators and economic interests of owners and with the safety fans, adopt entertainment interests of the we Schneider, Appellate opinion Division’s to the extent that it operators holds that owners and protected must offer sufficient seating to ordinary those who would seek it on an basis and to provide screening dangerous in the most sections of the stands.

In clarity, the interest of we note that the term “stands” includes the stairs that fans ascend and descend access their Similarly, immediately adjacent seats the stands. areas to the designated “standing only,” solely stands room and dedicated viewing game, purview fall within the of the limited rule. contrast, areas, In multi-purpose play- such as concourses and rule, areas, scope of as discussed

ground are outside the below. Appellate recognized opin in its

Finally, as the Division below, operator’s of the is “due care under ion the measure Jersey’s interpretation of the circumstances” under New all the Ibid, (internal quotation and citations rule. marks omitted). operators—who in the expect owners and are best We position to determine which areas of the stadium are indeed steps dangerous—to identify preventive most those areas take safety example, For con to ensure fan to a reasonable extent. many areas of the stadium because baseballs cerns arise hit into the unscreened seats are faster than those balls hit behind actually directly straight hit hit with the screened home balls back are plate area____Traditionally, coming which takes some of ball, the bat underneath the off the speed. (most lines) right line drive fouls down the foul are contrast, normally frequently higher at a down the line and into the stands. hit and send the ball flush, velocity ‘Fair’ or [Gil ‘Foul’?, Baseball Risk: Is It Fried, Spectators’ Assumption of (2002) (internal omitted).] L.Rev. citation 39, 58 Marq. Sports Thus, operators reassess whether there is a owners and must protected seating of available “in the ‘most sufficient amount reasonably dangerous’ might expect that to locations for those such seats.” Ibid. obtain

IV. apply rule should We now must decide whether the limited analysis, than To our examine to areas other the stands. assist we law, fairness, developing principles the of and related consider- Crawn, 503, supra, (“Recog- at 643 A.2d ations. See care, ultimately, nition of rests on considerations of of fairness.”). public policy and on notions of

A. above, jurisdictions, applied as common law Some noted have rule, litigation principles, rather than the limited to resolve injured in and between fans the stands and stadium owners Pennsylvania only jurisdiction operators. appears It is the factually injury that has the distinct addressed issue of an to a patron of in an area the stadium than other the stands. Jones Management Corp., v. Three Rivers 483 Pa.

(1978), plaintiff injured by was a batted ball she walked along playing the stadium her back concourse with to the field. Recognizing might different standard of care in the it, Supreme Pennsylvania situation before of framed Court [plaintiffs] governed issue by as “whether ease is the ‘no common, applicable frequent expected and risks ordinary may applicable rules to all other which risks be present in a baseball stadium.” Id. at 551. The court held that applying duty’ trial court had erred in the “no rule in that circumstance, at jury id. and concluded that for the “[i]t was question appellees’ negligence,” determine the id. at 553. Pennsylvania,

Like we that a recognize different standard of may care appropriate be for of the stadium outside of areas Jersey stands. held only We have that “New tolerates immunities important public relatively policy exceptional reasons of and in situations, strongly and therefore endorses a standard care Crawn, ordinary negligence.” supra, based on 136 N.J. at Thus, considering A. appropriate 2d 600. standard of stands, care for areas of the stadium than other owners, harmonizing the interests of fans “the nature of public policy ... risks[ ] considerations and fairness must inform our determination.” Id. A.2d 600.

B. Applying fairness, do, principles requires us as Crawn we that, recognize rule, sports since the birth of the baseball “both undergone Horton, and tort law have massive transformations.” supra, 51 L.Rev. UCLA at 343. While the baseball “event” has evolving, approach been law from a emptor tort has shifted caveat generally requires respon- to one that defendants to assume more sibility. consequence, “pragmatic Id. at 365. As a a there is difficulty applying sport an to a changed [in] old rule that has Thus,

tremendously seventy years.” in last Id. at 365-66. viewership years, “[s]ports significantly changed has over the but Fried, supra, yet change.” this courts have to embrace most Sports. beauty “the of common Marq. L.Rev. at 54. Because law times[,]” ibid., ability adapt to the we now consider is the requires our rule refinement. whether game suggest law and the of baseball Transformations tort Specifically, training to the limited rule. “new boundaries technologies players techniques play and have made faster and Horton, Ballparks stronger.” supra, 51 at 343-44. UCLA L.Rev. Verducci, “present sensory a now overload distractions.” Tom Illustrated, Apr. 1, 2002, Safety Squeeze, Sports 64. at The duty rule accommodate does not all of the activities that today’s players part game, nor does it take into account that are farther. can hit baseballs harder and validity of the baseball rule in the context of diminishes injuries occur other in stadium areas than the stands. Fans foreseeably understandably they guard and let down when their disengaged are in other areas of the stadium. Once fan has activity from on the him- or herself field and has left the stands, longer trying that individual is no to catch foul balls or — necessarily watching game. It fun even is all “harmless screaming wrong foul until that one ball comes at the time and in Fried, wrong place.” supra, Marq. Sports L.Rev. at 57. “[cjhildren part important The fact that and seniors an are Verducci, games, league” supra, minor underscores our concern.

Nothing game distinguishes about it from way justifies preferential other businesses treatment for injuries operators owners outside stadium that occur Indeed, stands, including the stands. areas outside of the appeal, as the concourses mezzanines such one in this sports facility any commercial is no different commer than other establishment, general negli not hesitate cial and we do virtually gence principles in all other tort situations specialized enterprises. rule business invitee to commercial As Appellate addressing appeal, Division noted this engaged [t]he are defendants a commercial venture which nature its induces guard. to let down their have concomitant to exercise spectators They during heightened

reasonable care them such protect times vulnerability. of of a ... under these circumstances is not fair but imposition only reasonable. added).] (emphasis [Maisonave, supra, N.J.Super. agree analysis height- We with and conclude that “times vulnerability” all patron ened include situations which a is no longer in the stands.

C. fairness, principles Because by implication public policy, support application concepts of traditional tort to areas outside stands, expand scope of the we will not of the baseball rule past logical borders, is, its and appropriate the stands. Cf. Crawn, supra, 136 apply N.J. at 643 A.2d 600. To to the entire stadium would convert reasonable protection immunity by virtually for eliminating owners to their foreseeable, liability preventable injuries patrons to their even longer when the are no engaged game. fans with the “The eschewing negligence wisdom such rules blanket where is Akins, supra, concerned is obvious.” 441 N.Y.S.2d (Cooke, C.J., dissenting). N.E.2d at 536 impose liability We do not strict for owners in areas outside stands; bright-line impose of the such a an rule would onerous simply on operators. burden owners and We traditional principles proper tort that the conclude standard care for rule, all other of the areas stadium the business invitee which provides that a “owe[s] landowner reasonable care to any guard against dangerous property on his her conditions that the owner either about or should discovered.” knows have Hopkins, supra, 132 N.J. at 1110. A.2d

D. law, misapplies concepts of Regrettably, basic tort dissent plaintiffs “geographic it notion that focusing as does some injured,” improper premise in post at is an location when light duty especially That of the calculus. notion is odd duty adoption “geographic of limited rule for the dissent’s aside, differences, of the entire stadium. Our rhetoric location” only scope geographic about of the area which seem to be to applies. exception general negligence an

The limited rule is to particularly, principles, application and more to the of the business standard of care in the commercial context. The dissent invitee apparently public policy prefers not to consider and fairness concepts if the result is to hold the owner of the commercial enterprise responsible negligence its it does for when not ade invitees, quately specta at of protect its business least outside But, seating by is required tor areas. the Court its common law circumstances, precedents to examine the owner’s in those parties and which able to to consider of is best bear the burden of harm within the stadium. foreseeable See Carter Inc., Lincoln-Mercury, 182, 194, Group, Inc. v. EMAR N.J. (1994) (holding relationship plaintiff 638 A.2d 1288 between tortfeasor, risk, ability opportunity of and to nature see, imposition duty); care are concerns to of exercise relevant e.g., City Corp., Bd. Educ. v. Grace W.R. of Clifton public N.J.Super. (stating interest by that cost of should be dictates defective construction borne party danger position who created and who is in better economic victim). view, to bear the loss rather than In the dissent’s clearly, public proper policy,” a decision in “either tethered law owner, post is in would relieve the stadium who the best any anywhere position protect patrons, responsibility its to premises regardless negligence. its of its business This we de cline to do.

V. rule, recapitulate, To the limited as set forth above Schneider, injuries occurring will in the stands. However, negligence, specifically traditional rules of the business rule, govern will operator liability injuries invitee owner and that occur in all other adjustment areas of the stadium. That ground appropriate rules is a fair and accommodation of the competing interests.- remand application

We this matter to the trial court for of the standard opinion we have set forth in this all proceedings future judgment Appellate this matter. The of the Division is af- firmed as modified. WALLACE, JR.,

Justice concurring. I majority opinion concur with the result in the that traditional negligence principles apply plaintiffs injury in the concourse However, a agree baseball stadium. I because with the comment duty anachronistic,” “hopelessly the limited rule is David Horton, Comment, Rethinking Assumption Sports Risk and 339, Spectators, (2003), 51 UCLA L.Rev. I separately. 365 write duty”

Whether it is called the “limited rule or the “baseball” rule, and I interchangeably, appeal presents use those terms this opportunity this public policy Court with the to evaluate the underlying operator liability. reject stadium owner and I would duty the limited rule and principles through- traditional tort out the entire baseball stadium.

I. duty This Court must first decide whether a of care exists specific this Campo, circumstance. As we restated in Crawn v. “ 494, 503, (1994), imposition duty 136 N.J. 643 A.2d 600 of a ‘[t]he complex analysis is the conclusion of a rather that considers the relationship is, parties, of the the nature of the risk—that its foreseeability severity—and impact imposition of a

88 ” Dunphy Gregor,

duty public policy.’ (quoting v. would have (1994)). the court 136 N.J. 642 A.2d 372 “When deter extended, liability it mines that a exists and will be draws Gwinnell, Kelly judicial policy.” on fairness and v. 96 lines based (1984). 544, 538, 476 A.2d 1219 N.J.

A. majority opinion explains, rule a As the the limited “ ‘two-prong’ a test” used to stadium owner to “defin[e] provide protected patrons.” for Fried and Robin seats its Gil Ammon, Spectators’ Assumption Risk: Is It ‘Fair’ or Baseball (2002). ‘Foul’?, 39, Sports Marq. L.Rev. 44 Under the first test, prong operator provide of that the stadium owner and “must protected seating spectators may for who ‘sufficient those be reasonably anticipated protected ordinary seats on an desire ” occasion,’ prong and under the second the stadium owner and provide operator protection spectators “must in ‘the most dangerous Hockey section’ of the v. Am. Ice stands.” Schneider & Ctr., Inc., 527, 533-34, Skating N.J.Super. 777 A.2d 380 Dist., City (App.Div.)(quoting Akins v. Falls Sch. 53 N.Y.2d Glens (1981)), denied, N.Y.S.2d N.E.2d certif. (2001). suggests plate The limited that the area behind home dangerous requires is the most section of the stadium and But, majority clear, protection. opinion most as the makes only plate dangerous area behind home is not section of fact, stadium. dugout gives [t]he best seats are the worst. A to a behind next spot projectiles dodge whizzing fan ... lethal potentially opportunity netting, among [miles hour]. than 100 more such seats are per Unprotected dangerous in most sports.

* * * dangerous [N]o more seats than ones near exist behind and the third base dugout righthanded starting. two are are when power pitchers lineups usually swing whistling loaded with lefthanded hitters who are to late at fastballs, likely danger Bans in those zones need to attention to foul balls into the stands. pay as the third baseman does. each pitch closely (babies dangerous for with infants should not Such seats are parents particularly (how there), Mds are riveted to allowed children school many elementary even be (slowed game?) reaction time makes for a three-hour and the elderly each pitch vulnerable). league and are an of minor and them Children seniors important part spring training games, even the held in small which premium typically ballparks for the most athletic risk, are affordable. The is enormous even however, seats right Angels Keough hit in In 1992 Matt was onlookers. California pitcher dugout drive while in the of Scottsdale and killed a line seated nearly temple dugout A was installed in front of the for the safety Stadium Arizona. fence and staff. players 64.] [Tom Verducei, Illustrated, 1, 2002, Safety Squeeze, Sports Apr. B. view, my policy and dictate that we treat owners fairness operators sports facilities the same as we treat of commercial Therefore, property I would other commercial owners. rule, operator invitee under which the stadium owner business inspection to owe a “to conduct a reasonable discover would conditions,” operator dangerous and the stadium owner latent “guard against any dangerous conditions ... have a to would discovered.” about or should have that the owner either knows n. 825 A.2d 1128 Rogers, Parks v. 176 N.J. 497-98 Realtors, (2003)(quoting Hopkins v. Fox Lazo & (1993)). Moreover, under certain conditions the 625 A.2d 1110 protect business visitors from foreseeable landowner has Inc., Clohesy Supermarkets, criminal acts. v. Food Circus (1997) 496, 516-17, (holding landowner had N.J. security parking protect invitees from provide lot “to its nothing game about the parties”). criminal acts of third There is distinguishes professional it from other businesses justify preferential treatment for stadium owners and that would I regarding liability patrons in the stands. can operators their for justification applying no for a lesser standard find reasonable operators. stadium owners and guidance in declaration often look to the Restatement

We (Third) Torts, According to the Restatement the common law. addressing relationship assumption of of the risk and defen- negligence, dant’s [a] who is aware of a reasonable risk and undertakes plaintiff actually voluntarily negligent. a a from not as when tries to rescue child a is it, fire, parent parent negligent for such as the of however, reasons, be other manner the rescue. may, negligent, a is the of a risk is relevant to

When awareness the plaintiff plaintiffs degree § of See 8. plaintiffs responsibility. is Whether the defendant believes that the aware of risk reasonably plaintiff and undertakes it be relevant to whether the acted defendant voluntarily may might The defendant have relied on the to avoid reasonably. reasonably plaintiff the known or other considerations dictate that defendant has risk, the policy may j; § no or a limited to the See Comment Restatement plaintiff. § Torts 282. is aware of a risk Second, Whether and plaintiff voluntarily superseding assumes it also be relevant to whether the conduct is a may plaintiff’s § Torts 442. Second, cause. See Restatement may Comparative responsibility superseding affect what constitutes a cause, but that issue beyond scope this Restatement. (Third) (2000).] § [Restatement of Liab. 3 cmt. c Torts; Apportionment Illustration number six of section three the Restatement specifically sports provides addresses stadium scenario and that: game A attends a at B’s A sits in a baseball the stands ballpark. portion entering where the screen balls from the seats. A is beyond point prevents aware balls are hit into the stands. The fact that A knew balls occasionally hit into the not are stands does constitute of risk. The fact occasionally assumption evaluating A knew balls are hit into the stands is relevant in occasionally engaging sitting

whether A acted of conduct while reasonably by particular types (sitting in the stands in the stands would not itself constitute unreasonable conduct). If the factfinder that A not concludes did act under the reasonably knowledge percentage A’s of the risk is relevant to the circumstances, responsi- assigns § to A. If the factfinder See 8. B could assume that A bility reasonably and other fans are aware that balls are hit into the this fact is occasionally stands, relying B also relevant to whether acted on A to watch out for reasonably balls constructing providing warnings. instead of a screen or [Id. 6.] at cmt. illus. c, Accordingly, I would follow the Restatement comparative negligence principles business invitee rule and liability injuries assess caused at a stadium. A trier of fact should consider all of the circumstances to determine operator whether the owner have breached their of care plaintiff. impose requirement That view does not operators “guarantee protection owners for all fans[.]” Instead, application of traditional 881 A.2d 707. Ante at negligence, adequately comparative such will principles, tort Restatement, supra. See playing for both sides. even out the field stated, if invitee rule are Simply of the business elements injured opportunity have the to seek present, then the fan should operator jury the and and a should decide whether owner redress injury. any responsibility that should for of the stadium bear C. and, many challenges past the has faced the when This Court warranted, changed the common law for the better. Our occasion contributory negligence perspective to law has shifted from a tort Yet, duty negligence rule comparative assessment. the limited a change that it is based on the not reflect because still does majority assumption Although the of risk doctrine. outdated ability adapt beauty “the law is to recognizes that of common the 708, times,” at decision to ante 881 A.2d the Court’s to represents a missed adopt duty limited rule in the stands shortcoming in opportunity to correct a our law. Court, this mark impression for we should

In this matter first “[Wjisdom comes, ought ground. never and so one too often new merely reject it late.” v. Int’l Fed’n to it because comes State not 505, 539, 780 Technical Local N.J. Eng’rs, & 169 of Profl (2001) (citations omitted). time is quotations and A.2d 525 reject duty to rule and to ripe this Court for principles professional to stadium traditional business invitee tort operators. owners and RIVERA-SOTO, part dissenting in concurring in

Justice part. any, duty, if appeal requires we address what

This patrons operator owe with stadium or its concessionaires leaving sports objects facilities: respect peril unique to summary judg- injure patrons. On playing field strike ment, the trial court held that the limited rule set forth in Ctr., Inc., Hockey Schneider v. Skating N.J.Super. Am. & Ice denied, (App.Div.), A.2d 380 788 A.2d certif. (2001), barred pressed Accepting the causes of action here. rule, the trial court’s articulation Appellate of the limited exception Division nonetheless created an to the limited patrons for those process who have left their seats and “in are placing reaching money orders or accepting pur line____” striking up chases or conversations with others [in] Club, Inc., Maisonave v. Newark Bears Baseball Profl N.J.Super. (App.Div.2004). Focusing on patron whether a “spectator” is a distinguishing those instanc patron/speetator longer es when the paying is no attention to the sporting engaged contest and is sports otherwise in one of the arena’s “commercial which specta venture[s] its nature induces guard,” tors to let down panel their held that the baseball operator stadium and its concessionaires “have a concomitant protect exercise reasonable spectators] care [the inattentive during heightened such of vulnerability.” times Ibid.

Sustaining, modifying, Appellate but the reasoning, Division’s a majority “adopt[s] of this Court Appellate now the Division’s Schneider, opinion in to the extent that it holds that owners operators must protected offer sufficient seating to those who ordinary would seek it on an provide screening basis and to in the dangerous Ante, most sections of 81-82, the stands.” 185 N.J. at majority A.2d at 706-07. The then defines the area where the duty applies—the limited stands—to the stairs that fans ascend and descend to access their seats in include! 1 the ac(jacent designated stands. areas Similarly, the stands immediately as “stand- ing viewing game, room only,” dedicated the solely fall within the of purview the limited rule. In contrast, duty areas, such as multi-purpose concourses and playground are areas, outside the of the rule,____ scope [Ante, 185 N.J. at at 82, 707.] A.2d Relying on Campo, 494, 503, Crawn v. 136 N.J. “ (1994) proposition for the ‘Recognition duty care, of a of ultimately, public rests policy considerations of and on notions ” fairness,’ ante, 80, of 185 N.J. at 881 A.2d at the facility sports a distinguishes the areas within majority between by owner/operator is the duty of defined the of care the where outside of the duty those “areas of the stadium rule and limited ante, duty stands,” at where the N.J. at 881 A.2d rule, invitee which owner/operator “is the business care of the duty of reasonable care to that a provides ‘owe[s] landowner property that any dangerous condition on his or her guard against ” Ante, or should have discovered.’ either knows about the owner (citing Hopkins v. Lazo at 709 Fox & 881 A.2d 185 N.J. (1993)). Realtors, 426, 434, A.2d 1110 duty adopts limited rule of Schneid- majority the as the Insofar Ctr., duty the of care an Hockey Skating Ice Inc. as er v. Am. & facility peril sports must meet for the distinct owner/operator of a field, majority’s I leaving playing concur with objects However, majority hybrid creates a conclusion. to the extent exactly by the peril addressed limited of care for hinges solely plain- on where a hybrid duty care that rule—a independent any act him or and is volitional acts take her tiffs I ultimately respectfully dissent. party held liable—I (the rule) for the same of care would field) leaving playing irrespective of the peril (objects same injured. plaintiffs location when

I. A. facility sports that a proposition I start from the self-evident As the ma- any commercial establishment. different from other case, “professional this acknowledges in the context of jority itself actively engage in sport fans unique because baseball is greet out-of-play by trying foul Fans often game to catch balls. seats, they dive over walls and rows with cheers as baseballs limb, claiming triumphantly the risking for the thrill of life and Ante, the 881 A.2d at 706. Given 185 N.J. errant ball.” sports unique that is to objects leaving playing the field peril of duty and facilities, rule as a reasonable I the limited embrace society’s conflicting reasoned accommodation of interests. Ctr., Inc., Hockey Skating Am. 342 N.J.Super. Schneider v. & Ice denied, 533-34, 777 A.2d (App.Div.), certif. (2001), Judge development traced of Skillman the the duty sports patrons by owed facilities to follows: cases which the There are some hold that of a has “no operator facility sports flying or to with from a duty” spectators balls because provide protection pucks, sporting watching who a assumes attends event the risks inherent the person the However, more rule is that a has a sport. commonly accepted sports facility flying of “limited care to from or balls Some cases duty” protect spectators pucks. affording hold that this limited be satisfied the duty may by simply spectators netting a an to ticket in area that is or opportunity purchase protected by

plexiglass. recognized prevailing what has be However, come to as the rule is that of facility duty limited care has two sports operator’s components: first, the seating must “sufficient for those who operator provide protected spectators may be to seats on an anticipated occasion,” desire reasonably protected ordinary dangerous the must “the second, most operator provide protection spectators section” of stands. The second of this limited component duty ordinarily may providing be satisfied seats operator screened behind home baseball by plate goals in and behind the hockey. Although of a commercial recreational like the operator of facility, operator general other has a to any business, exercise reasonable care for the safety its the measure of that “due care all the patrons, under circumstances.” The critical circumstance that of an determines of the of a scope operator rink field is that most to sit where hockey spectators can prefer they game willing have an unobstructed view the are to themselves to the expose flying risks balls or to obtain that view. it posed by is not pucks Consequently, long to unreasonable accommodate this so as the preference, sports facility sufficient seats screened for those who operator provides be spectators may seats reasonably and also screens seats that expected request protected any high injury flying an risk of from balls or pose unduly pucks. (citations omitted).]

[ on, I cannot improve adopt, Judge and therefore Skillman’s excel- that, analysis lent in respect peril objects would hold of the field, leaving playing operator sports facility has a two-part provide protective seating care: in a quantity demand, satisfy sufficient protect reasonable and to patrons in dangerous. those areas of stadium which are most hold, conclusions, I Judge would also consistent with Skillman’s requirement is, in large part, the latter “satisfied plate in seats behind home base- operator providing screened ball....” Ibid.

B. duty adoption the in our limited If we are to be consistent owner/operator to by a as owed stadium rule the standard care analysis it. patrons, must defined and circumscribed our be its owner/operator a duty rule does immunize stadium The limited not objects leaving the injured by playing liability persons from duty contrary, duty crystallizes the limited rule field. On the the respect specific peril of owner/operator of the a stadium owes provide sufficient screened objects leaving playing the field: therefor, satisfy and to screen those so the demand seats as to injury unduly high an risk of there is areas the stadium where analyze objects leaving playing application field. the from the We stages. the rule limited seating. plaintiff sought protected inquire whether the We first seated, injured object leaving and, by an so was If he did so while field, question must addressed whether playing be protected seating owner/operator provided sufficient the stadium owner/operator so, has satisfy If the stadium demand. then hence, duty—and, no duty of care and no breach of satisfied his protected However, plaintiff requested liability—would if flow. provide sufficient seating owner/operator failed to and the stadium therefor, satisfy and if seating the demand protected so as to injured object leaving the as a result of an plaintiff then was liability civil field, a resultant playing then breach of follow. injured

When, here, plaintiff is not while seated area, inquiry focus under the protected of the injured aas result of plaintiffs location when shifts to whether unduly an object playing was one that carried leaving the field an so, objects leaving playing field. If high injury from risk of area, then owner/operator did not screen if the stadium duty rule has been breached of care of the limited the standard However, liability plaintiffs follows. if the location when injured object leaving playing as a result of an field was not unduly high injury objects leaving one that carried an risk of from screened, playing field was otherwise then standard liability care of the limited rule has not been and no breached should follow. application

An principles of to these this case leads to the plaintiff conclusion that has failed to demonstrate that his location injured when as a a leaving playing result of batted ball the field unduly high injury was one that objects carried an risk of from leaving Indeed, playing only by the proof field. the adduced plaintiff was of injury; proof any here his own there was no of injuries arising objects other at that location from leaving the Thus, playing duty if field. we limited the rule as it is generally majority adopts understood—and the it before limit- ing its application—plaintiffs claim must fail.

II. Reasoning “a appropriate fair and accommodation of the competing requires application interests” that the of the Schneider duty only injuries rule be circumscribed to those suffered objects leaving playing from the plaintiff field while the is located ante, “stands,” 86, 709, in the 185 N.J. at majority 881 A.2d at the adopts hybrid instead a peril: standard of care for a the same if plaintiff injured is by object leaving located the stands when an field, playing duty the then the of owed is care that of the limited rule; duty if, however, plaintiff the is located within the stadium by but other than in injured object the stands when an leaving the “ field, playing duty then the of care owed is of to ‘reasonable care guard against any dangerous conditions on property his or her ” that the either owner knows about or should have discovered.’ Ante, 86, 185 at (citing N.J. 881 A.2d at 709 Hopkins v. &Fox Realtors, 426, (1993)). 434, Lazo 132 N.J. Accord ing majority, shifting duty this of moveable care—which triggered by any care, is not of party duty act who owes the of

97 merely moving part from by plaintiff a one instead is activated but “by of required ‘considerations of the stadium another—is ” Ante, N.J. at policy on of fairness.’ 185 public notions Campo, v. 643 (citing A.2d Crawn (1994)). .2d600 A facility owner/operator sports a care an of of owed peril objects leaving playing patrons respect of of majority would have it. We have

field cannot be as fickle as inquiry a of care consistently exists] that “[t]he [whether held parties, the weighing relationship of the nature involves a of the risk, public proposed in the solution.” and the interest Newark, Housing N.J. 186 A.2d Goldberg Auth. v. (1962). that, have made clear We also justice imposing [of care] is so clear that the [i]n such eases, most negligence of the actor’s assumed to on the basis simply cause of action in exist injury. resulting in In fact, risk of foreseeable harm creation of an unreasonable being judgment, an needed, analysis more is “more” the value based however, injured reasonable care. the actor owed party public policy, (1984) (citation omitted) A.2d 1219 Gwinnell, 544, 476 v. N.J. [Kelly 2A:15-5.7).] (emphasis supplied) (holding limited by N.J.S.A upon founded beyond question that cause of action “[a] It is duty injury.” causes negligence of a of care that involves breach (1987) 484, 469, Dinger, N.J. 524 A.2d 366 Weinberg v. 106 (citations omitted). analyze duty through what of care is owed We protect against the prism peril of we to and the dual the seek (“What duty the in the first instance. Ibid. party that owes depends upon in- the risk of harm precautions are ‘reasonable’ ordinarily preventing it. practicality of We evalu- volved and the ‘prudent on the of what a man’ ate a conduct basis defendant’s circumstances.”). determining in would have done defendant’s duty imposed, is on the defendant’s acts the of care to be our focus omissions, plaintiff. not of the those consistent, duty imposed on a defendant logically To of care be solely peril at the respect in of an identified cannot be altered reasonably per- to be plaintiff risk “[t]he whim of the because reasonably obeyed; it is risk duty the to be the ceived defines 98 apprehension, range injury person,

within of to the another determining in is taken into account the existence of the to 139, Yashin, 144, care.” v. 75 exercise Hill N.J. 380 A.2d 1107 (1977) (1970)); § (quoting Negligence 58 Am.Jur.2d see also Inc., 496, Clohesy Supermarkets, v. Food Circus (1997); Zone, N.J.Super. A.2d 1017 Kuehn v. Pub (App.Div.2003). extent, position by To that the advanced Justice Wallace in his logical analog express in is I concurrence the result the what in one, only one, duty respect dissent: there should be in care peril, shifting of an identified the creation of duties of care for peril fraught uncertainty inconsistency. same with Thus, although Justice Wallace and I in our differ conclusions— jettison entirety Justice would Wallace rule in its care, ante, negligence duty in favor aof common law 185 N.J. at 881 A.2d at apply while I would the limited rule uniformly peril across all circumstances affected we seek agree only on the principle: control—we core one and one stan peril dard of in respect objects care should leaving playing field. Finally, majority holding understates the burden that its places owner/operators. majority recognizes, on stadium As the year period, league in a “eight seven minor baseball stadiums Jersey Ante, opened New alone.” N.J. at A.2d at designed 702. Each such stadium was and constructed under Jersey: what was then the law New Schneider’s limited rule. Based diffuse notions of “fairness” that are not tethered public proper either law or policy,1 each such stadium now is 1 Lacking something majority concrete, more characterizes its hybrid grounded as one Yet, notions of fairness. facts of this case very debunk Plaintiff here was an and fan analysis. experienced who, player warnings without the need of the defendants, was of the by aware provided peril objects leaving playing Eschewing of the field. or, either seats more protected to the concession stands where he could point, protected the refreshment purchase sought, he to elected his beer at an albeit plaintiff purchase unprotected,

99 expenses incur for a choice: either the presented with Hobson’s or, through provided is the retrofitting, unless relief substantial budding for tort as little more than a hothouse Legislature, serve date, Legislature to live has seen fit with litigation. To If the balancing represents. interests that the limited of hybrid balancing preferable to to the Legislature perceives that be embraces, opt speak this may it to to majority then rule the subject directly.

III. Hockey Am. & v. The limited rule articulated Schneider Ctr., Inc., (App.Div.), N.J.Super. Skating Ice (2001), denied, fairly and A.2d 772 certif. objects leaving peril of appropriately particularized addresses the sports public of the a playing which confronts members field required facility. be all that is of That limited should hybrid duty facility. adoption a of a owner/operator sports sports depends not on acts or failure to act care that triggered by is the volitional facility owner/operator but instead inevitably equally unfortu patron will one of two acts of lead hermetically litigation, sports facilities additional nate results: object no can it. enclosing playing field so that leave the entire is, me, wrongful and a both unwarranted exercise Either result instance, plaintiffs complaint in the first judgment. Dismissing properly trial court here held game argument his diverted from the [t]he attention was [plaintiffs] move baseball stadiums not determinative of this issue. about People purchase autographs, engage in use the seek enter, food, restrooms, leave, purchase game. during an undue the course of It would burden pose other related activity that, to state under those It is unwarranted concession stand. temporary jettison the limited dictates that we circumstances, application fairness determining care a standard of to the in the context of rule. More point, no standard at all. an of "fairness” is tort inchoate standard simply liability, N.J. majority recognizes, Ante, so. at 79 n. have done As the other states 3. A.2d at 705 n. 3, 881 legal facilities if their to such

upon operators sports responsibility persons doing given what at a were moment. depended upon they short, once registered. least until the last spectator, always out spectator—at said, Simply right. the trial court had it I majority’s reasoning Because cannot to the subscribe as set ante, majority’s forth in opinion, Parts IV and V the N.J. 82-87, 707-10, I A.2d at respectfully dissent. joins opinion.

Justice LaVECCHIA in this Justice PORITZ Affirmance Modified/Remandment—Chief LONG, ZAZZALI, and Justices ALBIN and WALLACE—5. Concurrence in Part—Justices LaVECCHIA Parb/Dissent and RIVERA-SOTO—2. GONZALEZ, PLAINTIFF-RESPONDENT,

ANTONIO SAFE v. AND SOUND SECURITY CORP. DEFENDANT AND THIRD PARTY- PLAINTIFF, AND ATLANTIC CITY HOUSING & URBAN RE- ASSOCIATES, THE NEWAL L.P. SCHOOLHOUSE D/B/A APARTMENTS, DEFENDANT-APPELLANT, AND RAYMOND BUNN, OFFICER, SECURITY COMMUNITY REALTY MAN- AGEMENT AND CORPORATION INSIGNIA MANAGEMENT GROUP, DEFENDANTS, ABDULLAH, AND AHMID THIRD PARTY-DEFENDANT. January Argued Decided September 2005.

Case Details

Case Name: Maisonave v. Newark Bears Professional Baseball Club, Inc.

Court Name: Supreme Court of New Jersey

Date Published: Sep 13, 2005

Citation: 881 A.2d 700

Court Abbreviation: N.J.