Opinion
No. 20877/01.
2008-06-30
Ziograin CORREA, Plaintiff, v. The CITY OF NEW YORK, New York Yankees and ESPN Regional Television Inc. and CT Corporation Systems, Defendants. and Third Party Actions.
id. at 331.
LARRY S. SCHACHNER, J.
Plaintiff, a security officer employed by Burns International Security, Inc. alleges that while in the course of his employment as a security guard during a baseball game at Yankee Stadium on May 28, 2000 he was struck by a foul ball resulting in personal injuries. Plaintiff claims that the baseball went through an opening in the protective netting/backstop behind home plate through which defendant ESPN Regional Television, Inc. (ESPN Regional) operated its television camera with the assistance of third-party defendant PEM Electrical Corp. (PEM).
In moving for summary judgment defendants/third-party plaintiffs, the City of New York (City) and the New York Yankees (Yankees) argue that they discharged their duty by providing a protected area behind home plate. In addition, the City and the Yankees maintain that their actions were not the proximate cause of plaintiff's injuries. The City and the Yankees also argue that pursuant to agreements which were in effect at the time of the incident they are entitled to indemnification by PEM and ESPN Regional. That portion of the City and the Yankees' motion for summary judgment on their second third-party causes of action against PEM has been withdrawn as per the stipulation dated January 4, 2008.
Defendant ESPN Regional has moved for summary judgment alleging that it was not negligent, as it had nothing to do with the condition of the protective netting. It contends that the job of arranging the protective netting around the television camera behind home plate was performed exclusively by electricians employed by third-party defendant PEM. ESPN Regional also maintains that it did not have any contractual indemnity obligations to any party because a separate corporate entity, ESPN Inc., is a party to the subject contract, but is not a party to this action.
Plaintiff has cross-moved for leave to serve an amended Bill of Particulars to assert violations of the New York City Building Code and Section 200 of the Labor Law. The City and the Yankees have also cross-moved to amend their answer to conform to the provisions set forth in the agreement between Major League Baseball and ESPN, Inc. and to assert cross claims against ESPN Regional for common law indemnification as well as contribution and contractual indemnification. The Yankees and the City also seeks additional discovery from ESPN Regional.
The motions and cross motions are consolidated for disposition and decided as follows.
Plaintiff's cross motion to serve an amended Bill of Particulars is denied at this late juncture. The City and the Yankees cross motion to amend their answer is granted, as the agreement between Major League Baseball and ESPN Inc. regarding the telecast of Major League Baseball games was only recently disclosed by ESPN Regional. That portion of the City and the Yankees cross motion seeking additional discovery is denied in light of this court's decision and order dated December 13, 2007.
The City and the Yankees were the owner and operator of the stadium, respectively. ESPN Regional had a television camera in operation in the seating area behind home plate at the time of plaintiff's accident. Third-party defendant PEM was an independent contractor, allegedly retained in part to perform the job of arranging and securing the protective netting around the ESPN Regional television camera located behind home plate.
In order to recover in a negligence action a plaintiff must establish that the defendant(s) owed him a duty to use reasonable care, and that the defendant(s) breached that duty resulting in harm to the plaintiff. Turcotte v. Fell, 68 N.Y.2d 432 (1986).
With respect to the City and the Yankee's motion for summary judgment, “At the outset, it should be stated that an owner of a baseball field is not an insurer of the safety of its spectators. Rather, like any other owner or occupier of land, it is only under a duty to exercise reasonable care under the circumstances' to prevent injury to those who come to watch the games played on its field.” Akins v. Glens Falls City School District, 53 N.Y.2d 325, 329 (1981) (citations omitted).
In addition,
“In the exercise of reasonable care, the proprietor of a ball park need only provide screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest. Moreover, such screening must be of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game .”
id. at 331.
Nevertheless, even if a proprietor adequately screens the area of the baseball field where the incidence of foul balls is the greatest, the risks inherent in viewing the game are not completely eliminated. id. In other words, “even after the exercise of reasonable care, some risk of being struck by a ball will continue to exist.” id. at 331.
In the instant matter, the City and the Yankees discharged their qualified duty of care by providing a protected area behind home plate via a protective netting and backstop, which included a “window” portion of the netting through which a television camera could be inserted. There is no evidence in the record before the court that the netting itself was somehow defective or dangerous. There has been no showing by plaintiff that the netting/backstop was somehow defectively designed or constructed, or, that it contained a hole or a similar defect caused by a lack of maintenance by the City or the Yankees.
Plaintiff attempts to raise an issue of fact with respect to the City and the Yankees, through the affidavit of Roberto Hernandez, an electrician and general foreman for PEM who worked at Yankee Stadium for approximately six years and was still working there at the time of plaintiff's accident. In his affidavit, Mr. Hernandez states that the Yankees' grounds crew created the “opening” in the netting for a television camera to go through the netting. He also states that a gap is created on the side and on top of the camera when a television camera is placed through the “opening.”
However, Mr. Hernandez' averments are as a fact witness only and not an expert. Therefore, plaintiff's assertions that the netting was inadequate, unsafe, improper, dangerous and hazardous because it had an opening in it for a television camera to televise the game are unsupported by industry standards, protocol or expert affidavit which specifies that this is somehow a design defect or negligence on the part of the Yankees or the City.
As plaintiff has failed to establish that the City breached its duty of care to him, a necessary element in a cause of action for negligence, the City's motion for summary judgment dismissing plaintiff's complaint and any counter and cross claims against it is granted. However, the Yankees remain in the action as there are other issues of fact with respect to them, such as, whether the Yankees or ESPN Regional hired the PEM electricians who assisted the cameraman, and whether plaintiff's accident arises out of any act or omission of ESPN Regional and/or PEM which would trigger any contractual indemnification for the Yankees.
With respect to ESPN Regional's motion for summary judgment, there are factual issues raised regarding whether the Yankees or ESPN Regional retained the PEM electricians that assisted the cameraman and allegedly secured the netting around the camera. It is also unclear in the record before the court whether the cameraman is an independent contractor or an employee of ESPN Regional, especially since ESPN Regional put forth the cameraman as its witness for its deposition.
Accordingly, the City's motion for summary judgment is granted and the motions by the Yankees and ESPN Regional for summary judgment are denied.
This constitutes the decision and order of the court.