Opinion
No. 05 50000480
July 26, 2007
MEMORANDUM OF DECISION RE DEFENDANTS MOTION FOR SUMMARY JUDGMENT #110.5
On April 15, 2005, the plaintiff, Eugene Mantovani, commenced suit against the defendants, Yale University and Connecticut Baseball, LLC. The complaint was amended on August 30, 2005, at which time the plaintiff withdrew his complaint against Yale University, and proceeded solely against Connecticut Baseball, LLC. The first amended complaint is comprised of a single count, sounding in negligence. The present action arises out of injuries sustained by the plaintiff, while allegedly a business invitee of a facility leased and operated by the defendant.
The plaintiff alleges the following facts in his complaint. The defendant owns and maintains a professional baseball team known as the New Haven Ravens. In the course of its business, the defendant leased and operated the baseball stadium located at Yale Field in West Haven, Connecticut. On July 29, 2003, the plaintiff was attending a New Haven Ravens game at the facility, and participated in a cookout located in the right field pavilion area. Due to the absence of any safety devices to prevent injury to occupants, the plaintiff was struck by a batted ball and suffered substantial injury to his eye.
The defendant filed a motion for summary judgment, accompanied by a memorandum of law, on December 15, 2006. In support of the motion, the defendant submitted the following: (1) the signed and sworn affidavit of Michael R. Biagini, (2) two photographs depicting the layout of Yale Field, and (3) an excerpt from the certified deposition testimony of Eugene Mantovani. On March 14, 2007, the plaintiff filed a memorandum of law in opposition. In support of its argument, the plaintiff submitted several exhibits, including: (1) a diagram of the baseball stadium, (2) photographs of the right field pavilion area of the facility, (3) photographs of the left field pavilion area with protective netting and (4) the signed and sworn affidavits of Eugene Mantovani, Paul W. Muzyka, Mark Sandillo, and Sal Coppola. The affidavits serve, in part, to authenticate the diagram and photographs. This motion was heard at short calendar on April 30, 2007.
The Connecticut Code of Evidence, commentary § 9-1(a) provides: "Before an item of evidence may be admitted, there must be a preliminary showing of its genuineness. The requirement of authentication applies to all types of evidence, including . . . demonstrative evidence such as a photograph . . . A witness with personal knowledge may testify that the offered evidence is what its proponent claims it to be." See also New Haven v. Pantani, 89 Conn.App. 657, 679, 874 A.2d 849 (2005); Booker v. Stern, 19 Conn.App. 332, 333 563 A.2d 305 (1989). "Ordinarily . . . [a photograph] should be substantiated by testimony that it is a correct representation of the conditions it depicts, and in so far as it is properly so authenticated it becomes evidence of those conditions." (Internal quotation marks omitted.) Tarquinio v. Diglio, 175 Conn. 97, 98, 394 A.2d 198 (1998).
DISCUSSION
"[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law." (Internal quotation marks omitted.) Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (2006). Although the movant has this burden, "a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
The defendant moves for summary judgment on the ground that a genuine issue of material fact is not in dispute that it did not owe a legal duty to the plaintiff. To establish the nonexistence of a duty, the defendant offers two arguments. First, it argues that the limited duty rule is applicable to the present case, and accordingly, it was only obligated to provide backstop netting to protect the spectators behind home plate and was not required to implement safety devices to protect the occupants of the right side pavilion area. In support of this argument, the defendant urges the court to adopt the rationale set forth in Teixiera v. New Britain Baseball Club, Inc., Superior Court, judicial district of New Britain, Docket No. CV 05 4004214 (July 18, 2006, Shaban, J.) (41 Conn. L. Rptr. 777), in which the Superior Court adopted the limited duty rule. Secondly, the defendant argues that, as a possessor of land, it had no duty to warn the plaintiff, as a business invitee of the facility, of a dangerous condition when the plaintiff had actual knowledge of the condition. The defendant argues that, absent the existence of a duty to the plaintiff, a cause of action sounding in negligence cannot stand, and, therefore, it is entitled to judgment as a matter of law.
In response, the plaintiff argues that the court should apply a traditional negligence analysis, rather than the limited duty rule, to the facts of this case. Additionally, the plaintiff argues that the defendant owed a duty of care not to increase the risks inherent to a spectator at a professional baseball game. It is the plaintiff's contention that several issues of material fact remain as to whether the defendant breached its duty of care, specifically, whether the defendant (1) knew or reasonably should have known of the danger of foul balls to the occupants of the pavilion area; (2) failed to warn occupants of the danger; and (3) positioned the picnic tables in such a way that patrons did not have a view of home plate, thereby, increasing the risk of injury by a foul ball. Since questions of fact remain regarding whether this duty was breached, the plaintiff maintains that summary judgment is inappropriate at this time.
Applicability of the Limited Duty Rule
The crux of each party's argument lies in whether the limited duty rule applies in the present case. The applicability of the limited duty rule was discussed for the first time in Connecticut jurisprudence by the Superior Court in Teixiera v. New Britain Baseball Club, Superior Court, judicial district of New Britain, Docket No. CV 05 4004214 (July 18, 2006, Shaban, J.) (41 Conn. L. Rptr. 777), a case sharing many factual similarities with the present matter. In Teixiera, the plaintiff, a spectator at a professional baseball game, purchased admission into a picnic area at a ballpark to attend an all-you-can-eat barbeque prior to the beginning of the game. Id., 777. While present in the picnic area and before the game began, the plaintiff was struck by an errant baseball thrown during the player's warm-up routine. Id. He sought to recover, from the operator of the field, for the injuries he sustained; however, summary judgment was granted by the court in favor of the defendant. Id. Looking to other jurisdictions for guidance, the court applied the limited duty rule and found that the defendant had fulfilled its duty to the plaintiff by providing adequate seating in a protected area. Id., 778.
In reaching this holding, Texiera cited extensively to Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 223 (Mich.App. 2001), in which the Michigan Court of Appeals stated: "The limited duty precedents do not eliminate the stadium owner's duty to exercise reasonable care under the circumstances to protect patrons against injury . . . Rather, these precedents define that duty so that once the stadium owner has provided adequately screened seats for all those desiring them, the stadium owner has fulfilled his duty of care as a matter of law. The limited duty doctrine establishes the outer limits of liability and thereby prevents a jury from requiring a stadium owner to take precautions that are clearly unreasonable . . . By providing greater specificity with regard to the duty imposed on stadium owners, the rule prevents burgeoning litigation that might signal the demise or substantial alteration of the game of baseball as a spectator sport." (Internal quotation marks omitted.) Teixiera v. New Britain Baseball Club, supra, 41 Conn. L. Rptr. 778.
In support of its motion for summary judgment, the defendant argues that this court should follow the path forged by the court in Teixiera and find that a stadium operator's only duty is to provide adequate seating in a protected area, and this duty does not extend to require the implementation of safety devices in the right hand pavilion area where the plaintiff was injured. In contrast, the plaintiff argues that modern jurisprudence has moved away from bright line approaches to determine liability and have instead adopted fact-specific methods to determine each party's respective responsibilities. Of particular relevance to the plaintiff's argument is the fact that assumption of risk, the underlying predicate to the limited duty rule, no longer has a place in current Connecticut jurisprudence. Therefore, it is the plaintiff's contention that the holding of Teixiera is, in essence, an anomaly in present tort law and modern legal theory, and should not be adopted by this court.
There is no appellate authority on the applicability of the limited duty rule in Connecticut. This court has reviewed not only the Texiera decision but also decisions from other jurisdictions that have addressed this issue. These other courts and/or legislatures have taken several different approaches. Some courts have adopted the limited duty rule. See e.g. Rudnick v. Golden W. Broadcasters, 156 Cal.App.3d, 793, 202 Cal.Rptr. 900 (1984); Arnold v. City of Cedar Rapids, 443 N.W.2d 332 (Iowa 1989); Benejam v. Detroit Tigers, Inc., 246 Mich.App. 645, 635 N.W.2d 219 (2001); Alcins v. Glens Falls City School District, 53 N.Y.2d 325, 441 N.Y.S.2d 644, 424 N.E.2d 531 (1981). The Illinois legislature adopted the Baseball Facility Liability Act which codified the limited duty rule. Other courts have rejected the limited duty analysis and applied a common law negligence standards to stadium owners. See e.g., City of Milton v. Broxson, 514 So.2d 1116, 1118 (Fla.Dist.Ct.App. 1987); Bellezzo v. Arizona, 174 Ariz. 548, 851 P.2d 847, 850 (Ct.App. 1993). Finally some courts have adopted the limited duty rule but have limited the immunity it grants to the actual spectator stands in the stadium as opposed to concourses or eating pavilions. See Maisonave v. Newark Bears Professional Baseball Club, Inc., 185 N.J. 70, 881 A.2d 700 (2005).
The Baseball Facility Liability Act provides: "The owner or operator of a baseball facility shall not be liable for any injury to the person or property of any person as a result of that person being hit by a ball or bat unless: (1) the person is situated behind a screen, backstop, or similar device at a baseball facility and the screen, backstop, or similar device is defective (in a manner other than in width or height) because of the negligence of the owner or operator of the baseball facility; or (2) the injury is caused by willful and wanton conduct, in connection with the game of baseball, of the owner or operator or any baseball player, coach or manager employed by the owner or operator." 745 ILCS 38/10.
In Maisonave, "the term `stands' includes the stairs that fans ascend and descend to access their seats in the stands. Similarly, areas immediately adjacent to the stands designated as `standing room only,' and dedicated solely to viewing the game, fall within the purview of the limited duty rule. In contrast, multi-purpose areas, such as concourses and playground areas, are outside the scope of the rule . . ." Maisonave v. Newark Bears Professional Baseball Club, Inc., 185 N.J. 81.
In Maisonave v. Newark Bears Professional Baseball Club, Inc., supra, a foul ball struck the plaintiff in the face while he was purchasing a beverage on the concourse of a minor league stadium. Id., 74. The court analyzed the breadth of the limited duty and found the rule to be applicable only when the spectator was present in the stands. Id. The court reasoned that "public policy and fairness require application of traditional negligence principles in all other areas of the stadium." Id. In reaching this conclusion, the court recognized the need to accommodate the interests of both fans and owners. [W]hile watching the game, either seated or standing in an unprotected area, spectators reasonably may be expected to pay attention and to look out for their own safety . . . It is the well-understood nature of the game that batted or thrown baseballs can land in the stands. Indeed, most spectators prefer to sit where they can have an unobstructed view of the game and are willing to expose themselves to the risks posed by flying balls . . . to obtain that view." Id. The court then states: "[I]t would be unfair to hold owners and operators liable for injuries to spectators in the stands when the potential danger of flyballs is an inherent, expected, and even desired part of the baseball fan's experience. Moreover, owners and operators would face undue hardship if forced to guarantee protection for all fans in the stands from every fly ball." Id.
The Maisonave court questioned the factual foundation of one of the stated goals of the limited duty rule "to insure spectators desiring protection from foul balls will be accommodated and that seats in the most dangerous area of the stadium will be safe." Id., 79-80. The court cited a law review article challenging the assumption that the most dangerous area in the stadium stands was behind home plate.
"Traditionally, balls hit straight back are hit with the bat coming underneath the ball, which takes off some of the speed. In contrast, line drive fouls (most frequently right down the foul lines) are normally hit flush, and send the ball at a higher velocity down the line and into the stands." Maisonave v. Newark Bears Professional Baseball Club, Inc., supra, 185 N.J. 82, citing Gil Fried, "Baseball Spectators' Assumption of the Risk: Is it `Fair' or `Foul'?" 13 Marq. Sports L. Rev. 39, 58 (2002) (internal citation omitted).
The court notes that the danger of a foul ball line drive was demonstrated by the recent death of a minor league first base coach who was struck by a line drive foul ball while in the coaching box. See www.SI.com (Search on website for "Tulsa Drillers' first base coach killed by a line drive" posted Monday July 23, 2007 at 2:57 a.m.).
Another articulated goal of the limited duty rule is based, in part, on preserving the spectator experience at a ball game. Both parties submitted photographs of Yale Stadium, including a photograph depicting the layout of the right field pavilion area where the plaintiff was injured. Of particular relevance to the court is the configuration of the pavilion area. The tables in this area were not positioned in such a way to enable all the occupants of this area to watch the game, and, therefore, be aware of errant baseballs. The tables were positioned so that half the people seated at the table would have their back to the baseball diamond. Photographs of the left field pavilion were submitted in opposition to this motion. The left field pavilion contains picnic tables and play areas for children and has protective netting. These pavilion areas make the baseball game experience more manageable for parents with young children or allow a patron to eat in a more comfortable setting than a cramped stadium seat but they are not areas where the attention of patrons is focused on watching the ballgame. In the present case, however, the plaintiff along with the other occupants of the right hand pavilion area, was participating in a cookout, not watching a baseball game. Therefore, the need to preserve the "spectator experience" in this situation carries less weight in the court's analysis. Application of the limited duty rule, so as to protect the spectator experience, does not make compelling sense when applied to areas of the stadium where the stadium operator has directed the fans attention away from the playing field. As noted in Maisonave, "[f]ans foreseeably and understandably let down their guard when they are in other areas of the stadium. Once the fan has disengaged him or herself from the activity on the field and has left the stands, that individual is no longer trying to catch foul balls or even necessarily watching the game. It is all harmless fun until that one foul ball comes screaming at the wrong time and in the wrong place." Maisonave v. Newark Bears Professional Baseball Club, Inc., supra, 185 N. J. 84.
The application of the limited duty rule is to grant stadium owners immunity from suits from patrons or spectators. As a rule that grants immunity in a situation that would normally be covered by common law rules, the scope of the limited duty rule should be narrowly tailored to achieve its public policy purposes — preserving the character of the game and the avoidance of the proliferation of lawsuits. "The fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and the deterrence of wrongful conduct . . ." (Internal citations omitted.) Lodge v. Arett Sales Corporation, 246 Conn. 563, 579, 717 A.2d 215 (1998). The Supreme Court, when considering legislative grants of immunity, has noted that the grant of immunity "is in derogation of the common law, it should be strictly construed to effectuate its intended purpose." Conway v. Town of Wilton, 238 Conn. 653, 672 n. 9, 680 A.2d 242 (1996). While there is no legislation involved in this case, the policy of strictly construing or narrowly construing a rule which in effect grants immunity is an appropriate consideration in determining the applicability or scope of the limited duty rule in Connecticut.
This court finds that the balance struck by the court in Maisonave between the competing interests of safety and the traditions underlying a spectator sport like baseball is the sounder approach and ought to be applied. The court is not persuaded that the limited duty rule applies when a person is injured in an area of the stadium that is not conducive to the spectator experience.
For this reason, this court adopts the reasoning set forth in Maisonave and finds the limited duty rule to only apply to injuries occurring in the stands. The rule does not apply to the present case, where the plaintiff was in a section of the Yale Stadium operated by the defendant that encouraged the plaintiff to engage in activities inconsistent with paying close attention to the action on the field.
Open and Obvious Danger
Having found that the limited duty rule is not applicable to the facts of the present case, a traditional negligence analysis is necessary to determine the existence of a duty. In support of summary judgment, the defendant argues that even if the limited duty rule did not apply, it did not have a duty to warn a business invitee of an open and obvious danger. The defendant maintains that the possibility of a foul ball landing in the stands or another area of the stadium is an open and obvious danger when attending a baseball game. In response, the plaintiff argues that genuine issues of material fact remain regarding whether the defendant knew or should have known that foul balls were regularly hit into the right hand pavilion area and did nothing to prevent or warn of this danger.
"In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status. i.e., trespasser, licensee or invitee . . . A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe . . . In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 859, 905 A.2d 70 (2006). "The duty to warn, however, does not arise if an invitee already has actual knowledge of the dangerous condition." Fleming v. Garnett, 931 Conn. 77, 84, 646 A.2d 1308 (1994). The failure to warn an invitee of something he already knows is without legal significance." Warren v. Stancliff, 157 Conn. 216, 220, 251 A.2d 74 (1968).
Neither party disputes the plaintiff's status as a business invitee. Instead, the parties dispute whether the "open and obvious" exception to the duty to warn is applicable. Our Supreme Court has stated that when a court is faced with the issue of whether a condition was open and obvious; the issue should be reserved for the trier of fact if there is "room for reasonable disagreement as to whether the plaintiff was or should have been aware of the . . . condition just before his [injury]." Warren v. Stancliff, supra, 157 Conn. 220-21; see Fleming v. Garnett, supra, 231 Conn. 84. The only evidence offered by the defendant to establish that the plaintiff had actual knowledge of the danger of foul balls in the right hand pavilion area is an excerpt of the plaintiff's deposition. The plaintiff testified that, prior to attending the New Haven Ravens game, he had seen foul balls fly into the stands while watching baseball games on television, and, therefore, was aware that a foul ball could fly into the stands. This evidence is insufficient to sustain the defendant's burden of proof on summary judgment. The plaintiff was not injured while in the stands, and the defendant has failed to submit any evidence to establish that the plaintiff was aware that a foul ball could enter the right hand pavilion area. Viewing the evidence in the light most favorable to the nonmoving party, the court finds that a genuine issue of material fact still exists regarding whether the risk of a foul ball into the right hand pavilion area was an open and obvious danger. The defendant's motion for summary judgment is denied.