Opinion
Civil Action No. 99-1685
January 5, 2001
ORDER
This matter is before this court on two separate motions for summary judgment filed pursuant to Federal Rule of Civil Procedure 56(c). The Phillies ("defendant Phillies") have moved for summary judgment against Tracy Ruth and Glenn Ruth ("plaintiffs"). The City of Philadelphia ("defendant City of Philadelphia") has moved for summary judgment against plaintiffs and has also moved for summary judgment against defendant Phillies on its claim for indemnification. For the reasons contained herein, the motion of defendant Phillies will be granted, and the motion of defendant City of Philadelphia will be granted in part and dismissed in part.
BACKGROUND
During a game between defendant Phillies and The Cincinnati Reds on September 12, 1997, plaintiff Tracy Ruth was struck in her left eye by a foul ball that was hit during the game by defendant Phillies' player Ruben Amaro. Both plaintiffs were seated in Row 19, Section 232, which is slightly on the third base side of home plate.
Plaintiffs filed the instant action on April 13, 1999. Plaintiffs contend that had the defendants used a wider protective screen, the screen would have protected plaintiff Tracy Ruth from being hit by the baseball. Plaintiff Glenn Ruth seeks damages for loss of consortium.
DISCUSSION
Summary Judgment
This court will enter a summary judgment only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the non-moving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. at 324. The non-moving party may not rest upon the mere allegations or denials of its pleading. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994).
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.Celotex, 477 U.S. at 322.
On a motion for summary judgment, the court does not "weigh the evidence and determine the truth of the matter, but [instead] determine[s] whether there is a genuine issue for trial." Anderson, 477 U.S. at 242-43. Credibility determinations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
Pennsylvania Law
The parties have all stipulated that, as for the issues of duty of care and assumption of risk, Pennsylvania law governs.
Pennsylvania follows the "no-duty" rule regarding the duty owed by a baseball park to its patrons. See Jones v. Three Rivers Mgmt. Corp., 394 A.2d 546, 549-51 (Pa. 1978); Telega v. Security Bureau, Inc., 719 A.2d 372, 375-77 (Pa.Super. 1998); Pestalozzi v. Philadelphia Flyers Ltd., 576 A.2d 72, 73-75 (Pa.Super. 1990). This rule holds that a patron at a baseball game is owed no duty for risks that are inherent in attending a baseball game, i.e., those that are common, frequent, and expected. Jones, 394 A.2d at 551; Telega, 719 A.2d at 376; Pestalozzi, 576 A.2d at 73-74. "In baseball, . . . the spectator as a matter of law assumes the risk of being hit by a fly ball." Jones, 394 A.2d at 85 (quoting Goade v. Benevolent and Protective Order of Elks, 213 Cal.2d 138 (1963)). Still, even where the risk is inherent, a plaintiff can survive summary judgment "when [he] introduces adequate evidence that the amusement facility in which he was injured deviated in some relevant respect from established custom." See Jones, 394 A.2d at 550; see also Pestalozzi, 576 A.2d at 74.
In Pestalozzi, the Superior Court of Pennsylvania held that the "no-duty" rule applies to spectators hit by flying pucks at a hockey game. 576 A.2d at 74. The plaintiff, however, argued that the risk was no longer inherent because he purchased a seat behind protective plexiglass to avoid being hit by a stray puck. Id. at 73. The court found, "[T]he risk of a spectator struck by an errant puck, even for an individual sitting behind plexiglass, is common and foreseeable." Id. at 74. The court affirmed the order of the trial court, which granted summary judgment to the Philadelphia Flyers. Id.
Here, plaintiff Tracy Ruth was hit in the eye by a stray ball during the play of the game. This implicates Pennsylvania's "no-duty" rule. Thus, under Pennsylvania law, the burden is on the plaintiffs to introduce adequate evidence that Veterans stadium deviated from an established custom.
Plaintiffs have not introduced any evidence that demonstrates that the stadium deviated from an established custom. In plaintiffs' brief in opposition to these summary judgment motions, plaintiffs contend that they can introduce statistical evidence to demonstrate that the stadium strayed from the established norm of having a protective screening behind home plate that is larger than that actually used at the stadium. Plaintiffs are correct that this evidence is relevant. In fact, to survive summary judgment, this evidence is mandatory.
However, plaintiffs have produced no such evidence. They state that the average width of the protective screens used at Major League Baseball Stadiums around the country is 75 feet. They state that the largest width of a protective screen at a Major League Baseball Stadium is 100 feet. They state that the protective screen used at Veterans Stadium is the smallest-width screen of any stadium in Major League Baseball — 56 feet. They argue that a jury must determine whether the 56-foot wide protective screen used at Veterans stadium violates the established custom of Major League Baseball.
If plaintiffs had provided any evidence other than these unsupported statements in their brief, the issue may have been one for a jury determination. However, this court does not have to reach that issue. Plaintiffs have provided no evidence. They do not state which stadium has the 100-foot wide protective screen or provide evidence to demonstrate the truth of the claim. They provided no evidence demonstrating on what foundation they based their opinion that the average width of a protective screen is 75 feet. Similarly, the plaintiffs have no evidence in the record indicating that the 56-foot protective screen at Veterans Stadium is the smallest-width screen in Major League Baseball. "[L]egal memoranda and oral argument are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion."Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1372 (3d Cir. 1996) (quoting Jersey Cent. Power Light Co. v. Township of Lacey, 772 F.2d 1103, 1109 (3d Cir. 1985)).
Moreover, given the statement of law in Pestalozzi that summary judgment for defendant was proper where a patron was hit by a hockey puck even though the patron was sitting behind protective plexiglass, summary judgment may have been proper even if plaintiffs had provided any evidence. Under Pennsylvania law, it appears that the "no-duty" rule applies even where a sports arena has undertaken to protect spectators from flying objects by installing protective screens. So, even if defendants had installed a larger screen, it would still be "common and foreseeable," Pestalozzi, 576 A.2d at 74, that a spectator could be hit by a baseball.
CONCLUSION
Because plaintiffs have failed to present any evidence that defendants deviated from an established custom, summary judgment will be granted to defendant Phillies.
Because this court will grant summary judgment to defendant Phillies, the portion of defendant City of Philadelphia's motion that joined in defendant Phillies' motion for summary judgment will be granted. The remainder of defendant City of Philadelphia's motion will be dismissed as moot.
Accordingly,
IT IS ORDERED this 5th day of January, 2001 that defendant Phillies' motion for summary judgment [23] is GRANTED; and
Defendant City of Philadelphia's motion for summary judgment [24] isGRANTED IN PART and DISMISSED IN PART; and
This matter is DISMISSED WITH PREJUDICE.