| O'Connor v Syracuse Univ. |
| 2009 NY Slip Op 07550 [66 AD3d 1187] |
| October 22, 2009 |
| Appellate Division, Third Department |
| Cornelius J. O'Connor Jr., Appellant, v Syracuse University et al.,Respondents. |
—[*1] Hiscock & Barclay, L.L.P., Syracuse (Matthew J. Larkin of counsel), for SyracuseUniversity, respondent. Boeggeman, George & Corde, P.C., White Plains (Cynthia Dolan of counsel), for MatthewDiSanti, respondent. The Cambs Law Firm, L.L.P., Camillus (Peter J. Cambs of counsel), for Brian McNeil,respondent.
McCarthy, J. Appeal from an order of the Supreme Court (Platkin, J.), entered October 7,2008 in Albany County, which, among other things, granted defendants' motions for summaryjudgment dismissing the complaint.
This personal injury action arose from an altercation at a hockey game between defendantSyracuse University and defendant Slippery Rock University of Pennsylvania, initially involvingdefendant Matthew DiSanti, a Slippery Rock player, and defendant Brian McNeil, a spectator,which swiftly escalated, resulting in injury to plaintiff when he attempted to extricate McNeilfrom the fracas. Plaintiff commenced this action against defendants[FN*]alleging negligence on the part of DiSanti and McNeil, and negligence/negligent supervision onthe part of Syracuse [*2]University. Supreme Court deniedplaintiff's cross motion—joined by McNeil—to strike the answer of SyracuseUniversity for its alleged failure to turn over a witness statement and granted defendants' motionsfor summary judgment dismissing the complaint. The court held that plaintiff failed to present afactual issue as to the breach of any duty by defendants and that the rescue doctrine did not applyto absolve plaintiff of the risk he assumed in voluntarily coming to the aid of McNeil. Thisappeal by plaintiff ensued.
The game was held at Syracuse University's Tennity Ice Pavilion. Plaintiff, the father of oneof the Syracuse University players, watched the conclusion of the game from an area near wherethe teams would exit the ice. Along the pathway from the ice to the respective team lockerrooms, portable barriers separated spectators from the teams. After the game, the Slippery Rockteam exited the ice and was lined up along the barrier leading to the visiting team locker room asthey waited for it to be opened. Plaintiff was on the spectator side of the barrier, speaking withthe Slippery Rock players, when he heard DiSanti yell at McNeil. Seconds later, McNeilappeared at the barrier next to plaintiff and engaged in a physical altercation with DiSanti. Whenplaintiff saw DiSanti grab McNeil and pull him across the barrier, he immediately grabbedMcNeil around the waist in an attempt to pull him "away from the situation." Instead, plaintiffwas pulled across the barrier with McNeil, where they landed on the floor while several SlipperyRock players piled on and continued to strike McNeil. McNeil, relatively unscathed, was quicklypulled out of the pile by a fire safety officer, but plaintiff suffered a fractured ankle and shinbone as the altercation was broken up.
We have no difficulty agreeing with Supreme Court that the evidence before it raised nofactual issue regarding the breach of any duty by Syracuse University. Syracuse University owedspectators, including plaintiff, a duty of reasonable care under the circumstances to maintain safeconditions at the hockey game, including a duty to minimize foreseeable danger arising from thecriminal acts of third parties (seeMaheshwari v City of New York, 2 NY3d 288, 294 [2004]). The scope of that duty isdefined according to the likelihood that such behavior will occur and endanger spectators basedon past experience, and no duty is imposed to protect patrons against unforeseeable andunexpected assaults (see id.; Stafford v 6 Crannel St., 304 AD2d 997, 998[2003]).
Pursuant to written policy governing events at the pavilion, barriers separating the teamsfrom the spectators were in place and a uniformed public safety officer and a fire safety inspectorwere stationed within the barriers to discourage any inappropriate behavior on the part ofspectators or players leaving the ice. Such precautions were employed even though there hadnever been a physical confrontation between a spectator and a hockey player in the facility'shistory. The sudden and violent confrontation between McNeil and DiSanti was not preceded byescalating hostilities that might otherwise have served to put Syracuse University personnel onnotice of a possible skirmish (compare Ash v Fern, 295 AD2d 869 [2002]). Thespontaneous confrontation that resulted in plaintiff's injuries lasted only moments before it wasended by Syracuse University personnel posted nearby.
As to plaintiff's claim that defendant failed to realize that spectators were drinking alcohol,the record reveals that a "no alcohol" policy was posted and enforced at the Tennity Ice Pavilion.While enforcement may not have been perfect, plaintiff's evidence that beer cans may have beenfound in a garbage can near the area where McNeil had watched the game was hearsay and, byitself, does not raise a triable issue as to the foreseeability of the confrontation between McNeiland the Slippery Rock players (see Stevens v Spec, Inc., 224 AD2d 811, 813 [1996]).[*3]McNeil admitted to drinking several beers prior to the game,but testified that he did not consume any alcohol at the game, and the evidence presented doesnot even suggest that McNeil's conduct prior to the altercation should have attracted the attentionof Syracuse University personnel. Although the game may have been hard fought and theSlippery Rock players upset after a significant loss, Syracuse University's policies and practicesand the actions of its personnel were reasonable under the circumstances (see Maheshwari vCity of New York, 2 NY3d at 295). Accordingly, the claims against Syracuse Universitywere properly dismissed.
We reach a different conclusion, however, regarding the dismissal of plaintiff's claimsagainst DiSanti and McNeil. Both defendants argued that they owed no duty to plaintiff and thatplaintiff assumed the risk of injury when he voluntarily came to the aid of McNeil. Plaintiff, inresponse, invoked the "danger invites rescue" doctrine (see Wagner v International Ry.Co., 232 NY 176, 180 [1921]), which Supreme Court found inapplicable because, in thecourt's view, the record evidence did not support a reasonable belief that McNeil was inimminent peril of serious injury. We disagree.
Initially, we note that Supreme Court properly disregarded unauthorized surreply papers andan affirmation by plaintiff's attorney intended to clarify plaintiff's motivation for attempting torestrain McNeil (see CPLR 2214; Matter of Kushaqua Estates v BondedConcrete, 215 AD2d 993, 994 [1995]; Fallsburg Fishing & Boating Club, Inc. v Spiegel, 9 AD3d 765,766 [2004]). However, the record evidence nevertheless supports a logical inference thatplaintiff, in attempting to restrain McNeil, was motivated by a reasonable belief of imminentperil warranting application of the danger invites rescue doctrine.
Plaintiff acted swiftly and spontaneously in grabbing McNeil, a stranger to plaintiff, aroundthe waist to keep him from being pulled across the barrier into a line of potentially hostilehockey players. Plaintiff testified at his examination before trial that approximately 15 SlipperyRock players were lined up, waiting to enter the locker room, when the incident occurred.Although he did not hear the full exchange between DiSanti and McNeil, he saw DiSanti punchand pull McNeil. When asked why he tried to grab McNeil, plaintiff testified, "Well, he wasbeing pulled towards—across the barrier to these [Slippery Rock] players and I thought Icould grab him and pull him the other way, keep him away from the situation." It is a logicalinference that the "situation" plaintiff referred to was the immediate danger of serious injuryposed where one university student, who was a mere spectator and not a participant in thecollegiate hockey game that preceded these events, is being pulled into a physical confrontationwith a group of hockey players, fresh off the ice from a emotionally packed defeat and fullysuited with protective gear, skates and hockey sticks.
For the danger invites rescue doctrine to apply, it is sufficient that plaintiff held a reasonablebelief of imminent peril of serious injury to another, and it matters not that the peril feared didnot materialize (see Provenzo v Sam, 23 NY2d 256, 260 [1968]; Gifford vHaller, 273 AD2d 751, 752 [2000]). Plaintiff witnessed a tense hockey game and saw amember of the defeated team, in full gear with teammates standing close by, punch a studentspectator. Plaintiff jumped to the aid of this stranger an instant before several other hockeyplayers joined in the attack that resulted in plaintiff's ankle and shin bone being fractured.Plaintiff had "more than a mere suspicion" that McNeil was endangered (Snyder vKramer, 94 AD2d 860, 861 [1983]). The instant facts stand in stark contrast to aschoolhouse fight between eighth-graders where a fear of serious injury might be unreasonable(compare Ha-Sidi v South Country Cent. School Dist., 148 AD2d 580, 581-582 [1989]).Whether plaintiff acted reasonably under the [*4]circumstancessuch that he will not be deemed to have assumed the risk in attempting rescue is a question forthe trier of fact (see Provenzo v Sam, 23 NY2d at 261; Wagner v International Ry.Co., 232 NY at 181; Gifford v Haller, 273 AD2d at 753).
Turning to plaintiff's cross motion pursuant to CPLR 3126 for sanctions against SyracuseUniversity for failing to produce a statement allegedly submitted to its officials by an eyewitnessto the altercation, it cannot be said that Supreme Court abused its discretion in denying themotion. The law is settled in favor of resolving actions on the merits whenever possible, and thedrastic remedy of striking a pleading is appropriate only where the moving party conclusivelydemonstrates bad faith or willful, contumacious conduct by the nondisclosing party (seeCafferty v Thomas, Collison & Place, 282 AD2d 959, 961 [2001]). The parties submittedconflicting evidence as to whether the witness statement at issue ever existed, and SyracuseUniversity conducted a thorough, though unsuccessful, search of its records for any suchstatement. Moreover, plaintiff failed to demonstrate any prejudice, inasmuch as the witnessremains willing and available to testify at trial as to her recollection of the event.
Rose, J.P., Stein and Garry, JJ., concur. Ordered that the order is modified, on the law,without costs, by reversing so much thereof as granted the motions of defendants Brian McNeiland Matthew DiSanti for summary judgment; said motions denied; and, as so modified, affirmed.[See 21 Misc 3d 1106(A), 2008 NY Slip Op 51983(U).]
Footnote *: The action was discontinued asto Slippery Rock by stipulation dated November 13, 2006.