| Correa v City of New York |
| 2009 NY Slip Op 07512 [66 AD3d 573] |
| October 22, 2009 |
| Appellate Division, First Department |
| Ziograin Correa, Respondent, v City of New York et al.,Defendants, New York Yankees, Appellant, and ESPN Regional Television Inc., Respondent.(And Other Actions.) |
—[*1] Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for Ziograin Correa,respondent. The Law Offices of Christopher P. DiGiulio, P.C., New York (William Thymius of counsel),for ESPN Regional Television Inc., respondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about July 7,2008, which, to the extent appealed from, denied the motion of defendant New York Yankees forsummary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
During the 2000 baseball season, plaintiff was employed as a security guard at YankeeStadium, assigned to sit on a stool in the field level of the stands, directly behind home plate.Although that section was protected from batted or thrown balls by backstop screening,plaintiff's right hand was struck and fractured by a foul ball. Plaintiff alleges that the ball wasable to get through to him because a window in the netting had been opened to allow placementof a television camera operated by defendant ESPN, and an electrician employed by third-partydefendant PEM Electrical Corp. negligently failed to tightly clip the netting around the camera.
The proprietor of a ball park is not required to protect all spectators, but "need only providescreening for the area of the field behind home plate where the danger of being struck by a ball isthe greatest" (Akins v Glens Falls City School Dist., 53 NY2d 325, 331 [1981]). Suchscreening must be "of sufficient extent to provide adequate protection for as many spectators asmay reasonably be expected to desire such seating in the course of an ordinary game"(id.; see Davidoff v Metropolitan Baseball Club, 61 NY2d 996 [1984]). Since"even after the exercise of reasonable care, some risk of being struck by a ball will continue toexist," a factual question for [*2]the jury would be presented"where the adequacy of the screening in terms of protecting the area behind home plate properlyis put in issue" (Akins, 53 NY2d at 331). In this case, although the Yankeesdemonstrated that screening was in place in the required area, it did not establish as a matter oflaw that such screening provided adequate protection to spectators and employees situated in thedanger zone behind home plate during nationally televised games.
Nor did the Yankees establish that they did not retain the PEM electrician who assisted theESPN cameraman during the game, and the record contains conflicting evidence on that issue.Although owners generally are not vicariously liable for negligence on the part of anindependent contractor (see Kleeman v Rheingold, 81 NY2d 270, 273 [1993]), theYankees, as the proprietor of a place of public assembly, have "a nondelegable duty to providethe public with a reasonably safe premises," and "the duty to provide [their] employees and theemployees of independent contractors with a safe place to work" (Backiel v Citibank,299 AD2d 504, 505, 507 [2002]).
The assumption-of-risk doctrine also presents issues of fact for a jury (see Maddox vCity of New York, 66 NY2d 270, 278 [1985]). Although the risk of being hit by an errantball is inherent in the sport of baseball, spectators and employees at a ball park cannot be deemedto have assumed the risk that the proprietor will fail to comply with the applicable standard ofcare adopted in Akins, thereby exposing them to an enhanced risk of injury beyond thatinherent in the nature of the sport (see Siegel v City of New York, 90 NY2d 471, 484[1997]). Furthermore, plaintiff, a young security guard, testified that he was directed to sit on thestool provided by the Yankees directly behind home plate throughout the game (cf.Maddox, 66 NY2d at 279). Concur—Friedman, J.P., McGuire, Moskowitz, Acostaand DeGrasse, JJ.