For many sports teams, assumption of the risk and fans go hand-in-hand. The teams want fans filling the seats in their stadiums or arenas, but if a fan is injured, the sports teams want to claim that the fan consented to the risk of getting hurt. Should sports team be able to claim this defense just because a fan wanted to see a game? The answer should be “No.”
Let’s look at an example of a baseball spectator getting injured at a game. The injury happened in 2011. Andy Zlotnick, a 50-year-old Manhattan real estate executive, attended a New York Yankees-Oakland Athletics game in August 2011. He was sitting in the third row, which was about 50 feet past the first base line. He attended the game with his then 11-year-old son. During that game, it rained. It actually rained enough to cause the game to be a cancelled. However, it was at the end of the season. So the teams decided to keep playing.
During the game, it began raining again. The New York Yankees are one of a handful of teams which allows umbrellas into a baseball park. Fans using their umbrellas while watching the rain.
Hideki Matsui, who then played for the Oakland A’s, hit a foul ball. The ball traveled down the first-base side. Most spectators would’ve duck. Who wants to get hit by a foul ball, right? Zlotnick didn’t. He never had chance to do so. With the umbrellas blocking his vision, he couldn’t see the scorching foul ball coming towards him.
The foul ball crushed the bones around Zlotnick’s left eye socket. His upper jaw and sinus were also fractured. He suffered extensive damage to the side of his face.
According to Zlotnick, the Yankees agreed to pay his medical bills for the injury he suffered. The Yankees have denied that claim. In 2012, Zlotnick sued the Yankees and Major League Baseball for his injury. He wanted two things: $25,000 to cover his injury and the Yankees to change its umbrella policy.
Assumption of the Risk
Assumption of the risk arises when a person knowingly and voluntarily agrees to the risk of harm connected to someone’s negligence. Let’s say a fan buys a ticket to a baseball game. The fan assumes the risk of getting injured at that game. He knows a fly ball could hit him or a baseball bat could fly from a player’s hands. So he takes his chances just to see a baseball game. If his eye socket is crushed by a fly ball, tough luck.
To prove assumption of the risk defense, a defendant in a case shows:
- The Plaintiff Had Actual Knowledge of the Risk
Teams like the Yankees print on the ticket given to fans that the bearer of the ticket assumes all risk and danger connected to the game. This shows the fan knows about the risks associated with watching the game.
- The Plaintiff Implicitly or Explicitly Voluntarily Accepted the Risk
Teams always point to the assumption of the risk clause in the ticket. By presenting the ticket to get into the game, the fan is implicitly accepting the possibility of getting injured.
Last Clear Chance Doctrine Invalidates Assumption of Risk
The Last Clear Chance Doctrine is known as a defense to the defense. The doctrine allows a plaintiff who contributes to a negligent act that injuries him to recover damages. This law invalidates assumption to risk because the defendant had the last opportunity to avoid causing damage.
This is how the doctrine operates: The plaintiff negligently enters the area of danger from which he can’t extricate himself. The defendant has the last opportunity, or last clear chance, to prevent harm the plaintiff would otherwise suffer.
Let’s say a baseball fan voluntarily accepts the risk of being injured at a baseball game by attending the game. That doesn’t let the baseball team off the hook. It still has the final opportunity to avoid harming the baseball fan. A better way to show how the Last Clear Chance Doctrine invalidates assumption of risk is with the Zlotnick case. The elements that must be proven to successfully use the last clear chance doctrine are:
- The Plaintiff Placed Himself In the Zone of Danger
On Zlotnick’s Yankee ticket was the warning about accepting the risk of injury. This would be contributory negligence because of the risk to injury. He placed himself in the area of danger by sitting in the ballpark during the game and risk injury.
- The Plaintiff Couldn’t Avoid the Danger
Zlotnick sat in the third row. During the rain, other spectators opened their umbrellas to shield themselves from the rain. Zlotnick couldn’t avoid the danger of getting hit with a foul ball.
- The Defendant Recognized the Dangerous Situation and Had a Duty To Avoid It
The Yankees and MLB recognized the dangerous situation. Spectators could get hit with a foul ball or flying baseball bat being that close to the playfield. It’s obvious the defendants knew because it placed the warning about not being liable for any potential injury on the ticket.
- The Defendant Failed To Avoid The Danger Despite Having An Opportunity To Do So
Both the Yankees and MLB failed to avoid the danger despite having an opportunity to avoid it. They permitted fans to hold up umbrellas during a game which shielded other spectators from knowing about imminent danger of getting hit with a foul ball. The game continued even though it would have been stopped if the same weather conditions occurred earlier in the season. Also, they knew spectators can be injured during games, but have not done an adequate job to prevent injuries from occurring.
- As a Result of Defendant’s Behavior, the Plaintiff Is Injured
Since the Yankees and MLB did not take steps to avoid the danger, Zlotnick was injured.
The ultimate high for a sports fan is to enjoy watching a game live. That ultimate high shouldn’t result in a huge low of suffering an injury while watching the game. Sports teams like the Yankees shouldn’t rest on assumption of the risk defense. They should do something about preventing injuries to fans.
Authored by Taelonnda Sewell, LegalMatch Legal Writer
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