Were Mets Liable to Seriously Injured Fan?
Alexander Swanson was severely injured in an incident that occurred while he was in the stands as a spectator at a New York Mets baseball game at Citi Field ballpark in Queens New York operated by several entities (for convenience, the “Mets”).
Swanson sued the Mets. After discovery was completed, the Mets moved for summary judgment dismissing the complaint. In support of the motion, the Mets submitted Swanson’s deposition transcript, two affidavits from directors at Citi Field, and an affidavit from Dr. David L. Gushue, Ph.D., a biomechanical engineer who investigated the facts surrounding Swanson’s accident.
At his deposition, Swanson testified that he was injured during a promotional “t-shirt launch” event at Citi Field — where tightly rolled t-shirts were launched into the stadium stands from air cannons–also called “guns”) held by the Mets’ employees on the baseball field. Swanson stated at his deposition that, during the launch of one specific t-shirt, he was hit in his right eye while standing on the bottom stair of Section 301 of the Citi Field stadium stands. And also testified that:
• he had been going to Citi Field (previously called Shea Stadium) his “whole life” and had attended approximately 100 games and “more than 20” t-shirt launch events prior to his accident,
• he had never felt in danger when witnessing past t-shirt launch events, and he had never viewed a t-shirt launch event to be a “dangerous activity,”
• on the day of his accident, he had been sitting in the second tier of the right field on the Pepsi Porch, but he left his seat and walked down “approximately ten rows” to try to increase his chances of catching a t-shirt,
• when he saw t-shirt launch events in the past, the stadium personnel launching the shirt would aim the air cannon at “maybe 80 or 90 degrees” or a “70- to 85-degree angle . . .” but on the day of the alleged accident, Swanson testified that a t-shirt was shot from “more of a 20— to 25— degree angle,” or “between a 25- and maybe 35-degree angle,”
• Swanson “estimated[d] that there w[ere] 40 feet . . . from [the employee’s] gun to [his] eye,”
• he “was watching [the employee] pretty intently to see where he was aiming the launcher to try to guess where the T-shirt would come down and as the T-shirt was being loaded, [he] noticed [the employee] looking down and [he] noticed the T-shirt launcher pointed pretty much in [his] direction, directly in [his] direction, without much of an angle”. And
• “it seemed as though [the employee launching the shirt] was either off balance or fumbling with the launcher before he shot the T-shirt that struck [him]” and it “seemed as though [that employee] was having a problem either loading the cannon or pulling the trigger or both” as the employee was “looking down at the gun while the cannon was being pointed at [him] at the time the gun was shot”, and
• Swanson “d[id]n’t know how fast [the t-shirt] travels . . . [he] d[id]n’t know how hard it hit [him].”
The Mets also submitted a report by Dr. Gushue, who inspected the site of the accident and conducted accident reconstruction using a dummy and the same model of air cannon as was used when Swanson was allegedly injured. Based on his study, he found that “the distance . . . between the area where the T-shirt was shot from . . . to the first row of the section 301 where the dummy was positioned was 47 feet.” The Mets argued, based on the evidence they submitted, that they did not breach any duty owed to Swanson and they did not have a duty to protect or warn against any condition related to the promotional event, since it was not inherently dangerous and was open, obvious, and readily observable by Swanson. And the Mets relied on the fact that Ssanson testified that he observed the cannon aimed in his direction just before the shirt that allegedly hit him was launched; he had substantial experience participating t-shirt launch events; and any danger presented by the t-shirt launch was open and obvious and readily observable by Swanson.
The Mets also pointed out that, according to the affidavit of Brendan McKeon, Executive Director of In-Game Operations for the Mets, the t-shirt launch event “is one of the common and ordinary promotional events that has been conducted at each and every Mets game since the opening of Citi Field in 2009.” Furthermore, the Mets submitted that, according to Sara Bollock, Senior Director of the Building Command Center, since Citi Field’s opening, she was “unaware of any prior reports, notices, or complaints made by patrons at Mets games concerning prior similar . . . accidents of any kind involving a patron being injured. . . by a T-shirt propelled during a [t]-shirt [l]aunch promotional event . . . .” Based upon the foregoing, in conjunction with the fact that there was a large distance between where the t-shirt was shot from and where it landed and that Swanson never felt in danger during past t-shirt launch events, the Mets argued that the t-shirt launch was open, obvious, and not inherently dangerous, and therefore they did not breach any duty owed to Swanson. The Mets also argued that any danger presented by the t-shirt launch was assumed by Swanson as a legal matter pursuant to the doctrine of primary assumption of risk. Therefore, the Mets argued the complaint should be dismissed in its entirety.
In opposition, Swanson argued that the Mets failed to establish their prima facie case because they failed to eliminate issues of fact regarding their employees’ alleged negligence. And claimed that the Mets breached their duty of care by allowing their employee to negligently fire the air cannon and that negligence caused Swanson’s injury. Swanson argued that his case rested on the alleged intervening negligence and recklessness of the Mets’ employee, who failed to properly secure the t-shirt air cannon and failed to hold his fire when the employee “well knew” that he was off balance, fumbling, and looking down.
Swanson argued that he had presented issues of fact which precluded summary judgment in the Mets’ favor, specifically as to whether he assumed the risk in participating in a t-shirt launch event where a shirt was launched into the stands in an allegedly negligent manner. His submissions included a report, titled “RISK ASSESSMENT OF AIR CANNONS AT SPORTING EVENTS”, which examined “point blank impact[]” where “the target is less than a meter away from the muzzle” of the air cannon. The report defined such impact as “the worst case scenario,” but did not explore other scenarios.
Swanson also submitted his own affidavit, wherein he stated that:
While the cannon was resting on [the employee’s] knee, [the employee] pointed the cannon at [Swanson], pulled the trigger and shot the cannon while [t]he [employee] was still looking down. The T-shirt was thrust straight to [Swanson] and was traveling so fast on a direct line from the air cannon striking [him] in [his] right eye. . . and [he] had no time to protect [him]self from the impact . . . . The [t-shirt was shot] at a straight 20 25-degree angle and the T-Shirt did not travel in an arc projectory.
Swanson’s attorney argued that the Mets and their employee well knew that aiming the air cannon in such a manner would cause Swanson’s injury. And also argued that, contrary to the Mets’ contention, Swanson did not assume any risk in participating in the t-shirt launch because the Mets failed to comply with the applicable standard of care.
Swanson argued that although as a spectator at a baseball game he may have assumed the risk of being hit by a baseball or bat, he did not assume the risk of being hit by a “misfired” t-shirt, since the shirt (that allegedly hit him) exposed Swanson to an enhanced risk of injury beyond the inherent risk in the nature of the sport. And argued that he was not aware there was unreasonable, heightened risk, nor could he have appreciated the nature of the risk of being struck by an allegedly “misfired” shirt, since that risk was concealed. Thus, he argued, not only had [the Mets] failed to make their prima facie case, but he had presented issues of fact in opposition, thereby necessitating denial of their motion.
In reply, the Mets asserted that they had established their prima facie case, and that Swanson failed to raise any issue of fact in opposition. The Mets pointed out that the study cited by Swanson analyzed a scenario entirely different from the one in this case, and therefore, had no application here. The Mets also submitted the rebuttal affidavit of Dr. David Gushue who stated that Swanson’s contention that the t-shirt that hit him was “misfired” from an air cannon oriented at a “20-25 degree angle” was scientifically impossible, and a shirt shot at 20-25 degrees may not have even cleared the outfield fence. Gushue also stated that for the t-shirt to travel in a “direct line” to where Samson was standing (on the first row of the upper deck of section 301), the air cannon had to be oriented at a minimum angle of 62 degrees, from a distance of at least 47 feet, and that “[b]ased on the laws of physics, the velocity of the T-shirt was slowed substantially during the vertical course of it’s travel to the upper right field deck due to air resistance and the effect of gravity during flight.” The Mets also reasserted that Swanson assumed the risk by citing a case where the court found that “plaintiff should have reasonably expected to catch balls with varying trajectories while participating in a [baseball] pop-fly contest”. And argued that Swanson should have reasonably expected that t-shirts could be shot with varying trajectories, especially if he was positioning himself in as direct a position from the launching shot as he thought possible. Thus, the Mets argued that Swanson failed to raise an issue of fact in opposition and dismissal of the case was warranted.
Property owners owe a duty of reasonable care under the circumstances to keep their premises safe. As the proponents of the motion for summary judgment, the Mets had the burden of establishing, prima facie, that they neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remediate..
The Court found that the Mets had established their prima facie entitlement to summary judgment. The record made clear that Swanson was familiar with t-shirt launch events, having participated in over 20 of them and having attended over 100 baseball games at Citi Field where such events were “common and ordinary.” Furthermore, not only was Swanson aware of the way a t-shirt launch event generally took place, but he testified that on this occasion, he “intently” observed the Mets’ employee launching the shirt and intentionally positioned himself directly in front of what he predicted would be the shirt’s path through the air. Therefore, the Mets established that the t-shirt launch event was open and obvious, and not inherently dangerous to Swanson.
The Court also found that Swanson’s claim that the Mets were negligent because their employee was “off balance,” which caused the t-shirt to “misfire” at an angle of approximately 25 degrees (rather than approximately 85 degrees), which in turn caused the shirt to move as a faster projectile than a typical t-shirt launch, which prevented him from having enough “time” to “protect” himself, amounted to nothing more than speculation. While a lay witness may give testimony in the form of an opinion or inference, such testimony is only admissible when the testimony: (a) is rationally based on the witness’s personal perception; (b) is within the ambit of common experience of that of a particular witness; and (c) would be helpful to the finder of fact in understanding the witness’s testimony or in determining a fact in issue, especially when facts cannot be stated or described in such a manner as to enable the finder of fact to form an accurate judgment about the subject matter of the opinion or inference.
Here, Swanson did not explain how he determined the angle of the air cannon, nor did he provide a basis for how he determined that t-shirts shot at a low degree angle (ie. approximately 25 degrees) travel faster than shirts shots at a high degree angle (ie. approximately 85 agrees). In fact, Swanson testified that he did not know in general how fast a shirt (launched from an air cannon) traveled, nor did he know how fast the shirt that hit him had been traveling. Moreover, while Swanson did testify he had attended about 20 t-shirt launches, at no time did he state that he had any experience beyond his case in estimating the angles of projectiles launched from air cannons— nor did he indicate any ordnance experience. And even if the Court was to accept Swanson’s lay witness testimony regarding the physics involved in the t-shirt launch, he failed to indicate that the difference in t-shirt launch angle and thus t-shirt airtime, would have led to a different result (ie. his not being injured).
Swanson testified that he had never caught a shirt at a t-shirt launch event. Therefore, he did not have an experience of handling a shirt launched in his direction against which he might compare the incident. Here, determining from approximately 47-feet away the precise angle of an air cannon is far from a prevalent experience in our society. And participation in approximately 20 t-shirt tosses did not make him a qualified witness. So the Court found that the Mets met their prima facie burden, establishing that they breached no duty to Swanson, as the t-shirt launch was open and obvious, and not inherently dangerous.
In opposition, Swanson failed to raise a triable issue of fact. At the outset, the Court noted that his attorney’s claim that the Mets “well knew that aiming the air cannon at a 20-25-degree angle instead of an 80-90 projected angle . . . would cause [Swanson] injuries” was unsupported by the evidence. The attorney failed to indicate he has any personal knowledge of the facts, and therefore, his comments were insufficient to raise a triable issue of fact. And the Court found that the Risk Assessment Report had no bearing on the case.
The Court was also not persuaded that Swanson raised issues of fact regarding whether he assumed the risk and whether the Mets failed to exercise reasonable care under the circumstances. The doctrine of primary assumption of the risk applied not only to participants in a qualified activity, but also to bystanders or spectators who had placed themselves in close proximity to the event. But Swanson’s accident occurred when he was more than a mere spectator. At the time of the accident, two events were taking place: the t-shirt launch event and the baseball game. Swanson was a spectator at the baseball game, but he was a participant in the t-shirt launch event. His testimony, including that he moved closer to the air cannon and placed himself in what he hoped to be the t-shirt’s direct path, made his role as a participant in the t-shirt launch event clear.
A plaintiff is barred from recovery for injuries which occurred during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law. By voluntarily engaging in a recreational activity, a participant assumes, or consents to, the commonly appreciated risks that are inherent in and arise out of the activity generally, and which flow from the participation. As a frequent attendee at Citi Field games where t-shirt launch events were common and ordinary, and as an approximately 20-time participant in t-shirt launch events, Swanson was familiar with the conditions associated with the launches, including that the t-shirts were not launched at precisely the same angle each time nor to the exact same place in the stands. He should have reasonably expected the shirts would reach the stands after travelling varying arcs and at slightly varying speeds. And the Court noted that Swanson acknowledged he did not have a good “eye on the ball” (or in this case towel), which quite possibly caused him to fail to catch the incoming towel, and that error resulted in his being hit by the launched towel, or as appropriate here, a “hit-by-pitch.” Regardless, Swanson had failed to raise a triable issue of fact.
The Court granted the Mets’ motion for summary judgment and Swanson’s complaint was dismissed in its entirety.