By Carla Varriale
Venue owners and operators are
often armed with defenses, such as assumption of the risk, in negligence
actions that are brought by spectators injured by errant baseballs and
flying pucks. Spectators, however, may not consent to reckless or
intentional conduct by other spectators.
When spectators injure other spectators under these circumstances, the
exculpatory language set forth on the spectator’s ticket may be void and
against public policy. To assess and prevent potential liability, a prudent
venue owner or operator should understand the underlying legal concepts.
With this understanding, an effective security program and enhanced risk
management strategies can be developed. This can diminish the potential
exposure of a venue owner or operator, and at the same time, support the
defense of negligence actions brought against him.
A negligence action requires proof of a duty owed, a breach of that duty and
damages proximately flowing from that breach. In the context of whether a
venue owner or operator is liable when one spectator negligently or
intentionally harms another spectator, a court will consider whether it had
a duty to protect the spectator, whether it breached that duty and whether
the breach of the putative duty was the proximate cause (or “substantial
factor”) in bringing about the alleged damages.
Spectators are “business invitees” — i.e., persons invited to the premises
for a mutually beneficial purpose. Concession vendors, media personnel and
field entertainers have been classified as “spectators” for the purpose of
determining liability. See e.g. Gallagher v. Cleveland Browns Football Co.,
638 N.E.2d 1082 (Ohio Ct. App. 1982): Television station videographer —
injured at a football game when a player ran into him — was held to be a
spectator who assumed the risk of injury.
vendors, media personnel and field entertainers have been classified as
‘spectators’ for the purpose of determining liability.”
The duty of care owed to business invitees is known as reasonable care under
the circumstances. This standard is deceptively simple: Although the
possessor isn’t an insurer of a spectator’s safety, the possessor has a duty
to exercise reasonable care if the possessor knows, or should have known, of
a potentially dangerous condition. See e.g. the Restatement (Second) of
Torts (1965) (the “Restatement”), Sections 343 and 343A, regarding the duty
of care owed to business invitees. When a spectator harms another spectator
through his or her violent conduct, this standard can become a fine (and
sometimes confusing) line.
What Is Foreseeable?
The primary inquiry is what is foreseeable under the circumstances. Although
the courts have articulated several “tests,” such as whether there is
evidence of prior similar acts, forseeability essentially boils down to
whether the owner or operator could have anticipated the violent conduct
(although it need not have foreseen the exact conduct at issue).
Whether an unruly spectator’s conduct was foreseeable is grist for the
litigation mill. For example, when spectators scrambled to catch a foul ball
at a baseball game and injured another spectator, a court determined that a
premise owner or operator may be liable for a failure to take steps to
protect the injured spectator.
See Lee v. National League Baseball Club, 4Wis.2d 168, 89 N.W.2d 811, 816
(1958): Question presented whether defendant failed to take appropriate
measures to restrict the conduct of spectators who trampled plaintiff. Also
see Hayden v. University of Notre Dame, 716 N.E.2d 603, 607 1999 Ind. App.
Lexis 1697: University owed plaintiff a duty to take reasonable steps to
protect her from injury due to actions of other fans attempting to retrieve
Also see Telegra v. Security Bureau, Inc., 719 A..2d 372, 376 (Pa. Super.
1998), appeal denied, 560 Pa. 687, 742 A.2d 676 (1999): Court declined to
apply “no duty” rule where a spectator was attacked by other spectators who
sought a souvenir ball in the end zone because being attacked by an unruly
mob at a football game was not an inherent risk associated with the
However, see Maheshwari v. City of New York, 2N.Y.3d 288, 810 N.E.2d 894,
778 N.Y.S. 442 (2004): Negligence action dismissed because, among other
things, the random and unprovoked attack in parking lot outside of concert
was not a foreseeable result of a purported security breach.
Minimizing Your Risk
Sports, recreation and entertainment
“Sports, recreation and entertainment venues are fertile ground for
potential negligence actions.”
venues are fertile ground for potential negligence actions. A venue operator
or owner should comprehend the sort of risks that are known (or should have
been known in the exercise of reasonable care) and minimize them to avoid
cases discussed here highlight the need for effective risk-management
strategies, including an assessment of the spectrum of risks presented,
providing adequate warnings and, significantly, deploying a properly trained
security presence. A venue owner or operator should also consider
risk-shifting or risk-spreading mechanisms such as insurance coverage and
contractual agreements. These mechanisms should be analyzed in conjunction
with insurance professionals and counsel.
When a negligence action as a result of a spectator’s unruly conduct is
unavoidable, the underlying facts and the applicable law will dictate the
litigation strategy. Both should be thoroughly analyzed. If an assumption of
the risk defense is not viable, a venue owner or operator can still pursue
potentially dispositive defenses regarding the elements of forseeability and
causation. When it comes to avoiding or defending a negligence action
arising out of the actions of spectators, a reasonably prudent venue owner
or operator should not assume anything.
Varriale is a partner with the law firm of Havkins Rosenfeld Ritzert &
Varriale, LLP, which has offices in New York City and Long Island. She has
successfully defended premises liability matters on behalf of national and
local sporting and recreational venues as well as litigated several high
profile cases for professional and minor league sports teams. To reach
Varriale, e-mail her at