A Manhattan judge has tossed out a negligence action against the Lawyers Athletic League by a former college basketball player who was injured while playing on a team organized by Milberg Weiss Bershad & Schulman.
Devone Stephenson, who is 6 feet 8 inches tall and weighed 218 pounds, contended that during a game on March 1, 2006, he was taunted by nonattorney members of an opposing team and ultimately punched in the face.
According to Paul F. Clark, who represented the athletic league, Stephenson, then 26, was not a lawyer or employed by Milberg Weiss, since renamed Milberg, but the league's rules permitted each 12-member team to contain up to two nonattorneys.
Stephenson had submitted an online waiver form before playing, in which he assumed responsibility not only for his own "actions, inactions or negligence but the actions, inactions or negligence of others." The injured player maintained that the release was not valid under New York law and did not encompass the risk of being hit by an unauthorized player.
However, Acting Supreme Court Justice Paul G. Feinman upheld the validity of the electronic waiver in Stephenson v. Food Bank for New York City, 112870/06.
"The fact that the waiver and release does not expressly mention the possibility of injury resulting from assault by another player, even a player not properly admitted, does not render it invalid," the judge concluded in granting summary judgment in favor of the league.
Stephenson testified during his deposition that he played semi-professional basketball in Germany after having graduated from college in 2000 on a full basketball scholarship.
Stephenson further testified that during a game with a New York Corporate Athletic League team from the Food Bank of New York City, "the whole [Food Bank] team was talking trash and most of it was directed toward me because ... I was the biggest guy on my team and ... the best player ... on the court."
The former college player claimed the trash talk continued during the second half of the game, despite requests from Stephenson and Milberg Weiss' coach that the referees "clean up the game."
Stephenson said he told himself he would let his "game do the talking" and refrained from engaging in any verbal sparring with the opposing players. But after allegedly being fouled four times in a row, Stephenson claimed he heard one of the Food Bank players saying "Yo, big man" at least seven times.
"Next thing I knew, I was getting up from the floor," Stephenson testified.
According to the decision, an apparently unauthorized player on the Food Bank team referred to as "T," who was not an attorney, had punched Stephenson in the face and fractured his jaw.
Stephenson, whose jaw was wired shut as a result, sued the Lawyers Athletic League Inc., the Food Bank for New York City and Food for Survival. He claimed the league had negligently supervised, operated and controlled the game, its league, the referees and the Food Bank team.
But Justice Feinman agreed with the league that the online release prevented Stephenson from holding the league liable for his injuries, even though they may have been caused by an unauthorized player.
"[T]he online release submitted by Stephenson expressly releases the League from injury caused by any negligence by the League and also indicates that the signer assumes the risk and personal responsibility for not only his own 'actions, inactions or negligence but the actions, inactions or negligence of others,'" the judge wrote.
He also disagreed with Stephenson that a roster he signed at the time of the game, which noted that he understood and assumed the risks inherent in playing basketball, superseded the online waiver.
Feinman found no conflict between the online waiver and "the assumption of risk and indemnification provision contained in the roster document."
Leonard Silverman, a solo practitioner who represented Stephenson, declined to comment on the decision.
In addition to Clark, Lora H. Gleicher of Wade Clark Mulcahy represented the athletic league.
A motion for summary judgment by the Food Bank is still pending before Feinman.
Stewart Bernstein of Callan Koster Brady & Brennan represents Food Bank.
Court Tosses Claim by Basketball Player Punched During Lawyers' League Game
Nonattorney player for Milberg Weiss has suit dismissed against lawyers league and Food Bank for New York City
New York Law Journal
October 23, 2008