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In its first attempt to define the duty of care owned to spectators at a soccer tournament, an appellate panel in Albany has held that the assumption of risk doctrine applies not only to active observers, but to bystanders as well. The New York Appellate Division, 3rd Department also questioned whether an errant kick of a soccer ball by a 16-year-old youth could constitute negligence. The case involved a man who was not watching a soccer match, and a teenager who was not playing in a game when he kicked the ball. Sutton v. Eastern New York Youth Soccer Association Inc. Records show that D. James Sutton was attending a soccer tournament in 1999 and had just watched one of his son’s games. He walked past another field where several players from a rival club were warming up. His son’s team had a tent set up 30 or 40 yards behind the goal to provide a shady resting place for the players when they were not on the field. Sutton contends he was getting a sandwich out of a cooler when a practicing player kicked the ball. The ball missed the goal and struck Sutton in the chest, knocking him off his feet, and he injured a knee, he said. He sued the league and the player. Supreme Court Justice James B. Canfield of Troy, N.Y., granted the defendants’ motion for summary judgment in an opinion affirmed Thursday by a unanimous appellate panel. On appeal, Sutton argued that he could not assume the risks of watching a soccer match when he was not watching a soccer match and, in fact, there was no game to watch. Writing for the court, Justice Edward O. Spain said Sutton’s presence at the tournament rendered him a voluntary spectator. Lacking any precedent on the duty of care at soccer matches, the court looked to another sport, baseball, for guidance. The Court of Appeals in Akins v. Glens Falls City School District, 53 NY2d 325 (1981) said there is always some risk that a spectator at a baseball game will get hit with a ball. Protective screening behind home plate is sufficient and owners of baseball parks need not also install fences along the baselines or shield the walkways to rest rooms and other facilities, the court said. Sutton did not claim that the soccer league was under any obligation to provide protective screening along the sidelines. But he did contend that the team, by erecting a tent in the vicinity of the goal line, essentially invited him to stand in an unsafe place. The court said that Sutton’s decision to leave the sidelines and walk to the tent to get a sandwich is similar to a baseball fan who gets up to go to the bathroom. Justice Spain wrote: “Just as the owner of a baseball park is not responsible for the spectator who leaves his or her seat and walks through a potentially more hazardous zone to reach a bathroom or concession stand, thereby assuming the open and obvious risk of being hit by a ball, defendants here cannot be held responsible for the risk assumed by plaintiff when he, aware that players were active on the field, left the sidelines and stood in the tent positioned in an arguably more dangerous zone behind the goal line.” The court found no evidence the youth acted recklessly and, quoting precedent, questioned “whether it is ‘even arguably negligent’ for youngsters participating in sporting events to make an errant throw or kick.” Sutfin v. Scheuer, 145AD2d 946 (1988). Also on the panel were Justices Thomas E. Mercure, Karen K. Peters, Anthony J. Carpinello and Anthony T. Kane. Matthew J. Kelly of Roemer, Wallens & Mineaux of Albany appeared for the defendants. James R. Peluso of Dreyer Boyajian in Albany represented the plaintiff.

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