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A fan struck by an errant baseball while buying a beer can cry foul, the New Jersey Appellate Division ruled last week. Narrowing the assumption-of-risk doctrine that limits suits by patrons injured at sports venues, the court held that stadiums must provide protection for fans not in their seats watching the game, such as those at concession stands. “It is not only foreseeable, but inevitable, that in the process of placing orders or reaching for money or accepting the purchases or striking up conversations with others on line, spectators will be distracted from the action on the field and the risk of injury from flying objects will be increased significantly,” Judge Rudy Coleman wrote for the court in Maisonave v. Newark Bears, A-4144-02T3. The judges reversed summary judgment dismissing a suit by Louis Maisonave, of Newark, who was injured on Aug. 26, 1999, during a Bears baseball game at Newark’s Riverfront Stadium. Maisonave was paying for a glass of beer from a Gourmet Dining Services vendor in the mezzanine when someone yelled, “Look out!” Maisonave looked up and a foul ball ball struck him in the eye. He sustained a fractured orbital bone. Maisonave sued the Bears and Gourmet Dining, claiming they owed him a duty of care that was breached by failure to provide some protection for spectators who are not watching the game. Maisonave relied on the Appellate Division’s earlier ruling in Schneider v. American Hockey and Ice Skating Inc., 342 N.J. Super. 527 (App. Div. 1999), which held that commercial stadium operators must provide protection in the most dangerous areas of the grandstands, such as behind home plate in baseball and behind the goal nets in hockey. But despite this limited duty of care Schneider generally followed the rule of Crawn v. Campo, 136 N.J. 494 (1994), that “many spectators choose to ‘assume the ordinary risks’ of being struck by a flying ball or puck in order to obtain an unobstructed view of the playing field and that these are ‘common and inherent’ risks of attending a baseball or hockey game.” The motion judge thus found Schneider inapplicable to Maisonave’s injury, which occurred in a mezzanine area. But Coleman, joined by Judges Sylvia Pressler and Lorraine Parker, said that was too narrow an interpretation. “When we said that [the limited duty to spectators] ‘may be satisfied by the operator providing screened seats behind home plate in baseball and behind the goals in hockey[,]‘ our identification of those locations was not intended to be exhaustive nor immutable,” Coleman said. “Rather, the measure of that duty is ‘due care under all the circumstances.’” On the day of the injury, the vending carts at the still-under-construction stadium were placed so that the customers could face the field and continue to watch the game, and some were positioned in unscreened areas where patrons were vulnerable to injury by foul balls. “While watching the game, either seated or standing in an unprotected viewing area, spectators may reasonably be expected to pay attention and to look out for their own safety; but the activities and ambiance of the concession area predictably draw the attention of even the most experienced and the most wary fan from the action on the field of play,” Coleman wrote. The team and the vendor “have a concomitant duty to exercise reasonable care to protect them during such times of heightened vulnerability.” James Horan, the lawyer representing Gourmet Dining, says the extension of Schneider could lead to greater liability for stadium owners and vendors, especially since the Appellate Division’s ruling left unanswered what the Bears and Gourmet Dining should have done to protect Maisonave from getting hit by the foul ball. “That’s a real good question,” says Horan, adding that the issue was discussed during oral arguments in January. “How far do we go with this?” Gourmet Dining has filed an appeal with the state Supreme Court, says Horan, of West Orange’s Mautone and Horan. The Bears’ lawyer, Timothy Schipske of Marlton’s Rawle and Henderson, did not return calls seeking comment.

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