Ingersoll v. Onondaga Hockey Club, Inc. , 245 A.D. 137 ( 1935 )

Heffernan, J.

In his opinion Mr. Justice Rhodes has made a correct, accurate and concise statement of the facts in this case and repetition is unnecessary

It seems to me that the evidence presents no question of fact and that the learned trial judge was correct in dismissing the complaint. The authorities are all agreed that the owner or proprietor of a public place of amusement or entertainment is not the insurer of the safety of his patrons but owes to them only the duty of reasonable care. Our conclusion is that the duty which respondents owed to appellant is to be measured by the standards of ordinary care. It is the well-settled general rule that the proprietor of a place of amusement is not an insurer of the safety of his patrons, nor is his undertaking so similar to that of a common carrier of passengers as to call for the application of the same rule of responsibility. He is bound to exercise only the degree of care that would be expected of an ordinarily careful and prudent person in his position, and his duty is fulfilled when he makes the place as little dangerous ' as such a place can reasonably be made, having regard to the contrivances necessarily used in conducting such a place. The question whether the proprietor of a place of amusement has exercised reasonable care is to be determined with regard to the character of the exhibitions given and the customary conduct of spectators who witness them; and the acts of spectators injured in such place must be judged according to the conduct which ordinarily prudent people show under like circumstances. (26 R. C. L. 714.)

The rule is equally well settled that a spectator at a baseball game assumes the risk of being struck by a foul or wild-thrown when sitting elsewhere than behind the screen back of home plate. A spectator at a baseball game may be regarded as assuming such risks from balls as are necessarily incident to the game. Thus it is said in Blakeley v. White Star Line (154 Mich. 635; 118 N. W. 482): “ It is knowledge common to all that in these games hard balls are thrown and batted with great swiftness; that they are liable to be muffed or batted or thrown outside the lines of the diamond, and visitors standing in position that may be reached by such balls have voluntarily placed themselves there with knowledge of the situation, and may be held to assume the risk.” In Crane v. Kansas City Baseball & Exhibition Co. (168 Mo. App. 301; 153 S. W. 1076), in denying a recovery for injury by a foul ball, where a patron had the choice of sitting in the grand stand behind the screen, or outside in the open, and chose the latter, the court said that doubtless for the purpose of avoiding the annoyance of the slight obstruction to vision offered by the netting, the plaintiff voluntarily chose an unprotected seat, and thereby assumed the ordinary risk of such position, and, if it could not be said that he assumed the risk, still he should not be allowed to recover, since his own contributory negligence was apparent and indisputable; that one invited to a place, who is offered a choice of two positions, one of which is less safe than the other, cannot be said to be in the exercise of reasonable care if, with full knowledge of the risks and dangers, he chooses the more dangerous place. In Kavafian v. Seattle Baseball Club Assn. (105 Wash. 215, 219; 177 P. 776; on rehearing 181 P. 679) it was held that one familiar with baseball, who, instead of taking a seat in the grand stand, protected by a screen, to which his ticket entitled him, took a seat outside of the screened area, was guilty of contributory negligence, or assumed the risk, so as to be precluded from recovery for injury through being struck by a foul ball. There the court said: “ Conscious of the fact that balls are often hit ‘ foul,’ and that wild throws sometimes result in the ball falling among the spectators, and conscious of the fact that there was no protection between the balls and himself, he continued to occupy a seat in that unscreened portion until he received his injury. It matters not whether one designates his act in this regard contributory negligence, or views it as in the nature of assumption of risk, the result is the same. The place in which he could have taken a seat would have fully protected him against the ordinary and usual hazards incident to witnessing the game in question, but he chose to sit elsewhere and substitute for that safety the compensating facility of vision. If there was a chance of danger, the respondent voluntarily took it. Having purchased a ticket which offered him a choice of two positions, he with full knowledge of the risk of injury, chose the more dangerous position.”

It seems to me that appellant in attending a hockey game occupied precisely the same status as a spectator at a baseball game and that the same rules should be applied in each instance. There was no obligation on the part of respondents to protect appellant against a danger incident to the entertainment which any reasonable spectator could foresee and of which she took the risk. The risk of being hit by a baseball or by a puck at a hockey game is a risk incidental to the entertainment and is assumed by the spectators. Any other rule of law would place an unreasonable burden upon the operator of a ball park or hockey rink. In witnessing this game appellant assumed the risk of the puck going among the spectators. It is common knowledge that the puck may leave the ice when the players are shooting for a goal. There were screened areas in this Coliseum back of the goals. Sitting where she did with her escort, appellant assumed the risk. Had she desired to protect herself from that risk she could have done so by selecting a seat in the screened area away from the ringside. Evidently she selected the seat which she did in order that she might see every movement of the players. It is argued that this was the first time she had ever attended such a performance. That does not change the rule of liability so far as respondents are concerned. Certainly it was not incumbent upon them to make inquiry of each patron on entering the premises as to whether or not he or she had ever witnessed a like performance.

In Rich v. Madison Square Garden Corp. (149 Misc. 123; affd., 241 App. Div. 722) the court held that plaintiff, who was injured by a flying hockey stick, was not entitled to recover on the ground that it was not foreseeable that a hockey stick would leave the player’s hands and pass among the spectators.

In a case identical with the one under consideration, Hammel v. Madison Square Garden Corp. (156 Misc. 311) plaintiff occupied a ringside seat at a hockey game and was injured by a flying puck. The trial court submitted the case to the jury. The Appellate Term reversed plaintiff’s judgment and dismissed the complaint holding that the rule announced in the baseball cases controlled.

Appellant cites many cases in her brief to support her claim that there is a question of fact for the jury. It is unnecessary to analyze these cases. They are all distinguishable.

The judgment should be affirmed, with costs.

Hill, P. J., and Bliss, J., concur; Rhodes, J., dissents, with an opinion, in which McNamee, J., concurs.