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Nov 22 2015

Lawsuit Against Yankees Over Foul Ball Won’t Score

On August 25, 201, NY real estate executive Andy Zlotnick took his three kids to see the NY Yankees play the Oakland Athletics in Yankee Stadium. He was three rows off the field about 50 feet away from fist base. It was a rainy day and the game had been delayed but was now in progress. It started to drizzle again and people began putting up umbrellas. Former Yankee slugger and fan favorite Hideki Matsui was now with the A’s and was up at bat. He drilled a foul ball into the stands. Mr. Zlotnick, in part because of the umbrellas obstructing his view and in part because of the speed of the ball and the proximity of his seats never saw the ball coming in his direction. It hit him square in the face, shattering the bones around his eyes and causing him a serious permanent injury to the left side of his face.

After he got out of the hospital and was beginning to recover, Zlotnick called Randy Levine, the president of the Yankees Organization. Zlotnick told Levine that a two teams had policies forbidding umbrellas in the stands and that eight others only allowed their use during active rain delays.
He also told Levine that he had about $25,000 in uncovered medical expenses. Zlotnick claims Levine promised to reimburse him the $25,000 but that when Levine later reneged on the promise he filed suit. His claim is that the allowance of umbrellas heightened the risk of injury. While I feel very sorry for Mr. Zlotnick, I predict he will lose due to the law in NY State about such cases.

Read the fine print if you can

Read the fine print

The first hurdle is the disclaimer on the back of every Yankee ticket (and every MLB ticket for that matter). Take a look at these tickets from 1942 – That disclaimer proclaims (although in very small type) that “the bearer of the ticket assumes all risk and danger incidental to the sport of baseball.” The disclaimer has gotten even longer on modern tickets. Courts have routinely held up this language as a valid disclaimer and have relied upon it to throw out many a case against baseball teams. That umbrellas were used does not change the fact that Zlotnick assumed the risk. In fact his argument that the Yankees don’t have an umbrella policy hurts his case; if the Yanks had a policy and were not enforcing it then they may be liable, otherwise you assume that risk as well.

The second hurdle is the availability of seats out of harm’s way. Zlotnick chose to sit in an area where foul balls come screaming by on a regular basis. Having sat in similar seats, I can ell you that when someone is at bat, you have to watch at all times because it is obvious that a ball (and even a thrown bat) could come into the stands. You don;t want to get hurt sit in the nosebleeds. You want to sit close and not get hurt, get seats behind the fenced in area around home plate. You choose to sit so close, you are obviously taking a risk of injury.

The third hurdle is that if the suit succeeds, it will change the game. Teams will be forced to put up fencing all along the walls of the field. That will obstruct views, lowering the price for those seats, and eliminating players being able to reach into the stands for a foul ball. No judge is going to want to take the blame for such a major change in the game.

The Yankees have filed a motion to dismiss the case with Judge Lizbeth Gonzalez, who is presiding over the case> The parties have been waiting over a year and a half for Judge Gonzalez to decide the motion. That delay is its own foul ball, especially here, where the law is clear cut. You go to a live sporting event, you run the risk of being injured.

Follow me on Twitter @oscarmichelen

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