In Smero v. City of Saratoga Springs, et. al., plaintiffs’ 10–year old daughter sustained injuries to her head when she was struck by an errant hockey puck that left the ice while she was watching a youth hockey practice at Vernon Rink in Saratoga County.
In their complaint, plaintiffs alleged that defendants failed to install proper safety netting or barriers in the area where the child was injured. After the death of a fan at a hockey game in 2002, the NHL required that all hockey arenas erect safety netting around the glass at both ends of the rink. The defendant moved for summary judgment on the assumption of risk doctrine, but the Supreme Court denied defendants’ motions for summary judgment.
The Appellate Division, Third Department affirmed the lower court decision and determined that the assumption of risk doctrine did not apply to these facts. Under the assumption of risk doctrine, consenting “[s]pectators and bystanders … assume risks associated with a sporting event or activity, even at times when they are not actively watching the event.” However, the Appellate Division held “notwithstanding a spectator’s assumption of risk, an owner or occupier of land remains under a duty to exercise reasonable care under the circumstances to prevent injury to those who are present.” In the context of hockey rinks, “the owner’s duty owed to spectators is discharged by providing screening around the area behind the hockey goals, where the danger of being struck by a puck is the greatest, as long as the screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire to view the game from behind such screening.”
The Appellate Division noted that at the time of the incident, two separate hockey practices were ongoing, and, to accommodate this, the hockey goals were set up in a cross-rink fashion to allow both practices to use the hockey rink at the same time. Thus, the goals were repositioned across the width of the ice rink instead of at the ends of the rink where they are normally situated. Plaintiff’s expert engineer opined that placement of the hockey goals in a cross-ice fashion on the sides of the rink and “directly in front of an area of the rink with a significant gap in the protective screening [ ] created the significant likelihood that a puck traveling at high velocity would leave the playing surface, placing spectators … in danger of injury.”
The Appellate Division held that the change in position of the goals and the possibility that pucks could more readily go into the stands from the changed position led to a question of fact to deny defendants’ motions for summary judgment.
Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information.