Tuesday, November 12, 2002
Hockey Team Not Liable to Spectator Hit by Flying Puck, C.A. Rules
By KENNETH OFGANG, Staff Writer/Appellate Courts
The assumption of risk doctrine bars a spectator hit by a flying puck at a professional ice hockey game from recovering damages from the host team, league, or arena management, the Court of Appeal for this district has ruled.
The risk of being hit by a puck is inherent in the activity of watching hockey, Justice Reuben Ortega wrote for Div. One in an Oct. 9 opinion certified Friday for publication. So is the risk of having one’s view obstructed by spectators, thus increasing the possibility of being struck, he concluded.
The decision affirms a judgment in favor of the Los Angeles Kings, the National Hockey League, and the owners of the Great Western Forum. Los Angeles Superior Court Judge Lois Anderson Smaltz granted a nonsuit at the beginning of trial on Holly Ann Nemarnik’s action for negligence and premises liability.
Nemarnik, who settled with Staff Pro, Inc., the security company for the Forum, alleged that she was injured during warm-ups prior to an April 1999 game. Nemarnik said she was in her season seat, in the fourth row, but that she could not see the on-ice activity because an unusual number of people were congregating in front of her and the ushers did not ask them to move to their seats.
She claimed to have been hit in the face and mouth and severely injured, by a puck that she did not see come off the ice.
The plaintiff argued that the failure of the defendants to keep the area clear of spectators substantially increased the risk of injury. She offered the testimony of a crowd control expert who said the defendants failed to observe proper procedures, breaching the ordinary standard of care for ice hockey rinks.
But Ortega noted that California courts have long been skeptical of liability claims by spectators injured by flying bats or balls at baseball games. Hockey pucks, he concluded, should be accorded the same treatment as baseballs.
The justice acknowledged that two Court of Appeal decisions, from the 1930s and 1940s, questioned whether spectators watching the then-unfamiliar game of ice hockey could be expected to know of the dangers of being hit by a puck. Hockey, however, “has grown in popularity both in California and nationally” over the past 50 years, Ortega pointed out, and the risk of being hit by the puck is now widely recognized.
California has been represented in the National Hockey League since 1968, when Los Angeles and Oakland were awarded expansion franchises. Although Oakland’s Golden Seals later moved to Cleveland, teams in Anaheim and San Jose have been added in recent years.
Prior to 1968, California’s only pro hockey teams were minor pro or senior amateur operations with sparse attendance. Los Angeles teams included the Blades, who played in the Western Hockey League from 1961 to 1965; the Monarchs of the Pacific Coast Hockey League, who played from 1945 to 1950; two members of the California Professional Hockey League—the Richfields, who played in the 1927-28 season; and the Millionaires, who operated in 1930-31—and the Canadiens, who played from 1957 to 1961 in the amateur California Hockey League.
Ortega rejected the contention that the defendants had a duty to protect the plaintiff from “the risk of people with bad tickets sneaking down close to the ice, blocking spectators’ views, and not being removed by security/ushers.”
The justice wrote:
“Obstructions of view caused by the unpredictable movements of other fans are an inherent and unavoidable part of attending a sporting event. Views are blocked whenever fans spontaneously leap to their feet or move to and from their seats.”
Linking poor crowd control to Nemarnik’s injury, he added, “would be purely speculative.” The plaintiff, he concluded, “was not injured because of poor crowd control, but due to an integral aspect of ice hockey—flying pucks.”
Ortega distinguished Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, in which the court said a patron injured by a foul ball raised a triable issue as to whether the home team was negligent in allowing a mascot with a protruding costume tail to distract spectators while the ball was in play.
The Lowe court held that while foul balls were an inherent aspect of baseball, the “antics” of a costumed mascot were not. But that case is unlike Nemarnik’s, Ortega wrote, because “[n]o one in defendants’ employ had distracted or caused plaintiff to turn away from the ice.”
Attorneys on appeal were Encino sole practitioner Martina A. Silas for the plaintiff and Patrick M. Kelly, Steven R. Parminter and Shanel K. Yang of Wilson, Elser, Moskowitz, Edelman & Dicker for the defendants.
The case is Nemarnik v. Los Angeles Kings Hockey Club, L.P. B150794.
Copyright 2002, Metropolitan News Company