Modifying a sports facility to maximize its use may make immediate sense from a time-efficiency or revenue-generation standpoint, but it can prove costly if deviation from standard practice leads to injury. One such example involved repositioning hockey goals in a way that a rink could be divided into two practice areas, but at the same time leaving spectators insufficiently protected from errant pucks, as examined in Smero v. City of Saratoga Springs, 2018 N.Y. Slip Op. 75633 (N.Y. App. Div. 2018).
In 2014, 10-year-old Rachel Smero was watching a youth hockey practice at a publicly owned hockey rink in Saratoga Springs, N.Y., when she was struck by an errant puck that left the ice, causing her to incur permanent brain damage. Specifically, a collegiate hockey player who was volunteering at the practice sent a wrist shot toward a goal positioned along the side of the rink. The puck accidentally sailed over the goal and Plexiglas where a door to the ice is located, striking Smero.
At the moment of the incident, Smero was walking down a ramp on the side of the rink behind the goal, which was not positioned in the typical end-line location it would have been for a traditional game or practice. Instead, two practices were occurring simultaneously, so the goals were positioned in a cross-ice manner spanning the width of the rink. Despite this configuration, the volunteer explained that no one instructed him not to take shots at the goals.
As a result of the incident, Smero's parents filed a negligence lawsuit against the rink's owner/operator, the City of Saratoga Springs. Plaintiffs alleged that the city was negligent by failing to install proper safety netting or barriers in the area where Smero was injured, failing to construct and/or maintain the rink in a safe manner, and failing to supervise, control and maintain activities occurring on the ice.
Assumption of risk
The city moved for summary judgment based on Smero's assumption of risk — a motion that was denied by the first-level court in New York. The Supreme Court, Appellate Division also denied the motion for summary judgment, allowing the case to proceed to trial.
At trial in August 2018, a jury awarded Smero $1.6 million for the injury she suffered. However, that award was reduced by 24 percent, to $1.22 million, noting that she assumed risk by going to the city-owned rink. Thus, the assumption-of-risk doctrine served to reduce the damage award but did not absolve the city of liability.
As noted by the court, it is well established that an owner/operator of an athletic facility is not an insurer of the safety of its spectators. Consenting spectators and bystanders assume the risks associated with attending a sporting event, even when they are not actively watching the game. However, it is also well-established legal precedent that a plaintiff does not assume the risks of reckless or intentional conduct, or risks that are concealed or unreasonably increased.
Regarding hockey, well-established case law precedent in New York states that the owner/operator's duty is to provide screening around the area behind the hockey goals, where the danger of being struck by a puck is greatest, as long as the screening is adequate to provide protection to the reasonably anticipated number of spectators who desire to sit behind the screened area.
The city's motion for summary judgment was premised on the argument that safety measures at the rink were compliant with industry standards, and that Smero assumed the risk of being struck by a hockey puck while present at the practice. The city submitted photographic and documentary evidence describing the rink's safety features, along with the details of the incident itself, including acknowledgement that the goals had been repositioned to accommodate simultaneous practices using the width of the rink.
Short of industry standards
While the city further acknowledged that the area where the hockey puck left the ice did not have netting, it stated that the rink was entirely surrounded by 4-foot-7-inch-tall dasher boards topped by Plexiglas panels. On the sides of the rink, where the goals were positioned on the day of the incident, the Plexiglas panels measured 3 feet in height, whereas the Plexiglas panels at the ends of the rink, where goals are traditionally placed, stood 6 feet tall. Moreover, there was protective netting at the rink's ends, where goals are traditionally positioned.
Plaintiffs opposed the city's motion for summary judgment by arguing that the barrier system at the ice rink in question failed to comply with industry standards used to protect spectators, and that the risk of being struck by a puck in an area behind repositioned hockey goals could not have been reasonably assumed by Smero. Specifically, an engineer with significant experience in ice rink design testified that placing hockey goals in a cross-ice fashion, directly in front of a distinct gap in the rink's protective screening, creates a significant likelihood that a puck could leave the playing area, increasing the risk of injury to spectators. The expert witness emphasized that by repositioning the hockey goals, the city created a "potential trajectory for hockey pucks" not reasonably anticipated by spectators at the practice.
Upon review of evidence presented, both the initial and appellate courts found that Smero presented sufficient evidence of a triable issue of fact regarding the risk created by the city when repositioning the hockey goals. As noted, the jury trial resulted in liability for the city, and a seven-figure damage award.
Misplaced reliance on AOR
This case provides an excellent example for facility owner/operators regarding misplaced reliance on the assumption-of-risk theory. While assumption of risk does provide protections to owner/operators in some instances when spectators are harmed, the theory does not protect against liability when risks are unreasonably increased by the facility owner/operator.
By choosing to conduct multiple practices at the same time and repositioning the hockey goals in a cross-ice fashion, the city unreasonably increased the risk that a spectator would be injured by an errant puck leaving the field of play. The city was clearly aware of the need for protective netting behind the hockey goals for when the rink was used in the traditional way, with only one practice occurring at a time. The city's decision to modify the rink for simultaneous use by two teams effectively nullified the safety protocols that were present at the rink.
Facility owner/operators are routinely faced with challenging decisions related to facility use. Often, temporary facility modifications allow for expanded use, and potentially increased income. However, modifying a facility to use it in a way that deviates from safety protocols or standards of practice for a particular sport or activity could unreasonably increase the risk of harm to participants and non-participants, including spectators, thus increasing the potential for liability.
Best practice and well-established legal precedent suggest that facility owner/operators must consider any potential impact on safety protocols prior to a temporary facility modification.
Kristi Schoepfer-Bochicchio is chair of the Physical Education and Sports Performance Department at Winthrop University and executive director of the Sport ∓ Recreation Law Association.
This article originally appeared in the April 2019 issue of Athletic Business with the title "Temporary facility modification thwarts assumption-of-risk defense." Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.