N.J. Supreme Court Hockey Case Could Redefine Spectator Liability

September 6, 2007

Denise M. Sciarrotta was thrilled with the seats her family had for the minor league hockey game. They were close to the action as they watched players take practice shots.

It was going to be a special night: her 12-year-old daughter was going to sing the national anthem. Then a puck ricocheted off a goal post and slammed into Sciarrotta’s head. Blood poured from a gash above her left temple.

More than four years later, Sciarrotta said she bears a 21/2-inch scar and permanent brain damage from an incident she maintains could have been prevented with proper safeguards.

Her negligence lawsuit could become a landmark case, as the state Supreme Court recently decided to consider if fans have the right to sue for injuries that happened during warmups. A ruling is not expected for about a year.

In New Jersey and many states, sports spectators take a chance when they enter an arena or stadium. No federal law governs spectator injuries due to action on the field, and states generally mandate that fans assume some risk when they go to a game, said Joe Capobianco, a New York lawyer who is not involved in the New Jersey case.

If New Jersey’s highest court allows the puck lawsuit to proceed, “It could be an expansion of liability for sports owners,” Capobianco said. The state Supreme Court made it tougher for baseball clubs in fall 2005, when it sided with a baseball fan who was hit with a foul ball while on line to buy beer.

The added liability, however, was short-lived. Within months of the baseball ruling, the New Jersey Legislature passed a law barring spectators from suing club owners “for injury resulting from the inherent dangers and risks of observing professional baseball ….”

The bill was titled the “New Jersey Baseball Spectator Safety Act of 2005,” although it was the owners that got protection. It was signed into law by former Gov. Richard J. Codey early last year.

Sciarrotta’s case stems from her visit to the Sovereign Bank Arena in Trenton on Jan. 4, 2003. Sciarrotta was there to watch her daughter, Ashley, and her school choir sing the national anthem before a game featuring the Trenton Titans, who are now called the Trenton Devils.

Sciarrotta was seated along the side of the rink, higher than the clear, plastic barrier that encircles the ice.

The sides of hockey rinks are not protected by the netting that shields spectators behind the goals. The NHL and other leagues mandated the nets after an Ohio girl was killed by a puck in 2002.

Alleging negligence in allowing a dangerous condition and failing to provide proper safeguards, Sciarrotta sued the team, the ECHL, and the arena. She and her lawyers don’t know which player shot the puck.

Superior Court Judge Paul Innes in Mercer County dismissed the lawsuit, but it was revived in April by a three-judge appellate panel that relied heavily on the high court’s baseball ruling.

The baseball decision found that fans deserve greater protection in areas of the stadium, such as concession stands, where it is expected they would let their guard down and take their eyes off the game.

In restoring Sciarrotta’s lawsuit, the appellate panel observed that even though she was seated in the spectator portion of the arena, the number of pucks used during warmups posed special dangers. “It seems obvious that even the most experienced and event-devoted spectators would have difficulty keeping track of all those pucks,” the panel wrote.

“A spectator during warm-ups is not so readily able to provide for her own safety, however, and a greater portion of the stands than just the end zones and the corners become the areas of vulnerability,” it added.

Without ruling on the merits of the case, the panel said a jury deserved to answer some questions, including whether there were adequate warnings about dangers inherent in pre-game activities.

“It’s physically impossible to watch every single one at that time,” said Sciarrotta, now 42, of Lawrenceville. “I never saw it coming toward me. I felt like I was shot in the head.”

Despite therapy, Sciarrotta said she has permanent brain damage, including disorganization and memory problems. “Things I used to be very sharp with, and I’m not anymore,” she said.

The defendants appealed, and the state Supreme Court agreed this summer to hear the case.

The defense lawyer, Scott D. Samansky, believes the appellate ruling improperly departed from the reasoning in the baseball case.

“It would seem, under that theory, nobody can be in the stands during warmups,” Samansky said.

His position got some reinforcement last week, when a state appellate panel upheld the dismissal of a lawsuit filed by a baseball spectator who was hit in the shoulder by a ball thrown during warmups.

If the Supreme Court ultimately orders a trial in the Sciarrotta case, the defendants would maintain they took appropriate safety steps, Samansky said.

As for the baseball case, although the state Supreme Court gave the green light, it never went to a jury. Louis Maisonave, who was hit by a foul ball at a 1999 Newark Bears game, settled on the eve of trial in 2006. Terms were confidential.

Meanwhile, Sciarrotta said she was ultimately able to return to keeping the books for the restaurant she owns with her husband, but no longer can handle regular shifts.

“Now I just fill in when I need to,” she said.

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