JOEL SHENMAN v. THE ATLANTIC LEAGUE, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4248-05T54248-05T5

JOEL SHENMAN,

Plaintiff-Appellant/

Cross-Respondent,

v.

THE ATLANTIC LEAGUE, SOMERSET

PATRIOTS, CAMDEN RIVERSHARKS

AND COMMERCE BANK BALLPARK,

Defendants-Respondents/

Cross-Appellants.

________________________________________________________________

 

Submitted August 21, 2007 - Decided August 28, 2007

Before Judges Lisa and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-1116-05.

Cillick & Sprague, attorneys for appellant/cross-respondent (Suzanne M. Smith, of counsel and on the brief).

Salmon, Ricchezza, Singer & Turchi, attorneys for respondents/cross-appellants (Timothy J. Schipske, on the brief).

PER CURIAM

Plaintiff appeals from a summary judgment dismissing his personal injury complaint against a professional baseball league, two professional baseball teams, and the stadium owner. On September 11, 2003, plaintiff was a spectator. The ticket he purchased was for a seat behind home plate, which is protected by screening. Plaintiff arrived early, purchased some food, and rather than going to his assigned seat, went to a different seat in an unprotected area to watch the pre-game warm-ups. He sat in the last seat in the front row down the left-field line. Thus, he chose the seat most distant from home plate (the protected area) and closest to the field.

Two players were throwing and catching a ball in the area of plaintiff's location. Plaintiff was not paying attention as he was talking to some children in the stands. An errantly thrown ball struck plaintiff in the shoulder.

Judge Ashrafi rejected plaintiff's argument that the limited duty rule announced by the Supreme Court in Maisonave v. Newark Bears Prof'l Baseball Club, Inc., 185 N.J. 70 (2005), did not apply during pre-game warm-ups, but only during the actual game, and therefore would not insulate defendants from liability. The judge reasoned that

[s]ensible application of the limited duty rule requires a broader understanding of 'the game' than the Plaintiff proposes. It must include pre-game warm-ups, post-game celebrations, time-outs, and transitions from inning to inning. After all, fans are permitted in the stands as spectators during the entire time, and the purpose of their presence is to watch 'the game.'

He therefore found that defendants owed no duty of care to plaintiff while in the stands in an unprotected area during the pre-game warm-ups and granted summary judgment dismissing the complaint.

We note that the New Jersey Baseball Spectator Safety Act of 2006, N.J.S.A. 2A:53A-43 to -48, adopted in response to the Maisonave decision, and expanding immunity from liability to the entire stadium, not just the stands, defines "[p]rofessional baseball game" to "include pregame activities." N.J.S.A. 2A:53A-45. Although that law, which became effective January 12, 2006, does not apply to this case, its temporal definition of a baseball game is logically consistent with Judge Ashrafi's analysis.

We agree with Judge Ashrafi's analysis. The rationale underlying the Maisonave holding distinguished between different locations within the stadium, but otherwise would apply with equal force to pre-game warm-ups as well as the actual game.

We affirm substantially for the reasons set forth by Judge Ashrafi in the written decision attached to his March 31, 2006 order for judgment.

 
Affirmed.

Defendants filed a notice of cross-appeal, which stated that the trial court order "should have been broader in scope and application." In their appellate brief, defendants made no arguments in support of the cross-appeal, and therefore abandoned it. S. Jersey Catholic Sch. Teachers Org. v. St. Teresa of the Infant Jesus Church Elementary Sch., 150 N.J. 575, 598 (1997). Further, the stated basis for the cross-appeal was not viable because appeals are from judgments, not opinions. Glaser v. Downes, 126 N.J. Super. 10, 16 (App. Div. 1973), certif. denied, 64 N.J. 513 (1974). The cross-appeal is dismissed.

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A-4248-05T5

August 28, 2007