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October 26, 2016

New York's High Court Finds Spectator Brawl Was Not Foreseeable

An owner or possessor, including a leaseholder, of a property which is open to the public has a duty to maintain the property in a reasonably safe condition for those using it. See Nallan v. Helmsley-Spear, 50 N.Y.2d 507 (1980). This duty encompasses an obligation to minimize the risk of reasonably foreseeable criminal acts of a third person. See Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 548 (1998). On October 25, 2016, in Pink v. Rome Youth Hockey Association, the New York State Court of Appeals held that a post-game fight between spectators was not reasonably foreseeable to the host hockey association, thereby entitling it to summary judgment.

The defendant rented a local arena as a venue for a youth hockey tournament. During the game, there were "several on-ice fights," ejections of players and one head coach, and "yelling and name calling" among rival spectators. At the conclusion of the game, a melee ensued in the stands and the plaintiff was struck and injured. Criminal charges were filed against three participants, resulting in guilty pleas.

The plaintiff alleged that the hockey association, as the lessee of the facility, had a duty to protect him from the criminal assault and a duty to maintain its own internal policy against unruly conduct. The Appellate Division, Fourth Department, accepted that argument, finding that the jury should determine whether the hockey association "had a duty to intercede and protect plaintiff." The Court of Appeals, however, held that the scope of duty is a legal question reserved for judges, and found that the behavior of the fans during the game was not sufficient to make the post-game assault reasonably foreseeable. The Court noted that the association's duty to protect against criminal conduct "is defined by the likelihood that the aggressive behavior would lead to a criminal assault." The absence of prior similar assaults and the lack of conduct by any specific spectator that merited removal from the venue led the Court to find that the incident was not foreseeable. Regarding the hockey association's "Zero-Tolerance" policy, the Court cited long-standing precedent that the failure to follow an internal policy that exceeds the standard of ordinary care "cannot serve as a basis for imposing liability."

The most fundamental requirement of fault-based liability is the existence of a duty owed by the offending party to the injured party. Defining the scope of duty has sometimes proven to be an elusive mission for the courts and has produced conflicting results. The familiar phrase coined by Judge Cardozo in Palsgraf v. Long Island R.R. that "the risk reasonably to be perceived defines the duty to be obeyed" was contemporaneously challenged by Judge Andrew's dissent. The debate continues to this day. Hopefully, this case offers guidance to practitioners and courts into realm of duty.

If you require further information regarding the content of this Legal Alert, please contact either of the Co-Chairs of the Torts & Products Liability Defense Practice Area, Thomas J. Drury, at (716) 858-3845 or, or Matthew J. Larkin, at (315) 425-2805 or


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