Archive for the ‘Entertainment’ Category

Down for the Count – Sports Bar and Entertainment Device Owner Subject to Potential Liability RE Placement of Punching Machine (NY)

April 30, 2015

Weierheiser v. McCann’s Inc. (New York)

The plaintiff sustained injuries while using an punching bag entertainment device at a sports bar and grill, and he filed an action against the bar and the owner of the device.  The defendants filed a motion for summary judgment based upon the doctrine of assumption of risk.  The trial court denied the motion and the defendants appealed.  On appeal, the Appellate Division of the Supreme Court of New York affirmed the decision.

The Court  explained that it was not a situation in which the bar was being called to account to the plaintiff in damages “solely by reason of having sponsored or otherwise supported some risk-laden but socially valuable voluntary activity.”  Pointing to the improper placement of the device, the plaintiff alleged that the device amounted to a dangerous condition.

The device owner first alleged that it did not owe a duty of care to the plaintiff.  However, the Court disagreed, noting that “[l]iability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of [the] premises.”  The device owner “failed to establish that non of those elements was present.”  With regard to the device owner’s breach of a duty owed to the plaintiff, the Court stated that the testimony in the case indicated that “the device should be placed in an area that had sufficient side clearance because of the follow through inherent in every punch to the device, and that placing the device in a corner could lead to a player hitting the wall.”  The evidence clearly indicated that the the device owner’s employees had placed the device on the premises, but the employees could not recall whether or not they had placed it in a corner.  As such, the device owner failed to meet it initial burden of establishing it was entitled to summary judgment.