# FILED
February

26, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk DARRELL G. FISHER, ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9609- CV-00402 VS. ) ) Davidson Circuit ) No. 94C-212 METROP OLITAN GOVER NMEN T ) OF NASHVILLE and DAVIDSON ) COUNTY, ) ) Defendant/Appellant. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C IRCU IT COU RT OF D AVIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE WALTER C. KURTZ, JUDGE

MARY A. P ARKER 209 Tenth Avenue Sout h Suite 511, Cummins

Station Nashvil le, Tennessee 37203 MARSHALL M. SNYDER 19 Music Square W est Nashvil le, Tennessee 37203 Attorneys for Plaintiff/Appelle e ERNEST D. BEN NETT, III One Union Stre et P. O. Box 1981 69 Nashvil le, Tennessee 37219- 8169 Attorney for Defendant/Appellant

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE
CONCUR: TODD, P.J., M .S. KOCH, J.- 2 - 

## O P I N I O N

The primary question involved in this appeal is whether th e owner of a hockey aren a viola ted a duty o f ca re to a volu ntee r stic k boy w ho was inj ured by a flying puck. The Circuit Court of Davidson County held that the o wner wa s seve ntyfive p ercent

at faul t and th e plai ntiff twenty-five. We affirm.

I.

T he Nash vi lle Knights, a professional hockey team in the East Coast Hockey League, pl ay thei r home games in Nashvil le’s Munic ipal Auditor ium. The playing surface is enc losed by a l owwall ap proxi mat ely fo rty-two inch es hi gh. A f ive foot high plexiglass shield on top of the wall also encircles the play ing area, except for
a wide g ap at center ice a round the players’ benches. In this part icular are na a twenty foot aisle runs from the low wall at center ice between the benches and bac k under the stands to the locker rooms. The benches are located j ust behind the wall on each side of the aisle. At

the end of each bench theplexig lass shiel d turns ninety deg rees a nd runs away

from the ice for a few

feet and turns ninet

y degrees

again and ru ns behind the benches toward the center aisle. As a consequence, while the wall r uns in front of the benches, there i s no shield i n front ofthe players; and there is no shield at al l acro ss th e twen ty-fo ot gap crea ted b y the a islewa y.

Darre l l Fisher, a twenty-one-year-old amateur hockey player, volunteered to serve as a g eneral erran d boy durin g the Knigh ts’ ho me games. One of his duties du ring the g ame was to se rve as “ stick-boy ” and keep the hoc key

sticks properlyarranged in a rack furnish ed for that purpose. The moveable rack r an perpendicular

from the low wall at the edge ofthe playi ng surface back acr oss the end of the visi tors bench in the o pen a isle. While attending t o his duties i n that area on- 3 -

January23, 1993, Mr. Fisher was struc k in the eye by a puck knocked throug h the gap in the pl exigla ss shield by one of the player

s on the ice.

This action followed, and after a bench trial below, the Ci rcuit Cour t of Davidson County found that the negligence of the Metropoli tan Government caused seventy-five percent of Mr. Fisher’s injuries.

II.

The Metropoli tan Government argues that t hey did not owe a duty of
care to Mr. Fi sher. The proper place to star

t in that analy

sis, however, is

a recognit ion that everyb ody owe s to e verybo dy e lse a du ty of care that is reasonabl e under the circumstances. Doe v. Linder Constructi

on , 845 S.W.2d 173 (Tenn. 1992). It may be reasonable to do nothing, see Eaton v. McClain , 891 S .W.2d 58 7 (Tenn. 1994), in which case we do sometimes say that the defendant did not owe a duty to th e pla inti ff, but that can only be sai d after an examination ofthe circumstances reveals that there
was no re ason ably f ores eea ble p roba bilit y o f harm th at the defend ant could, more probablythan not, have prevented. Id. Foreseeabi lity i s th e key. Doe v. Linder Constructio

n , 845 S.W.2d at 178.

In this case t he trial ju dge made the follow ing finding s of fact: Hockey is a fast game. Hockey pucks sometimes travel in excess

of ninety mil es per hour. T en to twelve times a game the pu ck leaves the ice and g oes into the stands. The most dangerous areas are in the back of the goal and al ong the sides when the pl ayers attempt to “clear” the p uck and g et i t to the other end by an gli ng i t off the dasherboard. Plexiglass protectors are now standard in hockey arenas and most all plexiglass p rot ection entirelysur round the ice except for the players boxes. The 20 f oot gap with no plexiglass between the players boxes in Munici pal Auditori um was not consistent w ith the standard existing in most all professional hockey arenas. The a rea behind the goal s are normall y protected by higher plexig lass than alongthe sides. M unic ipal Auditorium complied w ith this sta ndard. Higher plexiglass would not, however, keep pucks out of the mezzani ne, but- 4 - the real area of dang er on the ends w as directly

behind the goal. Plai ntiff Darrell Fisher

was 21 years-old at the time of his injur

y. Mr. Fisher had s ome limited inv olvement with youth hockey

and wasa knowledg eable hockey fan. The trainer of

the Nashvil le Knights hockey team recruited him as a v olunteer , worki ng as a sti ck boy and g eneral errand boy, duri ng the 1992-93 ho ckey sea son. Wh ile workingas a volunt eer fo r the Knigh ts, he would frequently be positioned dur ing gamesby the si de of the team bench, in the ai sle way described above . This is where he was posi tioned when hew as struck by a puck which flew from the i ce during t he game on January 22, 1993. Atthe time he was str uck, he was rearrang ing the hockey sticks i n the stick rack which was at the end of the Knight’s bench, butin th e aisle way. The errant puck struc kMr . Fisher i n the eye, shattering hi s prescri ption glasses and laceratingthe cornea of his right eye. * * * The Court is of the op inion that Met ro did owe a du ty to protect M r. Fisher . Mr. Fi sher was in t h e unprotected aisle area

where the risk of er rant pucks was high. As eviden ce o f t he measure of this du ty, most arenas h ost ing pr ofe ssio nal h ocke y game s have plexiglass protection in this area. Furthermore, Mr. Fishe r was especially vulnerable in thathe was assigned a task forwhic h his attention would often be di verted from the playing surface. On the other hand, Mr. Fi sher knew that some danger existed in this area and had so m e responsibil ity

forhis own p rotection. I n apportioning fault the Court has consid ered the discussion and the criteria set forth in Eaton v. McClain , 891 S.W.2d 587, 592 (Tenn. 19 94). The Court attributes to the Metrop olit a n Government

Seventy- Five Percent (75%) of th e to tal negligence and t o thepla inti ff, Darre ll Fish er, T wenty- Five percent (25%) of the total negl igence.

The appe llan t doe s not take issue with th e fin dings of f act, wh ich are presumed to be correc

t. Rule 3(d), Tenn. R. App. Proc. In stead, the appell ant argues that the court’s conclusion conflicts w ith the general r ule refusing to impose liabi lity on sponsors of sporting events for injuries to participants in th e game or to sp ectat ors. Our own Supreme C ourt in Perez v. M c Conkey , 872 S.W.2d 897 (Tenn. 1994) referred to a fan at a baseball game sitti ng in an unsc reened s eat as a p erson who could not recove r for an injur y caused by

the risks inherent in thegame. See also Hudson v. Kansas Ci

ty Baseball C

lub , 16 4 S.W.2d 318 (Mo. 1942); Stradtner v.- 5 -

Cincinnati

Reds, Inc. , 39 Oh. App. 2d 199, 316 N.E.2d 924 ( 1972); and Neinstein v. Los Angeles Dodgers, Inc. , 229 Cal. Rpt r. 612, 185 Cal . App. 3rd 176 ( 1986). T h e baseball f an rule has als o been applied to ho ckey fans. Pestalozz i v. Philadelphia Flyers, Limited

, 576 A.2d 72 (Pa. 1990); Gilchris t v. City of Troy , 494 N.E.2d 1382 (N.Y. 1986). But

see Benjamin v. State , 453 N.Y. S upp. 2d 329 (1982); Lemoine v. Springfield

Hockey Assoc. , 29 N.E.2d 716(Mass. 1940) ; and Thurman v. Ice Palace , 36 Cal, App. 2d 364, 97 P.2d 99 9 (1939) for a contrary result involving hockey fans. See also McGee v

. Board of Educat

ion , 226 N.Y. Supp. 2d 329 (1962) for a case resulting in no liabi lity for i njuries to participantsin a sporti ng event.

Most of the cited cases

were deci ded under the pri nciples of assumpti on of the risk. In Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994) the Supreme Court held that the reasonabl eness ofa party ’s conduct i n confronting a risk shoul d be determined under the pri nciplesof comparative fault. There fore, the question in this
case becomes whethe r the defendant should have foreseen that persons in t he area at ice level unprotected by the plexiglass shield were in dange r of har m and that some action was req uired to prevent it. If the answer to thatquestion is yes, then we must decide if the plaintiff shoul d have also been a ware of th e dan ger an d sho uld h ave taken some precautions for his ow n safety. If the answer to that question is also yes, then we must deci de how the two compare. We think the trial judg e performed the proper analysis and came to t he right conclusion.

III.

The Metropolit an Government also argues that the evidence preponderatesagainst thetrial judge’s finding that Mr. Fisher sustained $100, 000 in damages.- 6 - The record shows that when the puck hit Mr. Fisher it knocked him unconscious, broke his g lasses and lacerated hi s eye. The eye surgeon discover ed extens ive traumato the eye and performed surger y to retur n the iris to the eye and oth e rwise restore the eye’s int egrity . On July 18, 1994 the surg eon performed a second operation to remove so me scar tissue that had developed be tween the iris and the lens mater ial, and to per form a lens implant

.

In all, Mr. Fisher in curred almost $18,000 in medical expenses and must have semi-annual checkups. He is now dispos ed to glaucoma, retinal detac hment, and a degenerati ve cornea. His employ ment choices are limited by his impaire d vision and he cannot qualify with a rifle in order to volunteer for the Tennes see Defen se Force S tate Milit ia, an or ganizatio n he was int erested in joinin g.

Th e i njury cau sed severe pain for a whi le and the medici ne he administered also caused conside rablepain. For a whi le his

eye w as almo s t unbearably s ensitive to light.

For all these reasons, we t hink the trial judge’s finding of $100 ,000 in damages is su pported by th e evidence.

The jud gment of the trial court is affirmed and the cause is remand e d to the Cicrc uit Court of Da vidson Cou nty for

any furt her proc eedings necessary . Tax the costs on appeal to the appellant.

________________ ______ ______ _ BEN H. CAN TRELL, JUDGE- 7 -

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WILLIAM C. KOCH, JR., J UDGEIN THE COURT OF APPEALS OF TEN NESSEE MIDDLE SEC TION AT NASHVILLE
DARRELL G. FISHER, ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9609- CV-00402 VS. ) ) Davidson Circuit ) No. 94C-212 METROP OLITAN GOVER NMEN T ) OF NASHVILLE and DAVIDSON ) COUNTY, ) Affirmed ) and Defendant/Appellant. ) Remanded



### J U D G M E N T
This c a use came on to be hear d upon the recor

d on appeal from the Circuit Court of Davidson C ounty, bri efs and argument of couns el; upon conside ration whe reof , this Court

is of the opinion that in the jud gment of the trial court there is no reversible error.

In accordance w ith the opinion of the Court filed her ein, it is, ther

efore, ordered and decreed by this Court

that the judg ment of the trial court is affirmed. The
cause is remand ed to th e Circuit Court of Dav idson County for the execut ion of the judgm ent o f th at co urt a nd f or th e col lect ion o f th e cos ts ac crue d bel ow.

Costs of this appeal are taxed against theMetropolit an Government of Nashville and Davids on County, Pr incipal, and Tay lor, Ph ilbin, Pigue, Marchetti & Benn ett, Sure ty, f or whic h exec utio n ma y issue if ne cess ary.

ENTER _______________________.

_________________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_________________________________ BEN H. CAN TRELL, JUDGE

_________________________________ WILLIAM C. KOCH, JR., J UDGE