VIVYAN v. ILION CENTRAL SCHOOL DISTRICT 920

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Kevin J. VIVYAN and Terri L. Vivyan, Plaintiffs–Appellants, v. ILION CENTRAL SCHOOL DISTRICT, Board of Education of Ilion Central School District and Ilion Memorial Post # 920, American Legion, Inc., Defendants–Respondents. (Appeal No. 2.).

Decided: April 20, 2012

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, AND MARTOCHE, JJ. Douglas G. Roberts, Syracuse, for Plaintiffs–Appellants. Roemer Wallens Gold & Mineaux, LLP, Albany (Matthew J. Kelly of Counsel), for Defendants–Respondents.

Plaintiffs commenced this action seeking damages for injuries sustained by Kevin J. Vivyan (plaintiff) when he was hit in the head by a ball while watching a baseball game. The game was organized by defendant Ilion Memorial Post # 920, American Legion, Inc., and was played at Diss Field, which was owned and operated by defendants Ilion Central School District and the Board of Education of Ilion Central School District. Plaintiff was seated in an unscreened bleacher located behind the first baseline. Although there was a grassy area behind the backstop at home plate, there were no bleachers or other seats there.

Following discovery, Supreme Court granted defendants' motion for summary judgment dismissing the complaint. We reversed, holding that, because “ ‘there was no seating where there was screening and no screening where there was seating[,] ․ a jury question [was] presented regarding the alleged negligence of defendant[s] in failing to exercise reasonable and ordinary care to protect spectators from foreseeable dangers' “ (Vivyan v. Ilion Cent. School Dist., 66 AD3d 1389, 1390, quoting Zambito v. Village of Albion, 100 A.D.2d 739). Following the subsequent trial, a jury determined that defendants were not negligent. The court thereafter denied plaintiffs' motion to set aside the verdict, and this appeal ensued.

Plaintiffs contend that the court erred in failing to instruct the jury “as to the decisional law that was applicable to this ball field liability case.” We reject that contention and conclude that the court's instructions, “as a whole, adequately conveyed the sum and substance of the applicable law” (Turner v. CSX Transp., Inc. [appeal No. 5], 72 AD3d 1597, 1598 [internal quotation marks omitted]; see Delong v. County of Chautauqua [appeal No. 2], 71 AD3d 1580, 1581; Garris v. K–Mart, Inc., 37 AD3d 1065, 1066).

Contrary to plaintiffs' additional contention, the court did not abuse or improvidently exercise its discretion by admitting in evidence photographs establishing that there was room behind the screened area for plaintiffs to stand or to set up their own lawn chairs (see Kartychak v. Consolidated Edison of N.Y., 304 A.D.2d 487; see e.g. Anand v. Kapoor, 61 AD3d 787, 788–789, affd 15 NY3d 946; Moore v. Suburban Fuel Oil Serv., 22 A.D.2d 827, 828, affd 16 N.Y.2d 647; cf. Torres v. City of Geneva, 33 A.D.2d 880). “Demonstrative evidence [such as a photograph] is not per se prejudicial and the determination as to its appropriateness lies in the sound discretion of the trial court” (Rojas v. City of New York, 208 A.D.2d 416, 417, lv denied 86 N.Y.2d 705).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

MEMORANDUM: