By: Denise M. Champagne//February 28, 2012
By: Denise M. Champagne//February 28, 2012//
A security guard, knocked down in the Buffalo Bills end zone on a Lee Evans touchdown reception in 2005, wants compensation for his injuries. The case, dismissed a year ago by a Niagara County Supreme Court justice, was heard Tuesday by a five-justice panel of the Appellate Division, Fourth Department.
“It’s not very often I get to complain about a Buffalo Bills touchdown,” Andrew P. Fleming told the justices.
Presiding Justice John V. Centra joked that what was so unusual about the case was that the Bills scored a touchdown. More laughs came when Justice Stephen K. Lindley pointed out that it was on a pass from J. P. Losman who was quarterback at the time.
“Isn’t this just an assumption of the risk, plain and simple?” asked Justice Salvatore R. Martoche, getting down to business.
“No, sir,” said Fleming, a partner in the Hamburg law firm Chiacchia & Fleming LLP. He represents William D. Austin, 54, of Niagara County, a former security guard for Apex Security Group Inc., who was behind the end zone, watching the crowd when he was hit by Evans in a Nov. 13, 2005, game against the Kansas City Chiefs, one of five the Bills won that season.
Austin was taken off the field on a stretcher. Fleming said he suffered ligament damage to his knee that required surgery and he also injured his ankle. Austin is no longer with Apex, a California-based firm that provides security to many professional but Fleming said he still works in the security field.
Fleming argued that as a security guard, Austin had an enhanced risk as he was required to watch the crowd so his back was turned to what was happening on the field.
Justice Lindley asked if there was any evidence that Austin was instructed to never turn around and could never be cognizant of his surroundings.
Fleming said the Bills dictated the terms of the contract and were responsible for security. He said Patrick M. Howard, the regional manager for Apex, and William Bombeck, who ran security under then General Manager Tom Donahoe, attended weekly meetings and that Bombeck, who has since died, was on the field on game days.
Fleming said Austin was not a participant in the game or a spectator and his circumstances are not the same as various cases cited by Keith N. Bond, an attorney with the Buffalo firm Walsh Roberts & Grace, who represents Buffalo Bills Inc.
Fleming said the case that comes the closest is Cohen v. Sterling Mets LP, 840 N.Y.S.2d 601, aff’d 870 N.Y.S. 2d 914 (2009), in which a concession vendor was injured in August 2004 at Shea Stadium when he was hit by a spectator trying to catch a T-shirt during a promotional T-shirt launch at a New York Mets game.
Queens County Supreme Court dismissed the action against Sterling, ruling he was a seasoned vendor, who had worked at the stadium for years and fully appreciated the risks associated with working in unprotected parts of the stadium. The court rejected plaintiff’s argument that the T-shirt launch was not part of the game and compared it the tossing of a ball to fans between innings which results in many spectators rushing to try to catch the souvenir.
Justice Centra said it was never stated that Austin was told he was not to take his eyes off of the crowd under any circumstances.
He then raised the issue of economic compulsion, also discussed and rejected in Sterling.
“Plaintiff further argues that the assumption of the risk is not a defense in this case as he was subject to an inherent compulsion to work despite misgivings about the safety of the T-shirt launch,” that decision says. “The plaintiff, however, failed to submit sufficient evidence to raise a triable issue of fact that he had no choice but to obey a superior’s orders despite the dangerous condition and that there was an economic compulsion to comply with the directive.”
Fleming said the Bills preserved the right to terminate employees.
“What’s your argument to where the directive came from?” asked Justice Rose H. Sconiers.
“Mr. Howard testified it came down from the Bills,” Fleming answered.
Bond said he submitted “a slew of cases” in which the assumption of risks are fully comprehended. He said there are certain risks inherent in the profession and there was no proof that the outcome would have been different had Austin been facing the field at the time Evans ran into him.
He said Austin had a scoreboard right in front of him and could have seen the Bills had crossed the 20-yard line. He reiterated there was nothing to show Austin had to always keep his back to the field.
Outside the courtroom, Fleming said he is seeking a trial for his client to determine liability and damages. He said the question is whether or not the Bills created an enhanced risk for Austin.
Bond said there are certain risks assumed with being a security guard. “The argument is it’s the same risk of being run over on the field,” he added.
The case was originally filed in Niagara County Supreme Court where Justice Richard C. Kloch Sr. granted Bond’s motion for summary judgment Feb. 14, 2011 and dismissed the complaint, prompting the appeal.