EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, June 12, 2012

Old Time Hockey: Los Angeles Kings Stanley Cup Win Brings To Mind Kings Case w/Evidence Code Section 500 Issue

Congratulations to the Los Angeles Kings on winnng their first Stanley Cup with a 6-1 victory over the New Jersey Devils. One of the most enjoyable NHL games that I ever experienced was at the STAPLES Center, when my wife, a friend, and I took advantage of an all-you-can eat promotion that allowed us to watch the Kings play with an endless supply of nachos, popcorn, cotton candy, and soda. Last night, though, wasn't the first time that the Kings made history. Instead, the team previously made its mark in the opinion of the Court of Appeal, Second District, Division 1, California, in Nemarnik v. Los Angeles Kings Hockey Club, L.P., 127 Cal.Rptr.2d 10 (Cal.App. 2 Dist. 2000), a case that highlights California Evidence Code Section 500.

In Nemarnik, Holly Ann Nemarnik was injured when, during pre-game warm ups at a Los Angeles Kings ice hockey game, a puck flew off the ice and struck her in the mouth. Specifically,

During the pre-game warm ups, several pucks were in play on the ice. Plaintiff had a fourth-row, season ticket seat but could not see the ice because "there were more people congregating around her area than she had ever seen before. No ushers asked the crowd to go to their proper seats as required." Plaintiff "tried folding up her seat and sitting on the edge to obtain a clear view, but still could not see over the crowd the venue had allowed to form around and in front of her. [Plaintiff] was perplexed and distracted by the fact that she had never seen such a crowd form around her at any previous hockey game she had attended. She was unsure what to do about the situation. Ultimately, a puck did fly off the ice. [Plaintiff] was unable to see the puck come off the ice, heading directly toward her; she was unable to take evasive action. The hockey puck struck [plaintiff] in the mouth and face, causing severe injuries." 

Nemarnik thereafter sued the Kings, the National Hockey League, and the owners and operators of the ice hockey venue, claiming that the

defendants were negligent in failing to prevent the spectators from milling around the ice during pre-game warm ups: "The suit was based on the fact that defendants, by allowing a crowd to form and to remain in an area where they were not supposed to be congregating, increased the normal risk inherent in attending a hockey game; i.e., while a puck leaving the ice might be a normal risk of attending a game, that risk was significantly increased by allowing the spectators' views to be blocked so that they could not see the puck coming, and take evasive action."

The trial, court, however, granted the defendants' motion for nonsuit at the beginning of trial, concluding, as a matter of law, that the defendants were immune from liability under the primary assumption of risk defense. Nemarnik subsequently appealed, claiming that her

main contention of active negligence here was that defendants did not perform adequate crowd control; however she was in no way contending that crowd control was the only measure of protection required. Because primary assumption of risk is an affirmative defense, in order to be entitled to judgment, defendants had the burden to establish all elements of the defense. Plaintiff did not have a burden to negate the affirmative defense in the stipulated opening statement; nor to raise any other acts of negligence in order to defeat the nonsuit. (Evid. Code ยง 500.) It appears from the language of their brief that respondents are asking this Court to refrain from finding any duty beyond crowd control. To the extent this Court finds that a duty is owed to hockey patrons, that duty would and should include, among other things, adequate barriers; proper stadium design, etc. The cases on point clearly establish that there is a legal duty to protect closer-sitting fans like Nemarnik herein from flying objects. (See, Shurman v. Fresno Ice Rink, Inc. (1949) 91 Cal.App.2d 469, 476-477 [hockey arena has duty to protect spectators sitting in the front row; Knight v. Jewett, supra, 3 Cal.4th 296, 317 [baseball stadium has duty of ordinary care to protect fans from flying objects close to home plate, where fans are more likely to be hit (quoting, with approval, Ratcliff v. San Diego Baseball Club (1938) 27 Cal.App.2d 733, 736.]) Nemarnik thus contends that, should this Court reverse the nonsuit, she should, particularly given the recent fan death, be given the opportunity to present evidence at a new trial that the plexiglass barriers were also inadequate, as well as other factual bases of negligence.

Nemarnik was thus relying on California Evidence Code Section 500, which states that

Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.

But despite Nemarnik's arguments, the appellate court was still able to affirm the trial court's ruling, finding that

if we were to impose a duty upon defendants to eliminate all risk of injury from flying pucks, we would force defendants to do either of two things: provide a floor to ceiling protective screen around the rink, thereby reducing the quality of everyone's view; or increase the price of tickets to cover the increased liability costs....[W]e find neither alternative to be acceptable.

Since Nemarnik was handed down, it has been cited by numerous courts, inside and outside of California, most frequently for the proposition that defendants "do not have a duty to protect Appellant, a spectator, from inherent risks of the game of hockey." Hurst v. East Coast Hockey League, Inc., 637 S.E.2d 560, 563 (S.C. 2006).



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Wow well Nemarnik sure is a hatchet job. Seems to me it should be cited for illogical reasoning and defiance of all common sense.

Posted by: Daniel | Jun 12, 2012 5:53:47 PM

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