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Kevin J. Vivyan and Terri L. Vivyan v. Ilion Central School District

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


April 20, 2012

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.)

Appeal from a judgment of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered April 29, 2011 in a personal injury action.

Vivyan v Ilion Cent. School Dist.

Decided on April 20, 2012

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, AND MARTOCHE, JJ.

The judgment granted judgment to defendants upon a verdict of no cause of action.

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

Memorandum: 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 AD2d 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 AD2d 487; see e.g. Anand v Kapoor, 61 AD3d 787, 788-789, affd 15 NY3d 946; Moore v Suburban Fuel Oil Serv., 22 AD2d 827, 828, affd 16 NY2d 647; cf. Torres v City of Geneva, 33 AD2d 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 AD2d 416, 417, lv denied 86 NY2d 705). Entered: April 20, 2012 Frances E. Cafarell Clerk of the Court

20120420

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