DARRELL G. FISHER,                        )
                                          )
      Plaintiff/Appellee,                 )
                                          )   Appeal No.
                                          )   01-A-01-9609-CV-00402
VS.                                       )
                                          )   Davidson Circuit
                                          )   No. 94C-212
METROPOLITAN GOVERNMENT                   )
OF NASHVILLE and DAVIDSON
COUNTY,
                                          )
                                          )
                                          )
                                                                  FILED
      Defendant/Appellant.                )                       February 26, 1997

                                                                  Cecil W. Crowson
                     COURT OF APPEALS OF TENNESSEE               Appellate Court Clerk
                       MIDDLE SECTION AT NASHVILLE


APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE WALTER C. KURTZ, JUDGE




MARY A. PARKER
209 Tenth Avenue South
Suite 511, Cummins Station
Nashville, Tennessee 37203

MARSHALL M. SNYDER
19 Music Square West
Nashville, Tennessee 37203
      Attorneys for Plaintiff/Appellee

ERNEST D. BENNETT, III
One Union Street
P. O. Box 198169
Nashville, Tennessee 37219-8169
       Attorney for Defendant/Appellant




                            AFFIRMED AND REMANDED




                                              BEN H. CANTRELL, JUDGE


CONCUR:
TODD, P.J., M.S.
KOCH, J.
                                  OPINION


              The primary question involved in this appeal is whether the owner of a

hockey arena violated a duty of care to a volunteer stick boy who was injured by a

flying puck. The Circuit Court of Davidson County held that the owner was seventy-

five percent at fault and the plaintiff twenty-five. We affirm.



                                            I.



              The Nashville Knights, a professional hockey team in the East Coast

Hockey League, play their home games in Nashville’s Municipal Auditorium. The

playing surface is enclosed by a low wall approximately forty-two inches high. A five

foot high plexiglass shield on top of the wall also encircles the playing area, except for

a wide gap at center ice around the players’ benches. In this particular arena a twenty

foot aisle runs from the low wall at center ice between the benches and back under

the stands to the locker rooms. The benches are located just behind the wall on each

side of the aisle. At the end of each bench the plexiglass shield turns ninety degrees

and runs away from the ice for a few feet and turns ninety degrees again and runs

behind the benches toward the center aisle. As a consequence, while the wall runs

in front of the benches, there is no shield in front of the players; and there is no shield

at all across the twenty-foot gap created by the aisleway.



              Darrell Fisher, a twenty-one-year-old amateur hockey player,

volunteered to serve as a general errand boy during the Knights’ home games. One

of his duties during the game was to serve as “stick-boy” and keep the hockey sticks

properly arranged in a rack furnished for that purpose. The moveable rack ran

perpendicular from the low wall at the edge of the playing surface back across the end

of the visitors bench in the open aisle. While attending to his duties in that area on



                                           -2-
January 23, 1993, Mr. Fisher was struck in the eye by a puck knocked through the

gap in the plexiglass shield by one of the players on the ice.



              This action followed, and after a bench trial below, the Circuit Court of

Davidson County found that the negligence of the Metropolitan Government caused

seventy-five percent of Mr. Fisher’s injuries.



                                           II.



              The Metropolitan Government argues that they did not owe a duty of

care to Mr. Fisher. The proper place to start in that analysis, however, is a recognition

that everybody owes to everybody else a duty of care that is reasonable under the

circumstances. Doe v. Linder Construction, 845 S.W.2d 173 (Tenn. 1992). It may be

reasonable to do nothing, see Eaton v. McClain, 891 S.W.2d 587 (Tenn. 1994), in

which case we do sometimes say that the defendant did not owe a duty to the plaintiff,

but that can only be said after an examination of the circumstances reveals that there

was no reasonably foreseeable probability of harm that the defendant could, more

probably than not, have prevented. Id. Foreseeability is the key. Doe v. Linder

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



              In this case the trial judge made the following findings of fact:

                      Hockey is a fast game. Hockey pucks sometimes
              travel in excess of ninety miles per hour. Ten to twelve
              times a game the puck leaves the ice and goes into the
              stands. The most dangerous areas are in the back of the
              goal and along the sides when the players attempt to
              “clear” the puck and get it to the other end by angling it off
              the dasherboard. Plexiglass protectors are now standard
              in hockey arenas and most all plexiglass protection
              entirely surround the ice except for the players boxes.
              The 20 foot gap with no plexiglass between the players
              boxes in Municipal Auditorium was not consistent with the
              standard existing in most all professional hockey arenas.
              The area behind the goals are normally protected by
              higher plexiglass than along the sides. Municipal
              Auditorium complied with this standard. Higher plexiglass
              would not, however, keep pucks out of the mezzanine, but

                                          -3-
              the real area of danger on the ends was directly behind
              the goal.

                     Plaintiff Darrell Fisher was 21 years-old at the time
              of his injury. Mr. Fisher had some limited involvement
              with youth hockey and was a knowledgeable hockey fan.
              The trainer of the Nashville Knights hockey team recruited
              him as a volunteer, working as a stick boy and general
              errand boy, during the 1992-93 hockey season. While
              working as a volunteer for the Knights, he would
              frequently be positioned during games by the side of the
              team bench, in the aisle way described above. This is
              where he was positioned when he was struck by a puck
              which flew from the ice during the game on January 22,
              1993. At the time he was struck, he was rearranging the
              hockey sticks in the stick rack which was at the end of the
              Knight’s bench, but in the aisle way. The errant puck
              struck Mr. Fisher in the eye, shattering his prescription
              glasses and lacerating the cornea of his right eye.

                                        *    *    *

                      The Court is of the opinion that Metro did owe a
              duty to protect Mr. Fisher. Mr. Fisher was in the
              unprotected aisle area where the risk of errant pucks was
              high. As evidence of the measure of this duty, most
              arenas hosting professional hockey games have
              plexiglass protection in this area. Furthermore, Mr. Fisher
              was especially vulnerable in that he was assigned a task
              for which his attention would often be diverted from the
              playing surface. On the other hand, Mr. Fisher knew that
              some danger existed in this area and had some
              responsibility for his own protection. In apportioning fault
              the Court has considered the discussion and the criteria
              set forth in Eaton v. McClain, 891 S.W.2d 587, 592 (Tenn.
              1994). The Court attributes to the Metropolitan
              Government Seventy-Five Percent (75%) of the total
              negligence and to the plaintiff, Darrell Fisher, Twenty-Five
              percent (25%) of the total negligence.



              The appellant does not take issue with the findings of fact, which are

presumed to be correct. Rule 3(d), Tenn. R. App. Proc. Instead, the appellant argues

that the court’s conclusion conflicts with the general rule refusing to impose liability on

sponsors of sporting events for injuries to participants in the game or to spectators.

Our own Supreme Court in Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994)

referred to a fan at a baseball game sitting in an unscreened seat as a person who

could not recover for an injury caused by the risks inherent in the game. See also

Hudson v. Kansas City Baseball Club, 164 S.W.2d 318 (Mo. 1942); Stradtner v.


                                            -4-
Cincinnati Reds, Inc., 39 Oh. App. 2d 199, 316 N.E.2d 924 (1972); and Neinstein v.

Los Angeles Dodgers, Inc., 229 Cal. Rptr. 612, 185 Cal. App. 3rd 176 (1986). The

baseball fan rule has also been applied to hockey fans. Pestalozzi v. Philadelphia

Flyers, Limited, 576 A.2d 72 (Pa. 1990); Gilchrist v. City of Troy, 494 N.E.2d 1382

(N.Y. 1986). But see Benjamin v. State, 453 N.Y. Supp. 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 999 (1939) for a contrary result involving hockey fans.

See also McGee v. Board of Education, 226 N.Y. Supp. 2d 329 (1962) for a case

resulting in no liability for injuries to participants in a sporting event.



               Most of the cited cases were decided under the principles of assumption

of the risk. In Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994) the Supreme Court

held that the reasonableness of a party’s conduct in confronting a risk should be

determined under the principles of comparative fault. Therefore, the question in this

case becomes whether the defendant should have foreseen that persons in the area

at ice level unprotected by the plexiglass shield were in danger of harm and that some

action was required to prevent it. If the answer to that question is yes, then we must

decide if the plaintiff should have also been aware of the danger and should have

taken some precautions for his own safety. If the answer to that question is also yes,

then we must decide how the two compare. We think the trial judge performed the

proper analysis and came to the right conclusion.



                                             III.



               The Metropolitan Government also argues that the evidence

preponderates against the trial judge’s finding that Mr. Fisher sustained $100,000 in

damages.




                                            -5-
              The record shows that when the puck hit Mr. Fisher it knocked him

unconscious, broke his glasses and lacerated his eye. The eye surgeon discovered

extensive trauma to the eye and performed surgery to return the iris to the eye and

otherwise restore the eye’s integrity. On July 18, 1994 the surgeon performed a

second operation to remove some scar tissue that had developed between the iris

and the lens material, and to perform a lens implant.



              In all, Mr. Fisher incurred almost $18,000 in medical expenses and must

have semi-annual checkups. He is now disposed to glaucoma, retinal detachment,

and a degenerative cornea. His employment choices are limited by his impaired

vision and he cannot qualify with a rifle in order to volunteer for the Tennessee

Defense Force State Militia, an organization he was interested in joining.



              The injury caused severe pain for a while and the medicine he

administered also caused considerable pain.       For a while his eye was almost

unbearably sensitive to light.



              For all these reasons, we think the trial judge’s finding of $100,000 in

damages is supported by the evidence.



              The judgment of the trial court is affirmed and the cause is remanded

to the Cicrcuit Court of Davidson County for any further proceedings necessary. Tax

the costs on appeal to the appellant.




                                                _____________________________
                                                BEN H. CANTRELL, JUDGE




                                        -6-
CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION




_______________________________
WILLIAM C. KOCH, JR., JUDGE




                                  -7-
                    IN THE COURT OF APPEALS OF TENNESSEE
                         MIDDLE SECTION AT NASHVILLE



DARRELL G. FISHER,                         )
                                           )
       Plaintiff/Appellee,                 )
                                           )      Appeal No.
                                           )      01-A-01-9609-CV-00402
VS.                                        )
                                           )      Davidson Circuit
                                           )      No. 94C-212
METROPOLITAN GOVERNMENT                    )
OF NASHVILLE and DAVIDSON                  )
COUNTY,                                    )      Affirmed
                                           )      and
       Defendant/Appellant.                )      Remanded


                                 JUDGMENT


              This cause came on to be heard upon the record on appeal from the

Circuit Court of Davidson County, briefs and argument of counsel; upon consideration

whereof, this Court is of the opinion that in the judgment of the trial court there is no

reversible error.

              In accordance with the opinion of the Court filed herein, it is, therefore,

ordered and decreed by this Court that the judgment of the trial court is affirmed. The

cause is remanded to the Circuit Court of Davidson County for the execution of the

judgment of that court and for the collection of the costs accrued below.

              Costs of this appeal are taxed against the Metropolitan Government of

Nashville and Davidson County, Principal, and Taylor, Philbin, Pigue, Marchetti &

Bennett, Surety, for which execution may issue if necessary.

              ENTER _______________________.



                                           _________________________________
                                           HENRY F. TODD, PRESIDING JUDGE
                                           MIDDLE SECTION

                                           _________________________________
                                           BEN H. CANTRELL, JUDGE

                                           _________________________________
                                           WILLIAM C. KOCH, JR., JUDGE
