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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 158
Raymond Pink, et al.,
            Respondents,
        v.
Rome Youth Hockey Association,
Inc.,
            Appellant,
et al.,
            Defendants.



          Matthew J. Kelly, for appellant.
          Andrew W. Kirby, for respondents.
          Pacific Legal Foundation; New York State Academy of
Trial Lawyers, amici curiae.




MEMORANDUM:
          The order of the Appellate Division, insofar as
appealed from, should be reversed, with costs, defendant Rome
Youth Hockey Association Inc.'s motion for summary judgment
dismissing the complaint as against it granted and the certified
question answered in the negative.

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                               - 2 -                          No. 158

           Defendant Rome Youth Hockey Association (hereinafter
defendant) is a non-profit community sports organization fully
operated by volunteers. In November 2006, defendant rented a
local arena owned by the City of Rome to host a hockey tournament
for 13-year-old players. Approximately 50-75 spectators attended
the game between Rome and Whitestown. Both teams belonged to
their respective youth hockey associations and both associations
were part of USA Hockey, the national governing organization.
           During the game, several on-ice fights broke out
between the players, who received penalties and in some cases
were ejected from the game. The referee also ejected the
Whitestown coach for throwing an object onto the ice. The
spectators, mostly family members of the players, engaged in
yelling and name calling.
           The game concluded without any physical altercation in
the stands. After the game was over, two female spectators got
into a fight in the stands and a melee quickly ensued as several
others, including plaintiff Raymond Pink, stepped in to break up
the fight. Matthew Ricci, the brother of one of the two female
spectators involved in the fight, struck plaintiff causing him to
sustain a head injury. Ricci subsequently pled guilty to criminal
assault. The two female spectators pled guilty to disorderly
conduct.




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                              - 3 -                          No. 158

          Plaintiffs Raymond Pink and Michelle Pink1 commenced
this action against defendant, the Whitestown Youth Hockey
Association (WYHA), the City of Rome, Ricci, and others involved
in the melee. The complaint alleged, in relevant part, that
defendant owed a duty to protect plaintiff from criminal assault.
Plaintiff's verified bill of particulars further alleged that
defendant was negligent in failing to enforce the USA Hockey's
"Zero-Tolerance" policy. The policy, after noting that assaults
occur at hockey games, required on-ice officials to seek to
remove spectators from the game for use of obscene or vulgar
language or for threatening or using physical violence.
          Defendant moved for summary judgment arguing that it
did not have a duty to protect plaintiff from a random assault
where there was no history of violence or physical confrontation.
Supreme Court denied the motion noting that the crux of
plaintiff's claim was that the tensions between the spectators
essentially put defendant on notice of the need to enforce the
Zero-Tolerance policy. The court held that by failing to enforce
the policy, defendant "may have violated a duty [it] assumed."
The court also held Ricci's actions did not absolve defendant of
liability. Plaintiffs subsequently settled with the City of Rome,
Ricci, and several other individual defendants.
          The Appellate Division, with one Justice dissenting,

     1
      Plaintiff Michelle Pink's sole cause of action is for loss
of consortium. All references to "plaintiff" hereinafter are to
plaintiff, Raymond Pink.

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                                 - 4 -                       No. 158

modified the judgment on the law and granted summary judgment in
favor of WYHA, concluding that it did not owe plaintiff a duty of
care since, unlike defendant, WYHA had not leased the arena. The
Appellate Division affirmed the judgment as modified (125 AD3d
1376 [2015]). The court concluded that there were issues of fact
as to whether defendant's duty to plaintiff "included the duty to
protect plaintiff from Ricci's conduct, and, given the hostile
environment in the arena before the fight . . . as to whether
[defendant] knew or should have known of the likelihood of the
fight" (125 AD3d at 1377 [internal citations omitted]). The court
ultimately held that "a trier of fact should determine whether
[defendant] had a duty to intercede and protect plaintiff" (id.
[internal citations omitted]).
          The dissent would have concluded that defendant did not
owe a duty to protect plaintiff from Ricci's assault (id. at 1378
[Lindley, J., dissenting]). The dissent noted that "given the
absence of prior fights among spectators at [Rome] youth hockey
games, it was not foreseeable that plaintiff would be assaulted
by another spectator, and, thus, [defendant] had no duty to
protect him from that unanticipated harm" (id. at 1379). The
Appellate Division granted defendant's motion for leave to appeal
and certified for our review the question of whether the order
denying defendant summary judgment was proper.
          "[T]he definition of the existence and scope of an
alleged tortfeasor's duty is usually a legal, policy-laden


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                               - 5 -                         No. 158

declaration reserved for Judges" (Palka v Servicemaster Mgt.
Servs. Corp., 83 NY2d 579, 585 [1994]). With respect to
landowners and leaseholders, there is a "duty to control the
conduct of third persons on their premises when they have the
opportunity to control such persons and are reasonably aware of
the need for such control" (D'Amico v Christie, 71 NY2d 76, 85
[1987]). That duty includes "minimiz[ing] foreseeable dangers on
their property" (Maheshwari v City of New York, 2 NY3d 288, 294
[2004]), including "foreseeable criminal conduct" (Burgos v
Aqueduct Realty Corp., 92 NY2d 544, 548 [1998]).
           We have recognized, however, "foreseeability and duty
are not identical concepts" (Maheshwari, 2 NY3d at 294).
"Foreseeability merely determines the scope of the duty once the
duty is determined to exist" (id.). Accordingly, the scope of a
duty "is defined by past experience and the 'likelihood of
conduct on the part of third persons . . . which is likely to
endanger the safety of the visitor'" (id., quoting Nallan v
Helmsley-Spear, Inc., 50 NY2d 507, 519 [1980][citations
omitted]), and "is limited to risks of harm that are reasonably
foreseeable" (Sanchez v City of New York, 99 NY2d 247, 253
[2002]).
           Defendant was entitled to summary judgment.   On this
record, the criminal assault on plaintiff was not a reasonably
foreseeable result of any failure to take preventive measures.
While defendant owed a duty to protect spectators from


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                              - 6 -                          No. 158

foreseeable criminal conduct, the scope of that duty is defined
by the likelihood that the aggressive behavior would lead to a
criminal assault. Defendant took measures to address player and
spectator conduct. The behavior of the fans, however
inappropriate, certainly did not create the risk that failure to
eject any specific spectator would result in a criminal assault,
particularly since such an assault had never happened before (see
Maheshwari, 2 NY3d at 294; Sanchez, 99 NY2d at 252).
          Plaintiff argues that defendant's failure to enforce
the Zero-Tolerance policy by ejecting spectators constitutes
independent evidence of negligence. The policy provides that "the
on-ice official" will remove spectators using "obscene, racial or
vulgar language" from the game. However, the "[v]iolation of a[n]
[organization]'s internal rules is not negligence in and of
itself" (Sherman v Robinson, 80 NY2d 483, 489 n 3 [1992]), and
where an internal policy exceeds "the standard of ordinary care,"
it "cannot serve as a basis for imposing liability" (Gilson v
Metropolitan Opera, 5 NY3d 574, 577 [2005]). Nor did the policy
demonstrate that defendant was on notice of the likelihood of
criminal assaults since a "general awareness" of incidents
nationwide does not establish foreseeability here (Haire v
Bonelli, 107 AD3d 1204, 1206 [3d Dept 2013]). Accordingly, we
find it unnecessary to address defendant's remaining arguments
for summary judgment.




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*   *   *   *   *   *   *   *    *      *   *   *   *   *   *    *   *
Order, insofar as appealed from, reversed, with costs, defendant
Rome Youth Hockey Association Inc.'s motion for summary judgment
dismissing the complaint as against it granted and certified
question answered in the negative, in a memorandum. Chief Judge
DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein and Garcia
concur. Judge Fahey took no part.

Decided October 25, 2016




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