Edward Tessler
Colleges and universities are frequently subject to claims from spectators who are injured while watching sporting events. These suits may lead to significant settlements or judgments against the college or university. At a minimum, the school can incur litigation costs in defending itself. Schools should keep in mind that their comprehensive general liability insurance (CG
L) policies may pay some or all of those costs. The coverage provided by CGL policies is broad enough that it should trigger the CGL insurers’ obligations under the policies. These obligations may include paying for any settlements or judgments up to the policies’ limits, as well as paying for defense costs.
Colleges and universities face exposure to a wide variety of claims by injured spectators. For example:
- In Sawyer v. State of New York, 127 Misc. 2d 295 (N.Y. Ct. Cl. 1985), a 13-year-old spectator at a hockey game was struck by a puck. The court held for the spectator, finding that the state (which owned the rink at the State University of New York – Oswego) had failed in its duty of care by not providing sufficient protective netting around the rink. In addition, the court found that the state failed to warn spectators that it had previously lowered the netting by one foot.
- In Bellezzo v. State of Arizona & Arizona Board of Regents, 174 Ariz. 548, 851 P.2d 847 (1992), a baseball spectator was struck in the head by a foul ball. She initially had a seat in an area protected by a screen, but elected to move to an unprotected area to get a better view of her son, who was the catcher for the visiting team. The lower court granted summary judgment to the state university and the board of regents. On appeal the court affirmed, finding that the spectator was not exposed to an unreasonable risk of injury. The court held that the field provided enough protected seating to meet the expected requests of spectators who wanted the protection.
- In O’Connor v. Syracuse University, et al., 66 A.D.3d 1187 (N.Y. App. Div. 3d Dept. 2009), a spectator at a hockey game was hurt while coming to the aid of another spectator who had been punched by a hockey player from the losing team. The lower court granted summary judgment for all defendants. The Appellate Division affirmed summary judgment for the university, finding that it met its duty to minimize foreseeable danger from criminal acts of third parties.
Thus, spectator claims may be based on the school’s alleged failure to provide the appropriate duty of care, failure to warn, or negligence. Even when the school has fulfilled all of its duties and has no liability, the costs of defending against the claims can be significant.
Spectator injuries, as well as others, may be covered by the college or university’s CGL policy. CGL policies provide broad coverage and obligate insurers to indemnify their policyholders against covered claims and liabilities. Typically, CGL policies cover bodily injury arising from occurrences during the policy period. With spectator injuries, the occurrence is the event of the spectator being hit by a puck or a foul ball. As long as the injury takes place during the policy period, that policy is implicated even if the claim against the college or university is asserted later. In addition to indemnity coverage, CGL policies typically provide “litigation insurance,” which means the policy obligates the insurer to provide a defense to the policyholder even if the claim against it is “groundless, false or fraudulent.” Int’l Paper v. Cont’l Cas. Co., 35 N.Y.2d 322 (1974). Since a policyholder needs its defense when the claim is first asserted against it, and cannot wait until the allegations are proven or disproven, the test for determining whether an insurer must provide a defense under a CGL policy is typically whether the allegations of the complaint are potentially covered by the policy. See, e.g., Fitzpatrick v. Am. Honda Motor Co., 78 N.Y. 2d 61 (1991). Unless the insurer can prove there is no possibility of coverage at all under the policy, the policyholder is entitled to a defense.
CGL policies are a valuable asset to colleges and universities facing potential spectator injury claims because the coverage may defray most or all of the costs incurred by the school in defending against the lawsuit or paying any settlement or judgment. When a claim is asserted, the college or university should give notice of the claim to its CGL insurer promptly. Insurers frequently deny coverage on the basis that the policyholder gave late notice of the claim. Even if the school is uncertain whether there is coverage, it should give notice anyway. After that, the school should cooperate with the insurer by providing the insurer with the information needed to make its coverage decision. These steps will avoid charges down the road that the college or university did not cooperate with the insurer.