Tuesday, May 8, 2007

A Closer Look at the Ellen Massey Lawsuit

The story about the lawsuit filed by Ellen Massey -- the Mets fan who got her back broken by a flying fat man -- inspired what's left of the lawyer in me to wonder about her chances of success. After some moderate review of the matter, my sense is that she has a technically-valid legal claim, but one that will be pretty hard to prove.

Based on the news reports of the case, it appears as though she is going to premise her claim on the notion that the flying fat guy was over-served by Aramark, the Mets' beer vendor. It's worth noting at this point that the largest ever jury award arising out of the magical confluence of booze and sports venues came in a recent New Jersey case against Aramark and Giants stadium. There, Aramark was rung up to the tune of
$105 million for selling beer to a drunken football fan who later caused an auto accident, leaving one Antonia Verni, a 2 year-old girl, paralyzed.

While that verdict was overturned on appeal, the reversal was based on some overly-emotional and irrelevant testimony that was let in at trial, and which appeared to have contributed to the inflated damage award. The central premise of the case, however, -- that a stadium beer vendor can be liable for injuries later caused by a drunken fan -- remains intact.
Verni, now 9, is appealing the reversal to the New Jersey Supreme Court. But even if she loses the damages award in the Supreme Court, she is going to get a chance to prove her claim at a new trial. New York's dram shop laws are similar to New Jersey's, so it appears that, like Antonia Verni, Ellen Massey has a case.

Well, at least technically. Even if she can avoid having her case dismissed out of hand, she's going to have a tremendous proof problem that Antonio Verni never faced in that the drunk fan in the Verni case was in an accident after which his BAC was taken, establishing (a) that he was drunk at the time of the accident; and (b) that he was almost certainly visibly drunk at the time he was continuing to get beers at the Giants game.

Massey has yet to identify her fat, flying assailant. Even if she is able to, she will have no way of conclusively establishing that he was drunk back in April, rendering it a he-said, she-said situation in which plaintiffs often fair quite poorly. Even in the unlikely event that the fat man admits to being drunk,
for Aramark and the Mets to be on the hook, Massey must prove that they served an obviously drunk man. Given the lack of a BAC it will be impossible to say just how drunk the guy was when he ordered his last Bud Light.

So, while it may get hairy for them for a few months, I like the Mets' and Aramark's chances of ultimate success.