Nebish v. Oscar's Arena, et al.

By Marcel Strigberger

I had the pleasure of watching an Ottawa Senators' Hockey game at the Corel Centre. As part of the commercial break entertainment, the Senators' mascot, a lion called Spartacat, sets himself up in the stands and fires wrapped Schneiders hot dogs from an artillery type piece into the crowd. Some of the hot dogs easily sail a couple of hundred feet through the air before being caught by the lucky spectators.

My question is; sooner or later an unsuspecting fan will get hit in the head by one of these dogs. Will he have a good cause of action? I went through the annals of legal jurisprudence recently and lo and behold, I came up with just this type of case. Following is the Superior Court decision of the Honourable Mr. Justice Wiener:

"Norman Nebish v. Oscar's Red Hots Arena and Hiram Hound"

WIENER J.: This is an action by Norman Nebish, a 47-year-old accountant against Oscar's Red Hots Arena and Hiram Hound, a mascot.

BACKGROUND

The plaintiff Norman Nebish attended the arena with his 11-year-old son Melvin on the cold winter night in question to watch a professional hockey game. The game was relatively uneventful until about 14 minutes into the second period when an event took place which was soon to change Norman's life.

The home team was ahead by three goals and the fans were all happy applauding, stomping their feet and chanting for more.

At this point during a break in the action, Hiram Hound, the team mascot placed himself in section 108 of the platinum seats and set up a large bazooka. He loaded it with about a dozen wrapped Oscar Red hots and after emitting a howl, he fired the bazooka in different directions, projecting the hot dogs into the crowd.

One of these frankfurters reared its ugly head in the vicinity of the plaintiff who was absorbed reading a game program. Before he could say hot dog, the determined projectile whacked Norman on the side of the head knocking him off his seat, located in Section 224, Row K seat 34 (seat filed as exhibit 12).

The plaintiff did not lose consciousness but he became dazed and confused. He stated he did not know what hit him. He thought the roof had caved in.

He suffered a minor closed head injury long with soft tissue injuries to his neck and shoulder. He also developed psychological trauma, which will be discussed shortly.

LIABILITY

Counsel for the plaintiff, Lamont Lafontaine argues that the arena's use of a bazooka to project wrapped all dressed hot dogs into the crowd is per se a dangerous act, attracting strict liability. He is unable to cite any legal jurisprudence for this proposition but he submits that there must be an old Latin maxim to the effect that he who projects all dressed hot dogs is liable should these hot dogs cause injury to a spectator. Mr. Lafontaine is certain a similar event happened in the Coliseum in Rome where lions would pepper the crowd with munchies during gladiator matches.

He does cite one somewhat similar case of Hammered v. The Globe Theater, where during a performance of Macbeth at the Globe in London in the days of William Shakespeare, the court imposed liability against the theater after the three witches negligently tipped over their cauldron scalding a front row patron with chicken soup.

Counsel for the arena, Durnford Teasdale, argues that even if the arena were otherwise liable, I must absolve it, as there was a waiver of liability printed on the ticket.

Mr. Teasdale has referred the court to the back of the ticket (exhibit 29), where indeed there is a waiver. It reads, "The arena will not be liable to patrons for any loss or injury caused by being struck by any projectiles." I am indeed obliged to Mr. Teasdale for lending me his magnifying glass.

I do not feel however that this clause is of any help to the defendant. I agree with the submissions of Mr Lafontaine that in order to waive a right, the party must be aware of the right he is waiving. The legal question is; in coming to the hockey game, was it reasonably foreseeable by Mr. Nebish that he might be beaned by a flying hot dog shot out of a bazooka by a hound?

It's not as if the projectile in this case, i.e. a hot dog, was a hockey puck. I do think that defence counsel is stretching it a bit when he tries to convince me that there are at least 5 similarities between the two. Indeed one startling similarity is that both are likely made out of the same ingredients.

There will be judgment for the plaintiff, but only as against the arena. The claim against Hiram Hound is dismissed base on the age-old common law concept of scienter, or "in the British Empire every dog is entitled to one free bite." To me this includes one free bonk.

DAMAGES

The question now is how much do we award Mr. Nebish?

The plaintiff claims that he required weekly physiotherapy to his neck and shoulders for 6 months. He also still gets daily headaches, assuaged only by Tylenol 3. The main problem however is that he suffers from emotional sequella. He claims that his sex life is shot. He alleges that he may be in the midst of making love to his wife when suddenly he shouts "Dive" and he hides under the bed.

He has been receiving psychiatric treatment from Dr. William Townsand, a noted psychiatrist who specializes in patients with Post Traumatic Stress Disorder, brought on by being struck by flying objects. Dr. Townsand has written and presented many papers including, "Pigeons, never mind the statues."

Dr. Townsand testified that the plaintiff's injuries to his mind are very hard to treat. Similar victims whom he has treated after getting hit by straying golf balls have found their injuries to be permanent. Says the noted expert, "Ze victim does not know when he could get hit by ze next vun ." Dr. Townsand is not German; he just prefers to testify in a German accent.

I am very impressed by the evidence of Dr. Townsand. I am not at all persuaded by the defence psychiatric expert, Dr. Heinz Von Schulze. Dr. Von Schulze, who only had occasion to examine the plaintiff once on behalf of the insurer for the arena, asserts that it is all an act, that Mr. Nebish is a malingerer. He even goes on to deny Dr. Townsand's theories, stating, "I have treated hundreds of spectators struck by balls at cricket matches and none of them have ever suffered anything but fleeting emotional disturbance." Dr. Von Schulze spoke with a crisp British accent.

The court finds that in matters psychiatric Dr. Townsand's accent makes his testimony more credible.

I assess the plaintiff's damages for pain and suffering in the amount of $75,000. With this type of money, he should be able to enjoy life a bit more, go out to restaurants, take trips and purchase seasons hockey tickets.

Judgment accordingly.

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© 2007 Marcel Strigberger. This article CANNOT be copied or reproduced in any way without the expressed written consent of the Author.