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The smoke signals were noticeable last December.  Now, it’s becoming obvious that a wrongful-death lawsuit will be filed on behalf of a man who died after being ejected from a Bills game in November 2012.

According to WGRZ, the family of David Gerken, Jr. has filed formal notice that it intends to sue Erie County.  The claim will focus in part on the quality of lighting and fencing at a spot where Gerken fell into a creek and drowned.  The suit also will apparently attack the decision to eject Gerken while intoxicated and allowing him to walk away from the stadium by himself.

Erie County owns Ralph Wilson Stadium, and Gerken’s family alleges that Erie County is therefore responsible for the safety of its patrons, even if they are tossed out of the building.

Complicating the situation for Gerken’s family is that Gerken called his brother, who also was attending the game.  Gerken told his brother that Gerken had been ejected, and they agreed to meet at a nearby bar after the game.

If the case ever goes to trial, it will be difficult to get a jury to place responsibility on Erie County for Gerken’s safety after leaving the stadium when Gerken’s brother decided to stay and watch the game.  The legal theory based on the lighting and fencing gives Gerken’s family a path around that predicament.  It could make sense to focus on that argument only, and to avoid completely the idea that his brother decided not to leave the stadium with Gerken.

A jury possibly will have a hard time making anyone else responsible for Gerken’s death when his own brother chose staying at the game over protecting him.  The best strategy for the family’s lawyers could be to do whatever is necessary to keep that fact out of the case.

Dealing with intoxicated fans presents a challenge for stadium operators, from a liability standpoint.  A stadium that doesn’t eject a drunk fan, risks liability to someone they may injure in the stadium.  A stadium that detains them until they are sober or until someone is available to accompany them risks a false imprisonment claim.  And if, as the folks in Buffalo did, a stadium summarily ejects a drunk fan, the stadium operator faces a potential claim if something happens to them after they leave the premises.