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Trespassing to Lay a Curse

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

An amusing story from the new Yankee stadium, where construction crews jackhammered through concrete to retrieve a David Ortiz Red Sox jersey buried there in an effort to hex the bronx bombers by Red Sox fan (and one-day stadium construction worker) Gino Castignoli.

Not amused (it seems), the Yankees will apparently seek criminal charges against Castignoli, presumably for some sort of building code violation or criminal trespass. Unfortunately for Castignoli, I think there's also an open and shut case against him for trespass to land: Any person who commits an act of entry with intent to the land of another without permission is liable to the other for trespass. Leaving a thing on land without permission can constitute the "act of entry" needed for the trespass claim. And trespass, like other intentional torts, doesn't have much of a sense of humor -- as long as there was intent, that the effort may have been a good-natured practical joke would not provide a defense.

Recoverable damages? It would seem like the Yankees could recover the expense associated with removing the jersey. Castignoli has argued that no structural damage was done, but I don't think a landowner is limited recovering removal costs / remediation expenses to situations where the removal or remediation is a structural necessity.

Would this construction worker have to pay punitive damages as well? Yankees president Randy Levine described Castignoli as someone who "had really bad motives and was trying to do a really bad thing" and the act as "a very, very bad act." Most Red Sox fans likely have actual malice when it comes to the Yankees, or at least did until the past few years, no? Does that kind of malice suffice for the "aggravation" needed to state a claim for punitive relief?

Of course, Castignoli could presumably request return of the jersey (although the Yankees intend to donate it to charity), and sell it on ebay to pay for his legal fees and damages. And maybe Red Sox nation will be kind enough to start a legal defense fund.

Full post as published by Sports Law Blog on April 14, 2008 (boomark / email).