A New York state appeals court has affirmed the ruling of a trial court, dismissing the complaint of a high school baseball player, who alleged that a facility’s failure to warn him that it was using anchored bases led to his injury. In so ruling, the appeals court agreed with the trial court that the plaintiff assumed the risk of injury.
The incident in question occurred on May 30, 2015 when the infant plaintiff, who was 16, was participating in a baseball game during a tournament held at Baseball Heaven, the defendant.
The plaintiff slipped on artificial turf as he was running to second base and struck the second base bag with the inner portion of his left foot, allegedly sustaining injuries that included, inter alia, a fractured fibula. In 2012, the defendants had resurfaced the subject field, which was made of artificial turf, and installed stationary anchored bases. The plaintiff, by his mother, sued the defendants to recover, inter alia, damages for personal injuries. The plaintiffs alleged that the defendant was negligent in, among other things, failing to warn players of the use of stationary anchored bases instead of breakaway bases. The defendant moved for summary judgment, claiming the plaintiff assumed the risk of his injuries. The trial court granted the motion, and the plaintiffs appealed.
“The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks, has an appreciation of the nature of the risks, and voluntarily assumes the risks,” wrote the appeals court, citing see Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; Kaminer v Jericho Union Free Sch. Dist., 139 AD3d 1013, 1015, 34 N.Y.S.3d 88; Cruz v Longwood Cent. Sch. Dist., 110 AD3d 757, 973 N.Y.S.2d 260; Godwin v Russi, 62 AD3d 945, 879 N.Y.S.2d 567.
“Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity (see O’Connor v Hewlett-Woodmere Union Free Sch. Dist., 103 AD3d 862, 862-863, 959 N.Y.S.2d 750). Here, in support of their motion for summary judgment, the defendants submitted evidence, including the plaintiff’s deposition testimony, showing that the plaintiff was an experienced baseball player and that he was aware of the rigidity of the bases on the field prior to the accident. In opposition to the defendant’s prima facie showing, the plaintiffs failed to raise a triable of fact as to whether the plaintiff assumed the risk of his injuries, including whether the defendant unreasonably increased the risk of injury above and beyond the usual dangers inherent in the sport at the time of the accident by using stationary anchored bases as opposed to breakaway bases.”
Gonch v Baseball Heaven, Inc.; Sup. Ct. of N.Y., Appellate Division, Second Department; 2018-06330; 4/24/19
Attorneys of Record: Maker, Fragale & Di Costanzo, LLP, Rye, NY (Costantino Fragale of counsel), for appellants. Miranda Sambursky Slone Sklarin Verveniotis, LLP, Mineola, NY (Ondine Slone and Kelly Zic of counsel), for respondents.
