A New York state appeals court has affirmed a supreme court’s grant of summary judgement to a school district in a case in which the school district was sued by one of its students, who was hit in the head by a baseball during baseball practice.
The incident in question occurred on March 10, 2012. Plaintiff Evan Kaminer was struck in the head by an errant baseball during his high school baseball team’s practice. Kaminer had completed a fielding drill and was walking toward the bench when he was inadvertently struck in the temple by a ball thrown by a coach, who was wearing fleece winter gloves on that cold-weather day.
Kaminer sued the Jericho Union Free School District to recover damages.
The court noted that at his General Municipal Law § 50-h hearing, Kaminer testified that he had played little league and travel baseball for a number of years, was aware of the danger posed by errantly or wildly thrown baseballs, and had been struck by baseballs on prior occasions while fielding and batting.
The school district moved for summary judgment, relying upon the doctrine of primary assumption of the risk, and submitting Kaminer’s hearing testimony, among other things. In opposition, Kaminer argued that primary assumption of the risk did not apply, as the coach had unreasonably enhanced the risk of being struck by a baseball by throwing the ball while wearing a fleece glove, which impaired his ability to properly grip the ball.
The supreme court granted the defendant’s motion, leading to the appeal.
The appeals court noted that “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” (Bukowski v Clarkson Univ., 19 NY3d 353, 356, 971 N.E.2d 849, 948 N.Y.S.2d 568, quoting Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421).
Further, “an educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks” (Bukowski v Clarkson Univ., 19 NY3d at 356). “Defendant’s duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be” (Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49). “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (id. at 439). “It is not necessary to the application of the doctrine that the injured plaintiff may have foreseen the exact manner in which the injury occurred so long as he or she is aware of the potential for injury of the mechanism from which the injury results'” (Joseph v New York Racing Assn., 28 AD3d 105, 108, 809 N.Y.S.2d 526, quoting Maddox v City of New York, 66 NY2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726).
In summarizing its decision, the appeals court wrote that the school district “met its prima facie burden for summary judgment dismissing the complaint by establishing that Evan was aware of and appreciated the risks inherent in the sport of baseball, including the risk of being struck by an errant baseball, and that he voluntarily assumed that risk (see Fithian v Sag Harbor Union Free School Dist., 54 AD3d 719, 720, 864 N.Y.S.2d 456; Muniz v Warwick School Dist., 293 AD2d 724, 743 N.Y.S.2d 113). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the coach’s use of a fleece winter glove to throw the baseball subjected Evan to a concealed or unreasonably increased risk (see Sanchez v City of New York, 25 AD3d 776, 777, 808 N.Y.S.2d 422). Notably, ‘the primary assumption of risk doctrine also encompasses risks involving less than optimal conditions’ (Bukowski v Clarkson Univ., 19 NY3d at 356). Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.”
Evan Kaminer, etc., et al. v. Jericho Union Free School District; S.Ct.N.Y., App. Div., 2d Dept; 139 A.D.3d 1013; 2016 N.Y. App. Div. LEXIS 3886; 2016 NY Slip Op 04024; 5/25/16
Attorneys of Record: (for appellants) Elovich & Adell, Long Beach, NY (A. Trudy Adell, Mitchel Sommer, and Darryn Solotoff of counsel). (for respondent) Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, NY (Kathleen D. Foley of counsel).
