By Gary J. Chester, Senior Writer
A common sign at Major League Baseball stadiums and other ballfields throughout the country reads, “NO PEPPER.” This commands baseball teams to refrain from using a pregame drill that involves a batter rapidly hitting balls to several fielders about 20 feet away. It is prohibited because stray balls could strike nearby players who are not participating.
A recent New York case illustrates that not all baseball managers avoid risky drills that can seriously injure innocent players.
In Grady v. Chenango Valley Central School District, Slip. Op. 00468 (N.Y. Supreme Court, Appellate Division 2021), a New York appellate court ruled that a high school student who was struck by an errant baseball during an unusual and circus-like baseball drill employed by a junior varsity coach assumed the risk of the injury.
THE FACTS
The plaintiff was a high school senior and a member of the defendant’s varsity baseball team. He was participating in an early season practice that was also a tryout for the varsity and junior varsity teams. The coaches employed a unique drill that involved players rotating in and out of two first base positions and fielders throwing baseballs to both first basemen simultaneously. The plaintiff was struck in the eye by an errant throw while he was lined up behind one of the first basemen, awaiting his turn to take throws.
The complaint alleged that the district was negligent by conducting multiple infield drills with multiple balls in play without using proper safety precautions and equipment. Following discovery, the school district moved to dismiss based on the doctrine of assumption of risk. The trial court granted the motion and the student-athlete filed an appeal.
THE RULING
The Appellate Division affirmed the trial court’s ruling by a 3-2 vote. Writing for the majority, Justice Robert C. Mulvey acknowledged that assumption of risk applies to obvious and ordinary risks inherent in an activity, but not to risks that are concealed or enhanced. The court found that using multiple baseballs in a drill is common and that the plaintiff was aware of the risk of being struck, as he saw errant throws during the drill and had discussed the danger with other players in line before the incident occurred.
Notably, the court stated: “[P]laintiff did not raise his concerns with a coach and continued to participate in the drill.”
THE DISSENT
The two dissenting justices wrote separate opinions. The first dissent (by Justice Stan L. Pritzger) argued that the use of an inadequate safety measure – a screen designed for a different purpose – created a fact issue as to whether conditions were less safe than they appeared to be.
The second and more detailed dissent (by Justice John P. Colangelo) observed that the risk to the plaintiff was not a risk inherent in the game of baseball, but from a drill that “involved bats and balls, but otherwise bore only a resemblance to the game of baseball itself…[and was] more reminiscent of Ringling Brothers than Abner Doubleday…”
The dissent acknowledged that the plaintiff and other players saw several errant throws elude both the first basemen and the safety screen, prompting them to commiserate that the drill was dangerous. Justice Colangelo wrote: “They did not mention their concerns to either coach, but, being teenage boys intent on making the team, they – including plaintiff – continued to participate in the drill.”
But this justice asserted that these facts do not amount to assumption of risk as a matter of law.
The dissent further stated that activities derived from a sport are not shielded from tort liability “if they involve risks not inherent to the sport from which they are derived.” These include “unassumed, concealed or unreasonably increased risks.” [Benitez v. New York City Bd. Of Ed., 73 N.Y. 2d 650, 658 (1989).] The dissent argued that a jury should decide if the drill was sufficiently related to the game of baseball and if it presented a risk of harm over and above the customary dangers inherent to the sport.
THE TAKEAWAY
The two dissenting justices have essentially written the plaintiff’s brief should he appeal to the New York Court of Appeals. The majority deals with the thorny legal issues of primary assumption of risk rather tersely, failing to recognize that the plaintiff and others competing for spots on their high school baseball team were understandably reluctant to challenge the judgment and authority of their coaches. This was not a pick-up game where the plaintiff could simply opt out and go find another ballfield.
Nor does the majority address the issue of whether the safety screen might have enhanced the risk of harm. Finally, the majority also ignores the many precedents cited by Justice Colangelo in which New York courts have held that unusual directions from a coach created a jury issue as to whether a risk was enhanced. A prime example is Weinberger v. Solomon Schechter School of Westchester, 961 N.Y.S. 2d 178 (2013), where coaches conducted a drill in which the pitcher’s mound was closer to home plate than in a game, without using a protective screen for the pitcher.
It would have been instructive for the majority to explain how using two first basemen and multiple baseballs is distinguishable from pitching from a shorter distance than is customary during an actual game. That is a question that will likely be raised should the matter come before the New York Court of Appeals.
