Consolidated Appeal Examining Primary Assumption of Risk Produced Different Results

Jun 16, 2023

By Rachel S. Silverman

Two cases involving the Assumption of Risk Doctrine in New York State Court produced two different results.

In the Secky case, Plaintiff had played basketball at the highest amateur student level and was injured during a drill where players competed to retrieve a rebound. The coach had explained that the boundary lines of the court did not apply to this drill and only major fouls would be called. The bleachers were retracted. When Plaintiff chased a loose ball towards the bleachers, another player collided with him, causing Plaintiff to fall into the bleachers. He injured his right shoulder.

Plaintiff, through his mother, sued the coach and the school district. Defendants moved for summary judgment. The New York Supreme Court denied Defendants’ motion for summary judgment because of conflicting expert testimony. But the Appellate Division reversed the decision. The Appellate Division stated that eliminating the boundary lines during the drill did not unreasonably increase the inherent risks of the drill or the sport of basketball. The Court of Appeals for New York confirmed summary judgment was properly granted because the injuries the player sustained from colliding with another player were inherent to the sport of basketball. The court further explained the risk of collision was with an open and obvious item near the basketball court and thus was inherent in playing on that court. Therefore, Plaintiff assumed the risk of injury he experienced.

However, in Grady, the court stated summary judgment should have been denied because there are issues of fact that need to be resolved by a jury. Here, Plaintiff, a senior on the Chenango Valley High School varsity baseball team, was injured during a fast-moving, intricate drill with multiple balls in play. The drill involved two coaches hitting balls to players located in the infield. One coach hit to the third baseman, who would then throw to first base, while another coach hit to the shortstop, who would throw to the second baseman, who would then throw to a player at “short first base” (Grady, 2023, p.6). The drill required baseballs from two parts of the infield to be thrown to two players in the same area by first base, so the coaches placed a seven-by-seven protective screen between the regulation first baseman and the short first baseman. Plaintiff was one of the players assigned to first base when he was hit by an errant ball intended for the short first baseman. The ball bypassed the short first baseman and the protective screen and hit him on the right side of his face. It caused severe injury to his eye, including significant vision loss.

Plaintiff sued the coaches, and the school district. Defendants then moved for summary judgment. The New York Supreme Court granted Defendants’ motion for summary judgment, and the Appellate Division affirmed. The Court of Appeals for New York, however, reversed the decision because Defendants did not prove Plaintiff’s injury was an inherent risk of baseball. Since it was a unique and dangerous practice drill over and above the usual dangers inherent to the sport of baseball, the court explained a jury should be permitted to determine whether Plaintiff’s injury was the result of an inherent risk or the risks were “concealed or unreasonably enhanced” (Grady, 2023, p.7) by the complexity of the drill with only a small protective screen.


Grady v. Chenango Valley Cent. Sch. Dist., 2023 N.Y. LEXIS 718 *; 2023 NY Slip Op 02142 **; 2023 WL 3102723

Rachel Silverman is an Assistant Professor for the Sports Management Program in the Kinesiology and Sport Sciences Department at the University of Nebraska Kearney. She is a doctoral student (ABD) at Troy University. Her research agenda focuses on women in sports, including legal, sociological, and ethical aspects of sports management.

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