A New York State appellate court has reversed a trial court and granted a municipality’s summary judgment motion in a case where a baseball player injured himself on the field and alleged that the municipality was negligent.
The plaintiff was injured when he fell while attempting to catch a fly ball at the border of the dirt infield and grass outfield on a field at Eisenhower Park, Nassau County. He sued the County and initially was successful when the court denied the defendant’s motion for summary judgment.
The appeals court, however, reversed, finding that the assumption of risk doctrine applied. It found specifically that the player was aware of a “lip of dirt that accumulated at the infield/outfield border and that he assumed the risk of injury when he chose to play on the field. While the player testified at a deposition that he believed that defendants had replaced the infield/outfield border with loose, sod-like pieces, such speculative testimony was insufficient to raise a triable issue of fact.”
The appeals court noted that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421).
Further, “it is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” (Maddox v City of New York, 66 NY2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726).
“The doctrine of assumption of risk ‘encompasses risks associated with the construction of the playing surface [citations omitted]’ (Morlock v Town of N. Hempstead, 12 AD3d 652, 652, 785 N.Y.S.2d 123).”
Vito Mondelli v. County of Nassau, et al.; S.Ct.N.Y., App. Div., 2d Dept.; (Index No. 6029/05), 2007-00720, 2008 NY Slip Op 2801; 2008 N.Y. App. Div. LEXIS 2822; 3/25/08
Attorneys of Record: (for appellants) Lorna B. Goodman, County Attorney, Mineola, N.Y. (Gerald R. Podlesak of counsel). (for respondent) Levin & Chetkof, LLP, Westbury, N.Y. (Howard A. Chetkof of counsel).
