A New York state trial court has denied summary judgment to an indoor baseball facility, which unsuccessfully argued that a baseball player who injured himself while taking batting practice at the facility had assumed the risk.
Specifically, the court noted that the plaintiff did not have knowledge of an “injury-causing defect” or an “appreciation of the resultant risk.”
The incident occurred on September 23, 1999, when 14-year-old plaintiff John Demelio visited a recreational facility operated by defendant Brooklyn Indoor Sports Center Inc. In the batting cage, Demelio connected with a pitch that ricocheted off a pole that formed part of a batting cage at the facility. The ball struck the plaintiff in the eye, causing a detached retina.
The plaintiff sued, alleging that the defendant was negligent “in unreasonably creating an enhanced risk to batters by failing to properly and adequately pad the metal pole of the batting cage . . . ; in failing to hang netting between the batter and the pole a sufficient distance from the pole to prevent a struck ball from ricocheting off the pole and back to the batter; in failing to warn the batter of the risk of ricochet posed by the pole . . . ; in failing to inform the batter and or providing the batter with goggles or protective eye wear or head gear for use while batting; in maintaining the metal poles in close proximity to the batter without providing any means to protect the batter from a ricocheting struck ball.”
The defendant argued in its motion that “by using a baseball batting cage facility, the plaintiff assumed the risks inherent in the activity.”
The court went on to site an extensive list of cases in New York that support the Assumption of Risk Doctrine. One distinction in the cases, however, was that they typically applied to play or practice on a baseball field.
“This Court has been able to find only one decision addressing a claim that injury was caused by a defect in a batting cage, and two decisions addressing claims of injury resulting from the use of a pitching machine,” wrote the court.
The three cases were Hanna v State of New York (46 Misc 2d 9, 258 N.Y.S.2d 694 [Ct Cl 1965]), Hawley v Binghamton Mets Baseball Club, Inc. (262 AD2d 729, 691 N.Y.S.2d 626 [3d Dept 1999]), Harris v Cherry Valley-Springfield Sch. Dist. (305 AD2d 964, 760 N.Y.S.2d 768 [3d Dept 2003]).
“These three opinions illustrate that … where the injury is alleged to have been caused by some characteristic of play that is not itself ‘inherent’ in a sport as usually played, but is allegedly caused instead by some addition to or modification of the activity, such as a batting cage or pitching machine, the plaintiff’s appreciation of the risk must be determined by reference to the addition or modification. In other words, the ‘mechanism’ of the injury consists of, or at least includes, the activity in the manner in which it is conducted. A defendant seeking summary dismissal of the plaintiff’s claim in such a case must show prima facie that the risk under those circumstances was appreciated and accepted. As will appear, Defendant here has failed to do so.”
The court went on to restate the plaintiff’s argument that his injury “was caused by defendant’s defectively designed, constructed and maintained safety device, the netting and frame separating each of the defendant’s batters boxes, and thus was not a risk inherent in the use of batting cages; rather, the risk that caused plaintiff’s injury was an enhanced risk and thus insufficient to establish the defense of assumption of the risk.”
The court found support for the plaintiff’s position in the testimony of its expert witness — Arthur H. Mittlestaedt, Jr., Ed. D., a sports and recreation safety consultant, who has been involved in approximately eight projects involving the planning, design and construction, including safety considerations, of batting cages.
The plaintiff’s expert, according to the court, “submitted an affidavit indicating that the facility created a dangerous condition over and above the usual dangers that were inherent in the sport by placing metal poles in close proximity to and within plaintiff’s forward hitting radius, creating a ricochet risk. The expert also concluded that it was contrary to accepted safety practices in the industry to attach the netting directly to the pole and leave the pole unpadded or unprotected from ball impact by properly hung netting. Any inference arising from the use of helmets was insufficient to satisfy the facility’s burden.”
John Demelio v. Playmakers, Inc., et al.; S.Ct New York, Kings Co.; 2008 NY Slip Op 28133; 855 N.Y.S.2d 878; 2008 N.Y. Misc. LEXIS 1977; 239 N.Y.L.J. 76; 4/8/08
Attorneys of Record: (for plaintiff) William Gardner of Gardiner & Nolan. (for defendant) Dennis S. Heffernan of Baxter, Smith, Tassan & Shapiro, P.C.