A trial court in the state of New York has denied the City of New York’s motion for summary judgment in a case where a plaintiff was a coaching a high school baseball team when he was struck by a baseball.
The court found specifically that the plaintiff’s experts successfully demonstrated that “the lack of protective fencing on the third-base side” may have “significantly contributed” to the plaintiff’s injury.
James Reyes was coaching the St. Peter’s High School team from inside the third-base dugout when he was struck in the face by a foul ball on April 12, 2004. The incident occurred on a City of New York playground in Staten Island, New York. The plaintiff sued, alleging that “the City’s failure to properly maintain and repair protective fencing at the ball field, more particularly, that which should have been located between the entrance to the third-base dugout and home plate, was a proximate cause of his injury.”
The City moved to dismiss, arguing that the claim is barred, e.g., by plaintiff’s failure to allege that the fencing was defective in his notice of claim. Alternatively, the City sought summary judgment on the ground that plaintiff’s injuries are the product of an assumed risk inherent in the sport of baseball.
The court noted that on a motion to dismiss for failure to state a cause of action, “the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference. (EBC I, Inc. v Goldman Sachs & Co., 5 NY3d 11, 19, 832 N.E.2d 26, 799 N.Y.S.2d 170
“Accordingly, since it is well settled that ‘a landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, including [e.g.] the likelihood of injury to a third party’ (Alexander v New York City Tr., 34 AD3d 312, 313, 824 N.Y.S.2d 262 [1st Dept 2006] [citations omitted]), plaintiff has sufficiently stated a cause of action by alleging that the City ‘had actual and constructive knowledge of the inadequate protective fencing’ that purportedly resulted in his injuries (cf. EBCI, Inc. v Goldman Sachs & Co., 5 NY3d at 16).’”
The court then turned to the summary judgment aspect of the City’s motion.
The court wrote that it “is enjoined to accept the evidence tendered by the opposing party as true, and ‘must deny the motion if there is even arguably any doubt as to the existence of a triable issue’ (Fleming v Graham, 34 AD3d 525, 824 N.Y.S.2d 376 [2d Dept 2006] quoting Baker v Briarcliff School Dist., 205 A.D.2d 652, 653, 613 N.Y.S.2d 660 [2d Dept 1994] [internal quotation marks omitted]).
In actions, as here, predicated on injuries allegedly sustained during voluntary participation in a sporting or recreational event, the doctrine of primary assumption of risk operates as a measure of the duty of a landowner, e.g., ‘to exercise [reasonable] care to make the conditions as safe as they appear to be’ (Turcotte v Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]; see Morgan v State, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]).
“Here, defendant has made a prima facie showing of its entitlement to judgment as a matter of law by establishing that plaintiff, an experienced baseball player and coach, was aware of the risk of being struck by a foul ball while inside the third-base dugout.
“Nonetheless, plaintiff avers in opposition to the motion that the fencing in front of this third-base dugout was inadequate to provide proper protection, and was in such a state of disrepair as to present a uniquely dangerous condition beyond that inherent in the sport itself. In support, plaintiff has submitted the affidavits of two experts who state that the absence of a fenced barrier between the entrance to the third-base dugout and home plate is not only violative of the accepted standards of playground safety, but served to create a uniquely hazardous condition that did not exist, e.g., on the first-base side of the baseball diamond, where just such a section of fence between the entrance to the dugout and home plate was in evidence. In addition, plaintiff’s experts were unanimous in the opinion that the lack of protective fencing on the third-base side ‘significantly contributed’ to plaintiff’s injury.”
The court wrote that given the “unrebutted evidence,” the plaintiff “sufficiently raised triable issues of fact as to whether, e.g., the City is chargeable with knowledge of the lack of fencing, the effect of such knowledge upon its obligation to exercise reasonable care under the circumstances, and/or the extent, if any, to which plaintiff should be deemed to have assumed the increased hazard posed by this condition.”
James Reyes and Geraldine Reyes v. City of New York; S.Ct. of N.Y., Richmond County; 101772/05; 2007 NY Slip Op 27103; 2007 N.Y. Misc. LEXIS 849; 3/12/07
Attorneys of Record: (for defendants) Corporation Counsel of the City of New York, Staten Island, N.Y.; (for plaintiff) Russo, Scamardella & D’amato, P.C., Staten Island, N.Y.
