By Jon Heshka, Associate Professor at Thompson Rivers University
The Supreme Court of New York reaffirmed in March 2021 that infant minors, as young as 13-years old, can voluntarily assume risks inherent in playing baseball, which in this instance included injuries sustained from a collision with a baserunner wearing metal cleats who slid into the third baseman.
Fabian Torres, playing third base, was injured when a baserunner wearing metal cleats slid into the base and collided with his left shin.
In Torres v. Loisaida, Inc., 2021 N.Y. App. Div. LEXIS 1974 *; 2021 NY Slip Op 01875 **; 2021 WL 1132875, the Supreme Court of New York, Appellate Division, First Department upheld an October 2019 order of the Supreme Court, Bronx County holding that: “Since recovery is precluded by the fact that he assumed the risks inherent in playing baseball, plaintiffs may not recover under a theory of negligent supervision.”
In granting summary judgment to the defendant Felix Millian Little League’s motion to dismiss the complaint, the court built on a long line of legal authority involving baseball including Navarro v City of New York, 87 AD3d 877, 877-878, 929 N.Y.S.2d 236 [1st Dept 2011]).
In Navarro, the 16-year-old infant plaintiff was injured when, during an elective high school softball class, she was hit by a bat wielded by another player hitting ground balls in warm-up. Chelise Navarro told the other player, consistent with the teacher’s instructions for practice drills, that she should not take full swings. Upon being handed the bat, however, the player immediately threw the ball in the air and took a full swing before plaintiff had time to get out of the way. As a result, the bat hit Navarro on the cheek, causing injury.
The court found that a participant in an athletic activity is deemed to have assumed “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 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 ).
In establishing whether the injury sustained fell within the ballpark of the risks ordinarily associated with the game, the court found that it is well established that “‘the danger associated with people swinging bats … while warming up for the game’ is inherent in the game of baseball” (Roberts v. Boys & Girls Republic, Inc., 51 A.D.3d 246, 248, 850 N.Y.S.2d 38 , affd. 10 N.Y.3d 889, 861 N.Y.S.2d 603, 891 N.E.2d 719 , quoting Napoli v. Mount Alvernia, Inc., 239 A.D.2d 325, 326, 657 N.Y.S.2d 197 .
The court in Navarro also found that there was no evidence that her injury resulted from any “unassumed, concealed or unreasonably increased risks” (Benitez v. New York Bd. of Educ., 73 N.Y.2d 650, 658, 543 N.Y.S.2d 29, 541 N.E.2d 29 ).
Similarly, the court in Torres rejected the argument that the baserunner’s metal cleats created an enhanced or concealed risk that was not assumed. Both the 13-year-old infant plaintiff and his father were aware the baserunner was wearing metal cleats and the wearing of such cleats was permitted under the little league rules.
Citing Bukowski v Clarkson Univ., 19 NY3d 353, 356-357, 971 N.E.2d 849, 948 N.Y.S.2d 568 , the court in Torres also rejected the argument that the little league failed to provide safety equipment that would have prevented the inherent risks.
In Burkowski, a college baseball pitcher was injured after being hit by a line drive during indoor practice. Plaintiff alleged that the risk of being hit by a batted ball was enhanced due to the multi-colored pitching backdrop and low lighting at the indoor facility, which made it harder to see the white ball, and the failure to use an L-screen. The court held that ordinary reasonable care must be exercised to protect student-athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks. “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 439 ).
The court in Burkowski also held said that risks which are commonly encountered or “inherent” in a sport, such as being struck by a ball or bat in baseball, are “risks [for] which various participants are legally deemed to have accepted personal responsibility” (Morgan, 90 NY2d at 484).
In addition to being struck by a ball or bat in baseball, we can add to the list of inherent risks a baseman being injured by a baserunner wearing metal cleats sliding into the base. Torres is a reminder that the assumption of risk doctrine applies where a consenting participant, even 13-years of age, in sporting activities “is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” (Morgan v State, 90 NY2d 471, 484 ).