New York High Court Affirms that Plaintiff Assumed Risk of Getting Struck

Jun 20, 2008

The Court of Appeals for the State of New York has affirmed a decision from the Appellate Division that the mother of a baseball player assumed the risk of injury when she was struck by a baseball bat off the actual playing field.
With minimal comment, the high court found that because the plaintiff “concededly observed batting equipment and players swinging bats in the area where the accident occurred, the Appellate Division correctly held that she had assumed the risk of her injuries, and properly affirmed the Supreme Court order dismissing the complaint (see Morgan v State of New York, 90 NY2d 471 [1997]; see also Trevett v City of Little Falls, 6 NY3d 884 [2006]).”
The appellate summarized the setting of the incident, thusly: “While present at a baseball field to watch her son practice with his team, (the plaintiff) sustained injuries when she strayed into the path of a bat being swung by a player taking a practice swing along the off-field side of a chain-link fence running parallel and adjacent to the field’s third-base sideline.
“Had the accident not occurred, the player, upon the completion of his practice swings, would have passed through an opening in the fence near home plate to take his turn at bat in the then ongoing scrimmage game. The question posed is whether plaintiff may be deemed to have assumed the risk that resulted in her injury.”
Linda Roberts, et al. v. Boys and Girls Republic, Inc.
et al.; Ct. App. N.Y.; 1 No. 134 SSM 11; 6/5/08
Attorneys of Record: (for appellants) Gregory J. Cannata & Associates, Irvington
(Diane Welch Bando and Gregory J. Cannata of counsel). (for respondents) Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg and Steven B. Prystowksy of


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