In Bukowski v. Clarkson University, a sharply split appeals court has held that an injured pitcher, who was struck in the face by a baseball during an indoor “live” batting practice, assumed the risk of injury and cannot sue his school. The pitcher, Shane Bukowski, admitted that he was an experienced baseball player. He argued, however, that the inherent risk of being struck by an errant baseball was increased because the defendants did not require protective screening for indoor “live” practices and because the poor lighting conditions made it more difficult for him to see and to react to the batted balls.
At trial, the court tossed the pitcher’s negligence action. The court rejected his arguments that the risk of injury was unreasonably increased due to an absence of an L-screen (the screen which protects a pitcher when balls are batted directly at them) or because the indoor lighting conditions were insufficient.
The appellate court determined that the evidence presented at trial (including expert testimony) could not defeat an assumption of risk defense. Under New York law, the risks assumed by athletes include the risk of injury presented by less than optimal playing conditions. Voluntary participants in sporting activities, such as Mr. Bukowski, are deemed to have assumed the commonly appreciated risks inherent in the activity. These risks include being struck by a line drive during batting practice. The presence of protective screening was irrelevant: the appellate court held that Bukowski’s assumption of risk extended to risks that are engendered by less than optimal playing conditions, so long as those conditions are open and obvious and readily appreciable.
The two dissenting justices did not agree: they noted that a participant does not assume the risk of injury presented by concealed or unreasonably increased risks beyond those inherent in the sport. They held that the plaintiff offered “ample evidence” from which a jury could conclude that the risk of injury was unreasonably increased and that, commensurate with that finding, that the defendants owed a duty to protect him from those risks.
Because the appellate court was divided 3-2, New York’s Court of Appeals may agree to hear the case. If the Court of Appeals does so, Bukowski may get another chance at bat.
Carla Varriale, Esq. is a partner in Havkins, Rosenfeld, Ritzert & Varriale, LLP in New York. Her legal practice focuses on legal issues of interest to sports, entertainment and recreational teams and venues. She also teaches “Sports Law and Ethics” at Columbia University’s School of Continuing Education. She can be reached at 646-747-5115 and carla.varriale@hrrvlaw.com.
