Opinion
18449/02.
Decided May 25, 2004.
Upon the foregoing papers, it is ordered that this application by defendant, John Knowles, for the summary dismissal of plaintiffs' complaint is determined as hereinafter set forth.
The instant action was initiated to recover monetary damages for the personal injuries sustained by plaintiff, Michael P. Licitra, while playing softball at the Garden City Community Park on the evening of September 23, 2001. At that time, Messrs Licitra and Knowles were members of opposing teams involved in an adult softball league operating under the 2001 ASA Slo-Pitch Softball Rules adopted by the Garden City Recreation Department. (Knowles, EBT p. 18)
Pursuant to a stipulation executed by and between counsel for the respective parties, the action against the Incorporated Village of Garden City has been discontinued.
The incident on which this litigation is predicated occurred when the individual defendant was attempting to score from third base on a "grounder" fielded by the opposing team's second baseman. The ensuing throw "home" was caught by the plaintiff, his team's catcher, who sustained a significant injury to his left knee in a collision with the defendant/baserunner.
The cornerstone on which this application is premised is the contention that the defendant owed no definable duty of care to the plaintiff. If truly no duty were owed, then the defendant would prevail, as absent a duty of care there can be neither breach nor liability. (see, Marasco v. C.D.R. Electronics Security Surveillance Systems Company, 1 AD3d 578)
Though the defendant concedes diving (Knowles, EBT p. 8) head first (Knowles, EBT p. 12) and making contact with the plaintiff (Knowles, EBT p. 15), and though no issue is taken with the nexus between such contact and the injury sustained, it is urged that the risk of injury is inherent in the sport, and that such risk was assumed by the plaintiff through his voluntary participation in the league's games.
In essence, the movant argues, through counsel, that plaintiff's knowing election to play bars his recovery for it effectively eliminated the defendant's duty of care. (see, Alexander's Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7 B, C1411:1 C1411:2; see also, Arbegast v. Board of Education of South New Berlin Central School, 65 NY2d 161, 170; Turcotte v. Fell, 68 NY2d 432, 437-439)
"A plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law (see Morgan v. State of New York, 90 NY2d 471; Milea v. Our Lady of Miracles R.C. Church, 290 AD2d 424; Loewenthal v. Catskill Funland, 237 AD2d 262). A voluntary participant in a sporting or recreational activity consents to those commonly-appreciated risks which are inherent in and arise out of the nature of such activity generally, and which flow from the participation (see Morgan v. State of New York, supra at 484; Milea v. Our Lady of Miracles R.C. Church, supra)." (Leslie v. Splish Splash at Adventureland, Inc., 1 AD3d 320, 321)
The risk of injury is clearly inherent in contact sports (see, Cusano v. Board of Education of Liverpool Central School District, 275 AD2d 1026 [4th Dept.]), such as softball. However, the preclusive principle which emanates therefrom is subject to the caveat recognized by then Chief Judge Cardozo who indicated: "One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary * * *." (Murphy v. Steeplechase Amusement Co., Inc., 250 NY 479, 482 [emphasis supplied])
In response to the defendant's application, opposing counsel directs the Court's attention to the rules of play adopted by the league to which the defendant and plaintiff subscribed.
Specifically, plaintiffs rely on Rule 11 which provides, in pertinent part, as follows: If any player has possession of the ball, the runner MUST either slide, avoid the fielder or surrender to the tag. (Rule 11, Garden City Recreation Department Men's Over 35 Softball League Rules [emphasis contained in original])
Rule 11, referred to by both plaintiff and defendant as the Pete Rose Rule, was implemented as a safety measure to avoid injuries that were likely to occur if a baserunner was permitted to "run through somebody to get to another base". (Knowles, EBT p. 18)
The defendant acknowledged during the course of his deposition that the Garden City Recreational Department implemented both "ground" rules and safety rules, including the Pete Rose Rule. (Knowles, EBT pp 17-18) He further indicated that the rules of the Garden City Recreation Department were based on the ASA Slo-Pitch Softball Rules, a copy of which he had purchased. (Knowles, EBT pp. 18-19)
Though moving counsel takes issue with the provenance of the ASA rules proffered by the plaintiff, the defendant's failure to submit a copy of the rules he had obtained and under which he admittedly played is conspicuous.
Fundamentally, when an organization adopts rules of conduct which define its members' duties requiring, as relevant here, a baserunner to slide, to avoid the fielder or to submit to a tag, its violation may expose the offender to liability for any resulting personal injury. (see, generally, Prince, Richardson on Evidence [11th Edition Farrell], § 4-604)
While the plaintiff, a catcher, assumed the risks inherent in the sport, he did not assume the risk of another player's reckless conduct or conduct that materially and unreasonably increased the sport's inherent risks.
Significantly, a "participant does not assume the risk of another's negligent play which enhances the risk (see, Martin v. Luther, 227 AD2d 859; Jackson v. Livingston Country Club, 55 AD2d 1045)."(Convey v. City of Rye School District, 271 AD2d 154, 158; see also, Jacobs v. Kent, 303 AD2d 1000 [4th Dept.]; Duncan v. Kelly, 249 AD2d 802 [3d Dept.])
While the risk of injury may be inherent in contact sports, it cannot be gainsaid that such risks would be materially and unreasonably enhanced if rules of safety designed to protect its players were ignored or flouted. In this regard it is appropriate to note that the "element of risk assumed by plaintiff did not relieve defendant from the obligation of using reasonable care to guard against a risk which might reasonably be anticipated." (Baker v. Eastman Kodak Company, 34 AD2d 886, affd 28 NY2d 636)
The conflict in the description of the occurrence presents issues of credibility beyond the purview of summary judgment practice. (see, S A Realty Management Corp. v. Prestigiacomo, 306 AD2d 339)
"It is axiomatic that summary judgment is a drastic remedy which should only be granted if it is clear that no material issues of fact have been presented. Issue finding, rather than issue determination, is the court's function (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395). If there is any doubt about the existence of a triable issue of fact or if a material issue of fact is arguable, summary judgment should be denied (Museums at Stony Brook v. Village of Patchogue Fire Dept., 146 AD2d 572)." (Celardo v. Bell, 222 AD2d 547, 548)
"Moreover, in determining a motion for summary judgment, facts alleged by the nonmoving party and inferences which may be drawn from them must be accepted as true (see O'Neill v. Town of Fishkill, 134 AD2d 487, 489)." (Doize v. Holiday Inn Ronkonkoma, ___ AD3d ___, 774 NYS2d 792)
Application of the foregoing principles insulates the plaintiffs' complaint from dismissal at this juncture.
Whether Rule 11 was implicated, that is, whether the plaintiff had sufficient possession of the ball prior to the collision for the invocation of the rule, and, if so, whether the defendant's election to dive, head long violated the rule and unreasonably enhanced the risk of injury inherent in the sport are among the material triable factual issues presented.
Based on the foregoing, the instant application is denied.