Opinion
004066/16
02-23-2018
Molly FOLGAR, an infant by her father and natural guardian, Ronald Folgar, and Ronald Folgar, individually, Plaintiffs, v. UNIONDALE UNION FREE SCHOOL DISTRICT, Uniondale School District, and Turtle Hook Middle School, Defendants.
Lawrence J. Wertheimer, P.C., 225 Broadway, 38th Fl., New York, NY 10007, Attorneys for the Plaintiffs. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, 333 Earle Ovington Boulevard, Uniondale, NY 11553, Attorneys for the Defendants.
Lawrence J. Wertheimer, P.C., 225 Broadway, 38th Fl., New York, NY 10007, Attorneys for the Plaintiffs.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, 333 Earle Ovington Boulevard, Uniondale, NY 11553, Attorneys for the Defendants.
Randy Sue Marber, J.
Papers Submitted:
Notice of Motion x
Affirmation in Opposition x
Reply Affirmation x
Upon the foregoing papers, the motion by the Defendants pursuant to CPLR § 3212, seeking an Order awarding them summary judgment and dismissing the complaint of the Plaintiffs, MOLLY FOLGAR ("MOLLY"), an infant by her father and natural guardian, RONALD FOLGAR, and RONALD FOLGAR, individually, is decided as hereinafter provided.
The Plaintiffs commenced this action seeking damages for personal injuries allegedly sustained by the infant Plaintiff, MOLLY, on April 29, 2015, at the Turtle Hook Middle School located at 975 Jerusalem Avenue, Uniondale, County of Nassau, New York (hereinafter the "subject school"). Specifically, the Plaintiffs allege that MOLLY was injured when she was struck by a bat of a teammate during a softball game (See the Notice of Claim, Summons, and Verified Complaint attached to the Notice of Motion as Exhibit "A").
According to the Plaintiffs' Bill of Particulars, the Defendants were allegedly negligent in that they, inter alia : failed to properly supervise, control, and/or direct the students and/or softball team members; allowed a hazard and danger in and around the dugout area; caused, allowed, and/or created an unreasonable risk of harm; and failed to properly train and/or supervise their employees, servants, agents, teachers, athletic directors and/or coaches in proper and adequate safety, supervision, teaching and coaching affiliated with student softball (See Plaintiffs' Verified Bill of Particulars attached to the Notice of Motion as Exhibit "C") It is further alleged that the Defendants created and knew or should of known of the dangerous, unsafe, and hazardous condition in the area of the dugout. (Id. ).
The Defendants now move for summary judgment on the grounds that: (i) the infant Plaintiff, MOLLY, assumed the inherent risk of the injuries she allegedly sustained by voluntarily participating in an extra-curricular, athletic event; (ii) MOLLY's injuries were not proximately caused by any negligent supervision on the part of the Defendants; and (iii) the area where the incident occurred was open and obvious, posing no danger to MOLLY.
MOLLY testified at a hearing pursuant to General Municipal Law, § 50–h on February 18, 2016, and subsequently testified at an Examination Before Trial ("EBT"), conducted on January 18, 2017 (See 50–h and EBT transcripts, attached to the Notice of Motion as Exhibit "D" and "F", respectively). MOLLY testified that, when she was in seventh grade, she participated in her school's softball team as a member. Her father signed a permission slip, allowing her to participate. Practices were held daily after school from 3:30 p.m. until 5:00 p.m. or 6:00 p.m. (See Exhibit "D" at p. 14). At some point during practices, the softball coach, Nichole Bowen (hereinafter "Coach Bowen"), instructed the team on batting. MOLLY testified that Coach Bowen advised all team members to stay far away from the bench when practicing or batting. Any team member who was not batting or warming up was instructed to be on or near the bench. Coach Bowen further instructed the team that after a team member was finished batting, she was to take off her helmet, leave it near the fence, and return to the bench (See Exhibit "F" at p. 29).
Based upon the testimony and photograph proffered herein, it is clear that the "dugout" is an area near home plate which is separated from the softball field by a fence. The fence continues along the first-base line. The parties' reference the "bench" located behind the fence in the "dugout".
MOLLY testified that Coach Bowen was present at the softball game when the incident took place. While her team was "at bat", Coach Bowen would stand near the fence and move "back and forth" to observe the team members on the softball field and on the bench. In addition to Coach Bowen, MOLLY testified that two (2) other teachers were at the game to supervise the student-spectators (See Exhibit "D" at pp. 30–32).
MOLLY testified that the incident occurred during the first softball game of the season after having had at least five (5) practices over a period of approximately a few weeks (See Exhibit "F" at p.16; see also Exhibit "D" at p. 19). MOLLY attested to the circumstances surrounding the incident as follows. She went up to bat and struck out. After striking out, MOLLY took off her helmet and left her bat at home plate. As MOLLY was coming away from home plate, she heard her aunt calling her name to take a photograph (See Exhibit "D" at pp. 32–36). Notably, MOLLY concedes that she did not return to the bench after her turn at bat, as previously instructed by Coach Bowen during the practices. Instead, MOLLY turned around to position herself by a garbage can near the fence so her aunt could take her photograph. The garbage can was located near the end of the fence along the first-base line. MOLLY and her father, RONALD FOLGAR, both testified as to the location where the photograph was taken and the location where the incident occurred (See the EBT testimony of RONALD FOLGAR attached to the Notice of Motion as Exhibit "E"; see also the photograph of a portion of the softball field attached as Exhibit "I"). Notably, neither location was near the bench in the dugout. Once the photograph was taken, MOLLY proceeded to walk towards the bench (See Exhibit "D" at pp. 37–39). Before arriving at the bench, MOLLY observed her teammate, Tonya, holding the handle of a bat with the other end of the bat on the ground. Despite her observations, MOLLY attempted to walk around Tonya, when she was struck in the mouth with Tonya's bat. MOLLY admitted that she did not observe Tonya swing the bat at any time before she was struck (See Exhibit "D" at pp. 41–43).
Coach Bowen testified at her EBT that, at the time of the incident in 2015, she was the only softball coach for approximately eighteen (18) student team members (See EBT transcript of Coach Bowen attached to the Notice of Motion as Exhibit "H"). The subject school provided the softball team members with bats and helmets (Id. at p. 25). Coach Bowen testified consistently with MOLLY in that she instructed the team regarding batting procedures during softball practices prior to the first game. More specifically, Coach Bowen instructed that, when a team member is next up to bat, she was to "warm-up" by swinging the bat in a designated area (Id. at pp. 27–28). The team members who were batting and warming up were instructed to wear helmets. Team members were also required to wear a helmet while running the bases on the softball field (Id. at p. 30–32). Coach Bowen further instructed that, if a team member was not warming up or at bat, she was to sit on the bench and pay attention to the game. She further confirmed that team members were instructed to return to the bench after their turn "at bat" (Id. at p. 41).
Coach Bowen attested that, the time of the incident, she was standing at third base in order to coach the team members on the field (i.e. running to home plate) (Id. at pp. 30–31). As per Coach Bowen, she did not witness MOLLY being struck by Tonya's bat, nor does she possess knowledge as to whether MOLLY returned to the bench after her turn to bat as instructed during practices.
In opposition to the instant motion, the Plaintiffs' counsel contends, in pertinent part, that the Defendants were negligent in failing to provide adequate safety equipment and failing to properly instruct the infant Plaintiff regarding the use of her helmet. Counsel for the Plaintiffs argues that MOLLY was a novice softball player at the time of the incident and due to her inexperience, she "naively" removed her helmet after striking out. The Plaintiffs claim that proper supervision would have prevented the injuries as MOLLY would not have taken off her helmet until she reached the dugout. Additionally, counsel for the Plaintiffs argues that the Defendants negligently placed the "warm-up area" in a dangerous location, between home plate and the dugout, which was not open and obvious.
This Court notes that the Plaintiffs do not address, and thus, do not dispute MOLLY's failure to return to the bench after her turn "at bat" as instructed by Coach Bowen.
LEGAL ANALYSIS
Summary judgment must be granted if the proponent makes "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact," and the opponent fails to rebut that showing (See Alvarez v. Prospect Hosp. , 68 NY2d 320 [1986] ).
Pursuant to the primary assumption of risk doctrine, it is well settled 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 NY2d. 471 [1997] ; see also Barretto v. City of New York , 229 AD2d 214 [1st Dept. 1997] ). The doctrine "requires not only knowledge of the injury causing defect but also appreciation of the resultant risk" ( Maddox v. City of New York , 66 NY2d 270, 278 [1985] ). The awareness of a risk ascribed to a particular individual "is not to be determined in a vacuum" but rather is "to be assessed against the background of the skill and experience of the particular plaintiff" (Id. ). An individual who participates in a sporting or recreational activity is deemed "to have consented to those injury causing events which are known, apparent, or reasonably foreseeable consequences of participation" ( Castello v. County of Nassau , 223 AD2d 571 [2d Dept. 1996] ; Convey v. City of Rye School District , 271 AD2d 154 [2d Dept. 2000] ; Turcotte v. Fell , 68 NY2d 432 [1986] ).
"[A] plaintiff also assumes risks attributable ‘to any open and obvious condition of the place where [the sporting activity] is carried on’ " ( Roberts v. Boys and Girls Republic, Inc., 51 AD3d 246, 247–248 [1st Dept. 2008] citing Maddox v. City of New York , 66 NY2d 270, 277 [1985] ).
"A defendant's duty, then, is limited under the doctrine to ‘exercising care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty’ " (See Roberts v. Boys and Girls Republic, Inc., 51 AD3d 246 [1st Dept. 2008] citing Turcotte v. Fell , 68 NY2d 432 [1986] ).
With the foregoing legal principles in mind, this Court finds that the Defendants established their prima facie entitlement to judgment as a matter of law.
The Appellate Division, Second Department, has already held that the swinging of a bat during a softball game is an inherent risk of the sport (See Napoli v. Mount Alvernia, Inc., 239 AD2d 325 [2d Dept. 1997] ). In Napoli , a case strikingly similar to the instant matter, the court found that the danger associated with players swinging bats on the sidelines while warming up for a baseball game is inherent in the sport.
In Roberts v. Boys and Girls Republic, Inc., 51 AD3d 246 [1st Dept. 2008], a bystander with limited knowledge of the sport was struck with a baseball bat when she voluntarily approached an off-field, on-deck area that was adjacent to where the baseball game was being played. Expanding on the principle set forth in Napoli , the Appellate Division, First Department, articulated that "appreciation of the risk posed by a swung bat does not require thorough knowledge of the sport; the risk of injury from such a mechanism was ‘perfectly obvious’ and thus assumed by plaintiff despite the claimed lacunae in her knowledge and experience of the game" ( Id. at 248 [internal citations omitted] ). In so finding, the court emphasized that "the danger associated with people swinging bats on the sidelines while warming up for the game is inherent in the game of baseball" and accordingly is "a risk assumed, even by child participants " (Id. citing Napoli, supra [emphasis added] ). Here, MOLLY assumed the risk of harm resulting from the swinging of Tanya's bat despite the claimed gaps in MOLLY's knowledge and experience of the game of softball.
The applicable reasonable care standard does not impose an obligation on schools, during an extra-curricular athletic activity, to ensure the safety of a student against the consequences of her own independent or ill-advised acts unrelated to the sport she is engaged in (See Barretto v. City of New York , 229 AD2d 214 [1st Dept. 1997] ; Benitez v. New York City Board of Education, 73 NY2d 650 [1989] ). The facts presented here are even more compelling than in Roberts , warranting the conclusion that MOLLY must be deemed to have assumed the risk of harm based on her own ill-advised conduct. Indeed, MOLLY attended several practices prior to the softball game, during which she admits to being instructed by Coach Bowen on the fundamentals of the sport, as well as safety procedures regarding batting. The record is devoid of any evidence that MOLLY did not fully comprehend the perfectly obvious risk posed by a swung bat, particularly in light of her recent use of the designated warm-up batting practice area, prior to batting herself, as well as her decision to walk around that area after having observed Tanya with a bat in her hand. In this regard, the Defendants cannot be found to have unreasonably increased the risk of harm to the infant Plaintiff where she admittedly chose to stop for a photograph instead of promptly returning to the bench after her turn at bat as previously instructed by Coach Bowen. The locations indicated by both MOLLY and her father, RONALD FOLGAR, as to where the photograph was taken and where the incident took place, were clearly not near the bench in the dugout. Importantly, after taking the photograph, MOLLY knowingly attempted to "walk around" a teammate who was preparing to warm-up. Clearly, MOLLY herself created the peril posed by the impending swing of a bat by her teammate, which was apparent to her immediately prior to the incident. It cannot be said that the danger was concealed or unknown by the infant Plaintiff or that the Defendants were on notice that MOLLY would put herself in that danger.
Moreover, it is clear from the evidence proffered herein that the area where the incident took place, to wit , the designated batting warm-up area, was open and obvious. The undisputed testimony establishes that MOLLY was fully apprised of both the warm-up location and the safety procedures while her team was batting. Prior to the subject incident, MOLLY herself warmed up "away from the bench" before proceeding to bat. She was also aware that protocol dictated that, while a teammate was up at bat, the next person in the line-up would be warming up, which entailed swinging a bat. The designated warm-up area on the date of the incident was obviously and logically situated relative to the on-field activity during the softball game and was in continuous use by both herself and her other teammates. Based on the applicable case law, the resultant risks were readily appreciable, even if the designated batting warm-up area presented a less than optimal condition. Here, just as in Roberts , the designated batting warm-up area, the complained of hazard, was open and obvious to the infant Plaintiff and "as safe as [it] appeared to be" (See Roberts v. Boys and Girls Republic, Inc., 51 AD3d 246 at 249 [1st Dept. 2008] ). Thus, the infant Plaintiff consented to the perfectly obvious risks and the Defendant school performed its duty, warranting summary judgment in the Defendants' favor.
The arguments posed by Plaintiffs' counsel concerning the Defendants' purported failure to properly instruct the infant Plaintiff on the use of a helmets does not warrant a different result. Admittedly, the subject school provided softball team members with protective helmets, equipped with a grill to protect the face. However, counsel asserts that MOLLY "naively" removed her helmet after striking out at bat and that the subject incident would not have occurred if she was instructed not to remove her helmet until she reached the dugout.
This Court is not persuaded by the cases cited by Plaintiffs' counsel in support of this contention. Specifically, in Charles v. The Uniondale School District Board of Education , 91 AD3d 805 [2nd Dept. 2012], a student athlete was injured after being hit in the jaw by a lacrosse ball during practice. In that case, the defendant school district did not provide any protective equipment to the team and did not require student athletes to wear protective equipment during practice. As such, the Appellate Division, Second Department, found that an issue of fact existed as to whether the school district had unreasonably increased the risk of harm to the student athlete by not providing him with head and face protection during practice. Conversely, here, helmets were issued by the subject school at the time of the incident and team members were required to wear helmets while warming up, batting, and running the bases. Counsel fails to proffer any legal authority in support of the contention that the subject school should have required team members to wear protective gear off of the field, even when not engaged in activities associated with the sport. Further, the Plaintiffs failed to raise an issue of fact regarding whether wearing a helmet would have prevented MOLLY's injuries. Indeed, if a bystander or spectator, who assumes the risks of a sport, is not required to wear protective equipment, it cannot be said that participants should be required to wear protective gear at all times. To that end, courts have consistently weighed the public policy considerations associated with athletic and recreational activities, finding that, if a sport, with all of its many social benefits is to persist, vigorous and unstifled by its attendant and often considerable risks, there must be tolerated a disparity between the level of safety that might be optimally or even reasonably achieved and that which law mandates ( Benitez v. New York City Board of Education, 73 NY2d 650 [1989] ).
Once a Plaintiff has assumed a risk, recovery premised on injury attributable to the risk assumed is barred. Thus, under the circumstances herein, recovery may not be had on a theory of negligent supervision (See Napoli v. Mount Alvernia, Inc., 239 AD2d 325 [2d Dept. 1997] ; Roberts v. Boys and Girls Republic, Inc., 51 AD3d 246 [1st Dept. 2008] ). In any event, the facts conclusively demonstrate that even the most intense supervision could not have prevented the subject incident from occurring ( Convey v. City of Rye School Dist. , 271 AD2d 154, 160 [2d Dept. 2000] ; see also Siegell v. Herricks Union Free School Dist. , 7 AD3d 607 [2d Dept. 2004] ; Tanon v. Eppler , 5 AD3d 667, 668 [2d Dept. 2004] ).
Accordingly, it is hereby
ORDERED , that the Defendants' motion for summary judgment, pursuant to CPLR § 3212, is GRANTED and the Plaintiffs' action is DISMISSED .
This constitutes the decision and Order of the Court.