Opinion
726 CA 21-01752
11-18-2022
Matthew S. GRACE, Plaintiff-Respondent, v. CAYUGA YOUTH ATHLETIC ASSOCIATION, INC., Defendant-Appellant.
GOLDBERG SEGALLA LLP, BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT-APPELLANT. LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
GOLDBERG SEGALLA LLP, BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT-APPELLANT.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he was hit with a baseball bat at a youth baseball game. Plaintiff was struck in the face by a bat swung by a teammate, in an off-field area behind the dugout, near spectators, and outside the areas designated for practice swings, i.e., home plate on the field or the caged on-deck area. Defendant moved for summary judgment dismissing the complaint on the ground, inter alia, that plaintiff assumed the risks associated with playing baseball. Supreme Court denied the motion, and we affirm.
The doctrine of assumption of the risk acts as a complete bar to recovery where a plaintiff is injured in the course of a sporting or recreational activity through a risk inherent in that activity (see Turcotte v. Fell , 68 N.Y.2d 432, 438-439, 510 N.Y.S.2d 49, 502 N.E.2d 964 [1986] ). "As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation" ( id. at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964 ). Thus, "primary assumption of the risk applies when a consenting participant in a qualified activity ‘is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks’ " ( Custodi v. Town of Amherst , 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 [2012] ). "Whether a plaintiff should be deemed to have made an informed estimate of the risks involved in an activity before deciding to participate depends upon the openness and obviousness of the risk, the plaintiff's background, skill and experience, the plaintiff's own conduct under the circumstances, and the nature of the defendant's conduct" ( Butchello v. Herberger , 145 A.D.3d 1586, 1587, 43 N.Y.S.3d 649 [4th Dept. 2016] ; see Morgan v. State of New York , 90 N.Y.2d 471, 485-486, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ; Lamey v. Foley , 188 A.D.2d 157, 164, 594 N.Y.S.2d 490 [4th Dept. 1993] ). "It is not necessary to the application of assumption of [the] risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results" ( Maddox v. City of New York , 66 N.Y.2d 270, 278, 496 N.Y.S.2d 726, 487 N.E.2d 553 [1985] ). "The doctrine of primary assumption of the risk, however, will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased" ( Ribaudo v. La Salle Inst. , 45 A.D.3d 556, 557, 846 N.Y.S.2d 209 [2d Dept. 2007], lv denied 10 N.Y.3d 717, 862 N.Y.S.2d 469, 892 N.E.2d 863 [2008] ; see Morgan , 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202 ). Moreover, inasmuch as "the assumption of risk to be implied from participation in a sport with awareness of the risk is generally a question of fact for a jury ..., dismissal of a complaint as a matter of law is warranted [only] when on the evidentiary materials before the court no fact issue remains for decision by the trier of fact" ( Maddox , 66 N.Y.2d at 279, 496 N.Y.S.2d 726, 487 N.E.2d 553 ; see McKenney v. Dominick , 190 A.D.2d 1021, 1021, 593 N.Y.S.2d 644 [4th Dept. 1993] ).
" ‘[T]he danger associated with people swinging bats on the sidelines while warming up for the game’ is inherent in the game of baseball and, accordingly, a risk assumed, even by child participants" ( Roberts v. Boys & Girls Republic, Inc. , 51 A.D.3d 246, 248, 850 N.Y.S.2d 38 [1st Dept. 2008], affd 10 N.Y.3d 889, 861 N.Y.S.2d 603, 891 N.E.2d 719 [2008] ). Here, however, defendant's own submissions raise a triable issue of fact whether the injury-causing event was a known, apparent or reasonably foreseeable consequence of plaintiff's participation because the incident occurred off the fenced field of play behind a dugout, near spectators, outside the areas designated for practice swings, such as the caged on-deck area, and in a location where players had never previously been observed taking practice swings (cf. Roberts , 10 N.Y.3d at 889, 861 N.Y.S.2d 603, 891 N.E.2d 719 ; 51 A.D.3d at 248-249, 850 N.Y.S.2d 38 ). Indeed, in contrast to Roberts , in which the evidence established as a matter of law that the plaintiff assumed the risk of being struck by a swinging bat in the area where the accident occurred, defendant's submissions here raise a triable issue of fact whether the teammate was "left to take practice swings precipitately in [a] place[ ] where such activity had no prior obvious presence" ( Roberts , 51 A.D.3d at 249-250, 850 N.Y.S.2d 38 ).
Defendant further contends that, regardless of assumption of risk, plaintiff's claim of negligent supervision must be rejected as a matter of law. We conclude, however, that defendant's own submissions raise "an issue of fact whether inadequate supervision was responsible for the accident or ... [whether] better supervision could have prevented it" ( Hochreiter v. Diocese of Buffalo , 309 A.D.2d 1216, 1218, 764 N.Y.S.2d 753 [4th Dept. 2003] [internal quotation marks omitted]; see Sheehan v. Hicksville Union Free School Dist. , 229 A.D.2d 1026, 1026, 645 N.Y.S.2d 181 [4th Dept. 1996] ). We therefore conclude that the court properly denied the motion for summary judgment dismissing the complaint.