The act of turning her back to the activity is hardly a mitigative factor here. In a suit against participants in a game, a spectator generally will be held to have assumed the risks inherent in the game, including the specific risk of being struck ( Kreil v. County of Niagara, 8 AD3d 1001; Sutfin v. Scheuer, 145 AD2d 946, 947 affd 74 NY2d 697, supra; see Honohan v. Turrone, 297 AD2d 705; Cuesta v. Immaculate Conception R.C. Church, 168 AD2d 411). At her deposition, claimant testified that during the approximately two hours she was at the park, she observed people sledding down the hill and some came as far as the sidewalk upon which she was standing.
FN25. SeeVega v. City of Pompano Beach, 551 So.2d 594, 596–97 (Fla.App.1989) (affirming the trial court's exclusion of a civil engineer's expert testimony as to the existence of a hazardous condition because it would have been within the common knowledge of the jury). FN26. SeeHonohan v. Turrone, 297 A.D.2d 705, 706, 747 N.Y.S.2d 543 (2002) (upholding summary judgment when presented with an expert's “conclusory affidavit” stating that it was not within the “custom and practice to be followed regarding youth soccer leagues” to allow players to warm up on the sidelines near spectators because the expert “did not cite any recognized standard adopted by any specific organization or governmental entity nor specify where the purported ‘custom and practice’ was in fact observed”). We have previously determined that expert witness testimony is admissible in the context of determining negligence or other breaches of a particular duty of care.
Although plaintiff has cited cases in which a breach of binding rules or governing standards requiring certain safety measures was held to have raised an issue of whether the risk of injury normally associated with the sport was unduly enhanced ( see Zmitrowitz v Roman Catholic Diocese of Syracuse, 274 AD2d 613, 614; Baker v Briarcliff School Dist., 205 AD2d 652, 653-654; Parisi v Harpursville Cent. School Dist., 160 AD2d 1079, 1080), he presented no evidence that any such rule or standard required the use of a protective screen or a different backdrop here ( see Martin vState of New York, 64 AD3d at 66; Musante v Oceanside Union Free School Dist., 63 AD3d at 808; Honohan v Turrone, 297 AD2d 705, 706). The conclusion that plaintiff was plainly aware of the conditions and consented to the risk that they presented also precludes his claim for negligent supervision ( see Morgan v State of New York, 90 NY2d at 487; Duffy v Suffolk County High School Hockey League, 289 AD2d 368, 369; Regan v State of New York, 237 AD2d 851, 853, lv denied 91 NY2d 802).
erson] have foreseen the exact manner in which his or her injury occurred" ( Maddox v City of New York, 66 NY2d 270, 278; see Tremblay v West Experience, 296 AD2d 780, 781; see also Lincoln v Canastota Cent. School Dist., 53 AD3d 851, 852; Hyland v State of New York, 300 AD2d at 795; Giordano v Shanty Hollow Corp., 209 AD2d 760, 760-761, lv denied 85 NY2d 802; Nagawiecki v State of New York, 150 AD2d at 149-150). Finally, the affidavit of claimants' expert was insufficient to raise a triable issue of fact inasmuch as the expert opined only that skirting was a widely recognized, prevalent safety feature and that it was becoming "increasingly uncommon" to see rails without skirting at the time of the accident; claimants presented no evidence that the industry or any regulating body had adopted any standards regarding the use of skirting on rails or that ski parks normally adhered to the practice of placing skirting on all rails, including low difficulty rails such as that at issue ( see Honohan v Turrone, 297 AD2d 705, 706; Papa v Russo, 279 AD2d 744, 746, lv denied 99 NY2d 507). In short, inasmuch as defendants established prima facie that the rail was as safe as it appeared to be and claimants failed to create a question of fact in that regard, the Court of Claims properly granted defendants' motion for summary judgment dismissing the claim.
A review of cases throughout the United States reveals only two cases dealing with spectator injuries at soccer matches. Sutton v. E. New York Youth Soccer Ass'n, 8 A.D.3d 855, 779 N.Y.S.2d 149 (2004); Honohan v. Turrone, 297 A.D.2d 705, 747 N.Y.S.2d 543 (2002). Each of these cases was decided upon a motion for summary judgment and not upon a motion to dismiss.
Moreover, the plaintiffs' investigator and expert witness did not examine the baseball field and the bases located on the field until after the little league's permit had expired and it was no longer using the field. Therefore, there was no foundation for the expert's opinion ( see Ciccone v Bedford Cent. School Dist., 21 AD3d 437; Barbato v Hollow Hills Country Club, 14 AD3d 522; Honohan v Turrone, 297 AD2d 705). Accordingly, the court should have granted the little league's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it and that branch of the municipal defendants' cross motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
The defendants submitted evidence sufficient to establish that the infant plaintiff assumed the apparent risk of falling when he voluntarily engaged in the subject maneuver ( see Koubek v Denis, 21 AD3d 453; Liccione v Gearing, 252 AD2d 956; cf. Hopkins v City of New York, 248 AD2d 441). In opposition, the plaintiffs failed to submit evidence sufficient to raise a triable issue of fact ( see Trummer v Niewisch, 17 AD3d 349; Honohan v Turrone, 297 AD2d 705).
The plaintiff allegedly sustained injuries when, while three to five rows back from the field in the Shea Stadium stands, he was struck by a baseball that had been tossed casually to fans as a souvenir by the defendant Dennis Cook, a Mets pitcher, after he completed his pre-game warmup routine. The defendants are not insurers of the safety of spectators who occupy unprotected areas of the stadium ( see generally Akins v. Glens Falls City School Dist., 53 NY2d 325). Since it is not unusual for a player to toss a ball into the stands, the plaintiff assumed the risk of his injuries ( see Sparks v. Sterling Doubleday Enters., 300 AD2d 467; Honohan v. Turrone, 297 AD2d 705; see also Dalton v. Jones, 260 Ga App 791). Therefore, the Supreme Court correctly determined that the defendants established their entitlement to judgment as a matter of law based upon the doctrine of assumption of the risk ( see Morgan v. State of New York, 90 NY2d 471; Honohan v. Turrone, supra).
Ordered that the order is affirmed, with costs. Contrary to the plaintiff's contention, the defendants established their entitlement to judgment as a matter of law based upon the doctrine of assumption of the risk ordinarily associated with being a spectator at a sporting event ( see Akins v. Glens Falls City School Dist., 53 NY2d 325; Koenig v. Town of Huntington, 10 AD3d 632, 633; Suarez v. HBQVB Athletic Assn., 303 AD2d 396, 397; Honohan v. Turrone, 297 AD2d 705, 706; Lynch v. Board of Educ. for Oceanside School Dist., 225 AD2d 741, 741-742; Clark v. Goshen Sunday Morning Softball League, 122 AD2d 769, 770). In opposition, the plaintiff failed to present competent evidence that the defendants did not provide adequate supervision or that the defendants unreasonably increased the inherent risks of injury from the game of baseball ( see id.; cf. Muniz v. Warwick School Dist., 293 AD2d 724).
On April 14, 2000, the plaintiff Susan Koenig was watching her son's T-ball game at Field 61 located in Otsego Park in the Town of Huntington. At the same time a baseball game was being played at an adjacent field, Field 39. During the course of watching her son on Field 61, a foul ball from Field 39 struck Koenig in the left eye. Contrary to the plaintiffs' contention, the defendant established its entitlement to judgment as a matter of law based upon the doctrine of assumption of risk ( see Morgan v. State of New York, 90 NY2d 471; Honohan v. Turrone, 297 AD2d 705). That doctrine is applicable where a plaintiff has placed himself or herself in close proximity to a ball field, particularly where the record shows that the plaintiff had viable alternatives to her own location ( see Starke v. Town of Smithtown, 155 AD2d 526). The conclusory affidavit of the plaintiffs' expert that the design of Field 39 was negligent was insufficient to raise a triable issue of fact as to whether the defendant unreasonably increased the inherent risks of injury to a spectator at a ball field complex with more than one field upon which children were simultaneously practicing or playing baseball ( see Honohan v. Turrone, supra; Starke v. Town of Smithtown, supra).