Opinion
November 16, 1990
Appeal from the Supreme Court, Monroe County, Willis, J.
Present — Dillon, P.J., Boomer, Pine, Lawton and Lowery, JJ.
Order reversed on the law without costs, motion and cross motion granted. Memorandum: Plaintiff, a 17-year-old student at defendant school district, was participating in a baseball game when he was struck in the face and mouth by a baseball bat thrown by defendant Nesmith, a fellow student, after hitting the ball. The game occurred during a gym class voluntarily joined by plaintiff during his lunch break. The court erred in denying defendant Nesmith's motion and defendant school district's cross motion for summary judgment dismissing plaintiff's complaint. Plaintiff assumed the risk that a bat might be thrown accidentally and there is no allegation that Nesmith's conduct was intentional or reckless (see, O'Bryan v. O'Connor, 59 A.D.2d 219; see, e.g., Sutfin v. Scheuer, 145 A.D.2d 946, affd. 74 N.Y.2d 697; O'Neill v. Daniels, 135 A.D.2d 1076, lv. denied 71 N.Y.2d 802; see generally, Turcotte v. Fell, 68 N.Y.2d 432, 439). The school district breached no duty to protect plaintiff from "unassumed, concealed or unreasonably increased risks" (Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 658).
All concur, except Dillon, P.J., and Lawton, J., who dissent and vote to affirm, in the following memorandum.
We must dissent. The majority concludes, as a matter of law, that plaintiff assumed the risk of being struck by a bat thrown at least 35 feet by defendant Nesmith. A participant in a sporting activity assumes only risks that are known, apparent or reasonably foreseeable (see, O'Neill v. Daniels, 135 A.D.2d 1076, 1077). Further, whether a risk is assumed is generally a factual question to be determined based on plaintiff's skill, experience and awareness of the risk (see, Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657; Jackson v. Livingston Country Club, 55 A.D.2d 1045; Dillard v. Little League Baseball, 55 A.D.2d 477, 480, lv. denied 42 N.Y.2d 801). Here, plaintiff admitted that he knew that bats are occasionally thrown during baseball games, but stated that he had never seen a bat "travel in the air anywhere near the distance" thrown by defendant. Further, defendant has failed to produce any evidence that throwing a bat that distance was a known and reasonably foreseeable risk inherent in the game. Since a question exists whether the risk was apparent or reasonably foreseeable, summary judgment must be denied.
Further even if we were to find that plaintiff assumed the risk, summary judgment is still not warranted. Defendant Nesmith does not assert that the bat slipped from his grasp, but rather admitted he "let the bat go". Because of Nesmith's improper conduct the bat traveled in the air at least 35 feet. The record establishes that Nesmith had a history of bat throwing and because of this behavior was referred to by the other players as the "Dave Winfield" of Roth High School. Further, plaintiff stated that when he previously observed Nesmith batting, Nesmith upon hitting the ball would release the bat, causing it to fly in a trajectory parallel to the ground. Plaintiff in his complaint alleged in part that Nesmith threw the bat and that his conduct was in deviation of the rules of the game.
In reviewing a summary judgment motion, we must accept as true the evidence presented by the nonmoving party and the motion must be denied if there is even arguably any doubt as to the existence of a triable issue (see, Hourigan v. McGarry, 106 A.D.2d 845). Here, given Nesmith's history of bat throwing in clear contravention of the rules of baseball and his admission that he "let the bat go", a triable issue exists whether his conduct was reckless or wanton, which precludes summary judgment (see, Turcotte v. Fell, 68 N.Y.2d 432, 439).
Finally, since the employees of defendant school district allegedly knew of Nesmith's history of bat throwing and there is no showing that they adequately enforced safety rules to prevent such conduct or instructed Nesmith as to proper conduct, the issue of whether their actions were reasonable or constituted a breach of their duty of care may not be resolved summarily (see, Merkley v. Palmyra-Macedon Cent. School Dist., 130 A.D.2d 937).