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College Baseball Player Found To Assume The Risk Of Being Struck By A Batted Ball

January 25, 2013 • Posted By Joseph A. French • Trial Practice

Despite the large number of decisions which have already addressed it, the doctrine of Assumption of Risk continues to draw judicial scrutiny.  Undoubtedly, there are numerous instances where diligent plaintiff’s counsel believe the doctrine does not and can not apply to their client’s claim.

Last year, the Court of Appeals considered the claim of a collegiate baseball pitcher attending Clarkson University.  Bukowski v. Clarkson University, 19 NY3d 353 (2012).  As Chief Judge Lippman noted at the beginning of his unanimous opinion, “Almost every day, we are reminded of the injury risks attendant to participation in organized sports.”

The Court of Appeals affirmed the order of the Appellate Division, Third Department which had decided plaintiff assumed the risk of being hit by a line drive while he pitched in a “live” practice.

Plaintiff had played organized baseball since he was five years old.  In high school, he pitched at the varsity level for three years.  Clarkson University recruited him as a pitcher.  At the beginning of the spring season practice, plaintiff and his teammates were practicing indoors.  He was instructed to participate in a live practice where he and the batter were to practice in a live practice, i.e., it was not merely batting practice.  He threw from a mound at regulation distance, but he was not protected by an L-screen.  On his seventh toss, the batter swung and hit a line drive which struck plaintiff in the jaw.  The motion court denied defendant’s motion for summary judgment.  At trial, however, the trial court granted defendant’s motion for a directed verdict explaining that in baseball “plaintiff assumed the commonly appreciated risk in baseball of being hit by a line drive.”  In a split decision, the Third Department panel affirmed the directed verdict order.

The Court of Appeals noted that, “The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks (Morgan v. State of New York, 90 NY2d 471, 484 [1997]).  An educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks (see Benitez v. New York City Bd. of Educ., 73 NY2d 650, 658 [1989]).  If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty (Turcotte v. Fell, 68 NY2d 432, 439 [1986]).  Relatively, risks which are commonly encountered or “inherent” in a sport, such as being struck by a ball or bat in baseball, are “risks [for] which various participants are legally deemed to have accepted personal responsibility” (Morgan, 90 NY2d at 484).  The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions”.  Plaintiff testified that he was an experienced baseball player and pitcher, familiar with the game, its rules and its risks.  He was also aware of all the conditions prevalent that day.  Thus, the defendants had “fulfilled their duty of making the ‘conditions as safe as they appear to be’, and there were no concealed risks unknown to plaintiff”.  Moreover, no safety protocols or NCAA rules were shown to have been violated during the practice.

The doctrine of assumption of risk “facilitate[es] free and vigorous participation in athletic activities” (Trupia, 14 N.Y.3d at 395, quoting Benitez v. New York City Bd. of Educ., 73 NY2d 650, 657 [1989]) and shields college athletics from potentially crushing liability.  the Court reasoned that Clarkson University, a college located in upstate New York, should be able to allow its sports teams to practice indoors during the cold winter months without fear of liability for inability to replicate the ideal conditions of the outdoor spring season.  Plaintiff’s injuries are simply the result of a “luckless accident arising from . . . vigorous voluntary participation in competitive . . . athletics” (Benitez, 73 NY2d at 659). 

Considering the facts in the light most favorable to the plaintiff, there was insufficient evidence from which a jury could have concluded that plaintiff faced an unassumed, concealed, or enhanced risk, even though it was his first time pitching live in the cage.

Given the circumstances, we believe that the opinion is correct.  In considering whether to invoke the assumption of risk defense, it is important to analyze the participant’s familiarity with the activity, its inherent risks, and whether plaintiff confronted “unassumed, concealed or enhanced” risks.  If none, the case for a dismissal of a plaintiff’s claim on the basis of assumption of risk will be made stronger and more compelling.