Bukowski v. Clarkson University , 928 N.Y.2d 369 ( 2011 )

Rose, J.

Plaintiff commenced this action to recover damages for injuries he sustained while participating in baseball practice as a freshman pitcher for defendant Clarkson University’s Division III intercollegiate baseball team. Plaintiff was pitching from an artificial mound at regulation distance to a batter in an indoor training facility when the batter hit a line drive that struck plaintiff in the face. After joinder of issue and discovery, Supreme Court (Teresi, J.) denied defendants’ motion for summary judgment dismissing the complaint.

During his jury trial testimony, plaintiff acknowledged that he was an experienced baseball player who was aware of the risk of being struck by a batted ball while pitching. Plaintiff testified that he had been playing baseball and pitching in various leagues for many years and that balls had been batted directly back at him 50 to 100 times throughout the course of his experience as a pitcher. In addition, plaintiff testified that he had extensive experience playing on fields of all different types, under a variety of conditions, which included different backdrops, pitching mounds and lighting. Plaintiff further acknowledged that he was familiar with the indoor training facility where the team practices were held and had regularly attended the practices in the facility a month before the incident. Plaintiff confirmed that he had been informed by his coaches that they intended to hold “live” practice without the use of a protective screen, known as an L-screen, in the indoor facility at least two weeks prior to the accident. He also testified that, both on the day before his accident and just prior to his turn on the pitching mound, he had observed other pitchers practicing “live” in the netted-off “batting cage” area without the use of an L-screen. After the close of proof, Supreme Court (Devine, J.) granted defendants’ motion to dismiss on the ground that plaintiff had assumed the obvious risk of being hit by a line drive.

Plaintiff appeals,^* arguing, among other things, that factual issues exist as to whether the risk of being hit by a ball was unreasonably enhanced by the backdrop and lighting of the indoor facility and the failure to use an L-screen. We cannot agree. Given the undisputed evidence of plaintiffs experience and his awareness of the risk of being hit by a ball, Supreme Court properly concluded that he assumed that risk.

Organizers of sporting activities owe a duty to exercise reasonable care to protect participants “from injuries arising out of unassumed, concealed, or unreasonably increased risks” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 654 [1989]). Voluntary participants in sporting activities are deemed to have assumed commonly appreciated risks inherent in the activity such that any legally enforceable duty to reduce the risks of the activity is limited “ ‘to mak[ing] the conditions as safe as they appear to be’ ” (Morgan v State of New York, 90 NY2d 471, 484 [1997], quoting Turcotte v Fell, 68 NY2d 432, 439 [1986]). This primary assumption of the risk doctrine “extends to ‘risks engendered by less than optimal conditions, provided that those conditions are open and obvious and that the consequently arising risks are readily appreciable’ ” (Martin v State of New York, 64 AD3d 62, 64 [2009], Iv denied 13 NY3d 706 [2009], quoting Roberts v Boys & Girls Republic, Inc., 51 AD3d 246, 248 [2008], affd 10 NY3d 889 [2008]). Here, as plaintiff fully appreciated the risk of being hit by a line drive and he was able to readily observe the open and obvious conditions of the facility in which he was pitching, defendants fulfilled their duty by making the conditions as safe as they appeared to be (see Lincoln v Canastota Cent. School Dist., 53 AD3d 851, 852 [2008]; Harris v Cherry Val.-Springfield School Dist., 305 AD2d 964, 965 [2003]; Vecchione v Middle Country Cent. School Dist., 300 AD2d 471, 471 [2002]).

Whether plaintiff was pitching in an indoor or an outdoor facility, the risk of being hit by a ball is inherent in the sport of baseball and the conditions in which he was pitching were readily observable (see Lomonico v Massapequa Pub. Schools, 84 AD3d 1033, 1034 [2011]; Rodriguez v City of New York, 82 AD3d 563, 564 [2011]). Plaintiffs expert evidence, relied upon by the dissent, is that an L-screen or a darker backdrop could have lessened the risk, making the indoor conditions safer. Such evidence is, however, irrelevant given the fully comprehended and perfectly obvious nature of the inherent risk (see Martin v State of New York, 64 AD3d at 64; Musante v Oceanside Union Free School Dist., 63 AD3d 806, 807 [2009], Iv denied 13 NY3d 704 [2009]; Tilson v Russo, 30 AD3d 856, 858-859 [2006]).

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 [2000]; Baker v Briarcliff School Dist., 205 AD2d 652, 653-654 [1994]; Parisi v Harpursville Cent. School Dist., 160 AD2d 1079, 1080 [1990]), he presented no evidence that any such rule or standard required the use of a protective screen or a different backdrop here (see Martin v State 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 [2002]). 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 [2001]; Regan v State of New York, 237 AD2d 851, 853 [1997], Iv denied 91 NY2d 802 [1997]). The alleged lack of supervision did not increase the risks over and above the usual dangers inherent in the sport itself (see Fintzi v New Jersey YMHA-YWHA Camps, 97 NY2d 669, 670 [2001]; Palozzi v Priest, 280 AD2d 986, 987 [2001]).

Nor are we persuaded by plaintiffs reliance on the theory of inherent compulsion, which provides that assumption of the risk is not a shield from liability when the element of voluntariness is overcome by the compulsion of a superior (compare Benitez v New York City Bd. of Educ., 73 NY2d at 658, with Smith v J.H. West Elementary School, 52 AD3d 684, 685 [2008]). Plaintiff testified that he did not ask to use an L-screen because, a few weeks prior, he had inquired as to whether they were used and was told that they were no longer used during “live” practice. Wanting to “do it the Clarkson way,” he argues that he had no option but to participate without a protective screen. Accepting plaintiffs testimony as true and viewing it in a light most favorable to him, it underscores the fact that he was aware that he was pitching without an L-screen and yet it lends no support to his assertion that his participation in the practice was compelled or involuntary (see Musante v Oceanside Union Free School Dist., 63 AD3d at 807; Vecchione v Middle Country Cent. School Dist., 300 AD2d at 472; La Mountain v South Colonie Cent. School Dist., 170 AD2d 914, 915 [1991]).

Finally, contrary to plaintiffs contention, the denial of defendants’ motion for summary judgment did not serve as law of the case precluding the subsequent motion to dismiss after all of the evidence was presented (see S.L. Benfica Transp., Inc. v Rainbow Media, Inc., 13 AD3d 348, 349 [2004]; Wyoming County Bank v Ackerman, 286 AD2d 884 [2001]; Smith v Hooker Chem. & Plastics Corp., 125 AD2d 944 [1986]; Sackman-Gilliland Corp. v Senator Holding Corp., 43 AD2d 948, 949 [1974]; see also Cunningham v Vincent, 234 AD2d 648, 649 n [1996]). Thus, Supreme Court (Devine, J.) properly found that “there [was] no rational process by which the fact trier could base a finding in favor of [plaintiff]” (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see CPLR 4401).

Spain and Egan Jr., JJ., concur.

* Although plaintiff appeals from Supreme Court’s order, we treat the appeal as validly taken from the judgment (see CPLR 5520 [c]; Boylan v Dodge, 42 AD3d 632, 633 n [2007]; Matter of General Motors Corp. [Sheikh], 41 AD3d 993, 994 [2007]).