Pitcher, Hit By Line Drive, Assumed Risk of Injury

Bukowski v. Clarkson Univ., No. 510051 (3d Dept. July 14, 2011):  Plaintiff, a college baseball pitcher, sued his school (Clarkson University) to recover damages for injuries sustained after he was hit in the face by a line drive during batting practice.  After a jury trial, the trial court dismissed his complaint on the ground that plaintiff “assumed the obvious risk of being hit by a line drive”.  The Appellate Division affirmed.

On appeal, plaintiff argued that factual issues existed 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 a protective screen.  The court disagreed, citing undisputed evidence of plaintiff’s experience and his awareness of the risk of being hit.

The court summarized the application of the assumption of risk doctrine in the context of voluntary sports activities:

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. … 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. … 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.

Applying this rule, the court held:  “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. … 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.”  The court discounted plaintiff’s expert evidence – “that an L-screen or a darker backdrop could have lessened the risk, making the indoor conditions safer” – as “irrelevant given the fully comprehended and perfectly obvious nature of the inherent risk”.

Moreover, cases cited by plaintiff addressing when the risk of an activity is “unduly enhanced” were inapposite, given the lack of any “evidence that any such rule or standard required the use of a protective screen or a different backdrop here”.

The court rejected plaintiff’s “negligent supervision” claim, reasoning that plaintiff was “plainly aware of the conditions and consented to the risk that they presented” and that the “alleged lack of supervision did not increase the risks over and above the usual dangers inherent in the sport itself”.

Finally, it rejected plaintiff’s reliance on an “inherent compulsion” theory, under which “assumption of the risk is not a shield from liability when the element of voluntariness is overcome by the compulsion of a superior.”  Although plaintiff testified that he did not ask to use a protective screen because he had been told that the school no longer used them during “live” practice, there was no indication that his participation was compelled or involuntary.

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