SCHOPPMAN v. Sewahnaka Union Free School District, etc., Appellant.

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Supreme Court, Appellate Division, Second Department, New York.

Elizabeth SCHOPPMAN, Plaintiff-Respondent, v. PLAINEDGE UNION FREE SCHOOL DISTRICT, et al., Defendants-Respondents, Sewahnaka Union Free School District, etc., Appellant.

Decided: August 19, 2002

CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY, and HOWARD MILLER, JJ. Fiedelman & McGaw, Jericho, N.Y. (Dawn C. DeSimone of counsel), for appellant. Christian Aaron Pickney, Hempstead, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendant Sewanhaka Central High School District, s/h/a Sewahnaka Union Free School District and Sewahanaka Central High School District appeals from so much of an order of the Supreme Court, Nassau County (Franco, J.), dated February 22, 2002, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint and cross claims are dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.

The plaintiff, a senior on Plainedge High School's varsity softball team, was injured during a game against Sewanhaka High School when she ran into a chain link fence in the outfield while chasing a fly ball.   In her action against the Sewanhaka Central High School District, s/h/a Sewahnaka Union Free School District and Sewahanaka Central High School District (hereinafter Sewanhaka), the plaintiff claims, among other things, that the fence on its ballfield, due to its construction and height, unreasonably increased the risks inherent in the game.

The Supreme Court erred in denying Sewanhaka's motion to dismiss the complaint and all cross claims insofar as asserted against it based on the doctrine of assumption of the risk.   The evidence established that the plaintiff was an experienced softball player, that the condition of the fence was open and obvious, and that the plaintiff appreciated the risks of playing with the fence in the outfield (see Morgan v. State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202;  Conway v. Deer Park Union Free School Dist. No. 7, 234 A.D.2d 332, 651 N.Y.S.2d 96;  Bailey v. Town of Oyster Bay, 227 A.D.2d 427, 642 N.Y.S.2d 903).   The evidence submitted by the plaintiff failed to raise a triable issue of fact as to whether the fence unreasonably increased the risks inherent in the game (see Morgan v. State of New York, supra;  Conway v. Deer Park Union Free School Dist. No. 7, supra).

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