Joann Viola, etc., respondent, v. Carmel Central School District, et al., appellants.

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

Joann Viola, etc., respondent, v. Carmel Central School District, et al., appellants.

2011–08521 (Index No. 1507/09)

Decided: May 23, 2012

PETER B. SKELOS, J.P. THOMAS A. DICKERSON RANDALL T. ENG LEONARD B. AUSTIN, JJ. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for appellants. Pirrotti Law Firm, LLC, Scarsdale, N.Y. (Anthony Pirrotti, Jr., of counsel), for respondent. Ashley Viola (hereinafter Ashley), a tenth grader on the girls' junior varsity softball team for the defendant Carmel High School (hereinafter the high school), allegedly sustained personal injuries when she slid into second base during a game held on a field behind the high school.   The stationary base was anchored into the ground.   The base had been installed by the grounds crew of the defendant Carmel Central School District (hereinafter the school district).

Argued—April 16, 2012

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Putnam County (Lubell, J.), dated August 3, 2011, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

Ashley's mother, suing individually and on Ashley's behalf, commenced this action against the high school and the school district to recover damages for, inter alia, Ashley's personal injuries.   The plaintiff alleged that the defendants were negligent in their installation of the second base, i.e., it was improperly positioned in that one of its points, rather than a flush side, faced first base.   Ashley allegedly was injured when her left foot hit the point of the base and stopped abruptly.

The defendants moved for summary judgment, and the Supreme Court denied the motion.   The defendants appeal.   We affirm.

“The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity ‘consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation’ ” (Alqurashi v. Party of Four, Inc., 89 AD3d 1047, 1047, quoting Morgan v. State of New York, 90 N.Y.2d 471, 484).   The doctrine does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased (see Benitez v New York City Bd. of Educ., 73 N.Y.2d 650, 654;  Alqurashi v. Party of Four, Inc., 89 AD3d at 1047–1048;  Demelio v. Playmakers, Inc., 63 AD3d 777, 778;  Ross v New York Quarterly Mtg. of Religious Socy. of Friends, 32 AD3d 251, 252).   The assumption of risk doctrine “encompasses risks associated with the construction of the playing surface” (Morlock v. Town of N. Hempstead, 12 AD3d 652, 652), “ ‘and any open and obvious condition on it’ ” (Casey v Garden City Park–New Hyde Park School Dist., 40 AD3d 901, 902, quoting Welch v Board of Educ. of City of N.Y., 272 A.D.2d 469, 469).

The defendants failed to establish, prima facie, that Ashley assumed the risk of her injury.   Although generally, a softball or baseball player assumes the risk of injury from sliding into a base (see Martinelli v. Town of E. Fishkill, 300 A.D.2d 551, 551;  Totino v Nassau County Council of Boy Scouts of Am., 213 A.D.2d 710, 711;  Castello v. County of Nassau, 223 A.D.2d 571, 572;  Gonzalez v. City of New York, 203 A.D.2d 421, 421–422;  Strauss v. Town of Oyster Bay, 201 A.D.2d 553, 554), here, the defendants failed to demonstrate that the base was properly positioned, that Ashley was aware of the allegedly improper positioning, or that it was an open and obvious condition.   Moreover, the defendants failed to establish that the allegedly improperly positioned base did not unreasonably increase the risk of injury as, among other things, the defendants' employees testified that an improperly positioned base would be a hazard for sliding runners and that a game should be stopped to correct such a condition.

In view of the defendants' failure to sustain their prima facie burden, the sufficiency of the plaintiff's opposing papers need not be considered (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320).

SKELOS, J.P., DICKERSON, ENG and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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