In School Injury Sports Related Accidents Assumption of Risk is Not Always a Bar to Recovery

Plaintiff, a high school student, was allegedly injured during a softball game when she slid into second base. The cause of the injury was the improperly positioned base that had a pointed side, rather than a flush side facing first base. As plaintiff slid into second base, her left foot hit the point of the base and she stopped abruptly. The base had been securely anchored into the ground by the school’s grounds crew.

The defendant high school moved for summary judgment dismissal which was denied by the Supreme Court. The Appellate Division, Second Department, affirmed the decision.

While the assumption of risk doctrine generally applies with regard to participation in school sports, it “does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased”. However, as to the construction of the playing surface, the risk must be “open and obvious” to the player.

In this school injury accidents case, the appellate court held that the defendants “failed to demonstrate that the base was properly positioned” and that the plaintiff was “aware of the allegedly improper positioning, or that it was an open and obvious condition”.

Viola v. Carmel Cent. School Dist., 2012 NY SlipOp 040021, 5/23/12

NOTE:

In contrast toViola v. Carmel Cent. School Dist., on June 5, 2012, the NYS Court of Appeals held that an injured college student who “was an experienced and knowledgeable baseball player” assumed the inherent risk of being hit in the chest by a line drive. Although the plaintiff was pitching in a practice cage for the first time, the Court held that “there was insufficient evidence from which a jury could have concluded that plaintiff faced an unassumed, concealed, or enhanced risk”.

Bukowski v. Clarkson University, NYLJ, 6/6/12, 22:1