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"Assumption of Risk and Baseball: When Players Get Thrown A Curveball" by Nicholas A. Battaglia

Assumption of Risk and Baseball: When Players Get Thrown a Curveball

by Nicholas A. Battaglia

There are two things inseparable from the summertime: baseball and injuries from baseball. But when a player is injured on the diamond, is anyone liable? This short article will discuss the relevant law, chiefly the assumption of risk doctrine, and walk through how it applies to a full range of athletes, from professional athletes to Little Leaguers.

Many of the injuries in baseball are, in fact, inherent--if not unique--to the game. Baseball-specific injuries include tripping on the infield-outfield lip of grass while trying to catch a popup (Mondelli v. County of Nassau, 49 A.D.3d 826 (2d Dept. 2008)), slipping in a wet and muddy outfield while tracking down a fly ball (Maddox v. City of New York, 66 N.Y.2d 270 (1985)), being struck with a line-drive during "live" indoor batting practice (Bukowski v. Clarkson University, 2011 WL 2713712 (3d Dept. 2011)), and being hit with a thrown baseball (Godwin v. Russi, 62 A.D.3d 945 (2d Dept. 2009)). In each of these four cases, like many similar cases, the defendants were protected by the aegis of the assumption of risk doctrine.

This defense is commonly invoked in connection with the voluntary participation in sports and other recreational activities. It provides that the injured participant, "[b]y engaging in a sport 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." Rivera v. Glen Oaks Village Owners, Inc., 41 A.D.3d 817, 820 (2d Dept. 2007). Therefore, the overall purpose of the assumption of risk doctrine is "intended to facilitate free and vigorous participation in athletic activates." Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657 (1989).
There are two seminal cases which serve as the backbone for this doctrine.

The great New York State Court of Appeals Chief Judge Benjamin N. Cardozo authored the first of these assumption of risk cases in 1929. In Murphy v. Steeplechase Amusement Co., Inc., 250 N.Y. 479 (1929), a young man went onto the infamous "Flopper" ride, and fell after a sudden "jerk" by the ride, injuring his knee. He sued the owners under a theory of negligence for want of safety measures and unsafe operation of the amusement park ride. However, Chief Judge Cardozo was not amused. He noted that the whole purpose of the ride was to fall or "flop" on the ride, and famously remarked "[o]ne who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball." Murphy, 250 N.Y. at 482 (arising out of the Latin phrase "violent non fit injuria"). Further, Cardozo noted that the situation would be different if "the dangers inherent in the sport were obscure or unobserved." Id., at 483 (internal citations omitted).

The second case recounts the tragic horse-racing story of Ronald Turcotte. In Turcotte v. Fell, 68 N.Y.2d 432 (1986), jockey Fell's "foul riding" resulted in jockey Turcotte clipping the horse in front of them, causing his horse to trip, fall, and throw him into the ground, ultimately rendering him paraplegic. Turcotte argued that Fell's "foul riding" was sufficient to defeat the assumption of risk defense. However, the New York State Court of Appeals reasoned that "foul riding" was a part of the race of which Turcotte, an experienced rider, was well aware. The court remarked that "[i]f a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he is injured as a result of those risks." Turcotte, 68 N.Y.2d at 437. This includes "injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation." Id. at 439.

Both Murphy and Turcotte expansively shield defendants in typical baseball-related injury cases. The doctrine is broad and covers dangers that are "commonly-appreciated" and "obvious and necessary" for participation in baseball, but also to those injuries which are "reasonably foreseeable." Each of the four opening cases presented cover a wide variety of baseball injuries which all fit cleanly within the assumption of risk doctrine. Yet how do courts handle questions about the varieties of baseball injuries that fall outside of this doctrine?

To begin with, there are baseball injuries that are not obvious and necessary or reasonably foreseeable. Distinguished from Maddox, where the major league baseball player knew the field was wet and muddy, in Gallagher v. County of Nassau, 74 A.D.3d 877 (2d Dept. 2010), a town softball player attempted to make a diving catch when his hand struck a small cement object permanently installed in fair territory in the outfield. The cement object was "difficult to see more than a few feet away," and the player had not encountered it before. Id. Here, the court recognized that players "do not consent to the risks which are concealed, unassumed, or unreasonably increased." Id. (internal citations omitted). This is consistent with Judge Cardozo's remarks in Murphy, that a participant would not assume the risk of "obscure or unobserved" dangers. Therefore, the defendants' summary judgment dismissing the complaint was denied.

Also apparent is the notion of experience. The Turcotte court expressly distinguished that "a professional athlete is more aware of the dangers of the activity, and presumable more willing to accept them in exchange for a salary, than is an amateur." 68 N.Y.2d at 440. This distinction is apparent in Maddox (professional athlete) and Gallagher (a local amateur softball league player). But this distinction is not always so clear.

The judges in Bukowski were divided as to the actual experience level of a freshman college pitcher; arguably it ranks in between that of a professional baseball player and amateur softball player. The majority found that the plaintiff had pitched for many years, had "extensive experience" pitching on different field types including indoors, and had fielded many batted-balls back at him. Bukowski, 2011 WL 2713712 at *1. However, the dissent noted that the plaintiff was throwing "live" batting practice for the first time at the college level, for the first time ever without an "L screen," and under conditions (lighting, coloration, net contrast) which experts found to be "pretty dangerous." Further, the dissent points to Benitez, which held that "[e]ducational institutions are required to exercise 'ordinary reasonably care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks.'" Id. at 3. Benitez provides plaintiffs a slight chilling effect on the assumption of risk doctrine when the injury occurs in an educational setting. However, as demonstrated in Bukowski, it does not always work.

Moreover, age adds an additional layer to evaluating the player's experience . . . Most often when the assumption of risk defense fails to shield defendants the player is a minor. Take, for example, the recent case Hyde v. North Collins Central School District, 83 A.D.3d 1557 (4th Dept. 2011), where a minor softball player sustained injuries sliding into second base during her high school game. The court found the assumption of risk doctrine was insufficient to protect the defendants here, because there was a question of whether, based on her experience and subsequently her age, the plaintiff "was aware of and appreciated the risks of sliding." Id. at 1558.

Two almost identical cases exhibit this added layer of age in the experience analysis. In both cases, a softball catcher was not wearing any protective gear and was struck in the face with a bat. The court in the case where the injured player was 9 years old found that the assumption of risk doctrine did not extend to protect the defendant coaches for not instructing, warning, or appropriately supervising the child. Merino ex rel. Encarnacion v. Board of Educ. of City of New York, 59 A.D.3d 248 (1st Dept. 2009). However, based on the same facts, injury, and allegations, a catcher of majority age was found to have assumed these risks and the defendants were protected by the assumption of risk doctrine. Chaikin v. Long Island City YMCA, 29 A.D.3d 619, 620 (2d Dept. 2006).

While the assumption of risk doctrine may seem to be a large burden for plaintiffs to overcome--and, granted, it can be--the doctrine fulfills the intended policy to promote "vigorous participation" in sports like baseball. Benitez, 73 N.Y.2d at 657. In the cases noted above, when the court denies the defendants from using the assumption of risk doctrine in a summary judgment motion to dismiss, that does not mean that the doctrine could still not be used in the future, but merely that it is currently insufficient. Generally, the plaintiff actually assumed a risk by participating in a sport is a question for the jury. Weller v. Colleges of the Senecas, 217 A.D.2d 280 (4th Dept. 1995).

When the plaintiff does overcome this burden by successfully fending off the defendant's summary judgment motion to dismiss the complaint, he or she is in a considerably more favorable position. At this point, cases typically--as most cases did here--will quietly settle and avoid contributing to the litany, and further development, of the doctrine. But as players continue to arm themselves with new and more advanced bats, better and more innovative training facilities, and even medical progressions improving supplements, professionals and amateurs alike will continue to sustain injuries, and the assumption of risk doctrine debate will continue.

Nicholas A. Battaglia is entering his third year at Albany Law School where he will serve as Executive Editor for Lead Articles on Albany Law Review. Nicholas is particularly interested in health law, tort law, and constitutional law. Additionally, his non-legal interests include baseball, fishing, and medical sciences.

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This page contains a single entry from the blog posted on August 16, 2011 12:47 AM.

The previous post in this blog was "Kendra's Law: Even With Unanimous Legislative Support, and the New York Court of Appeals' Blessing, Continued Research Is Necessary To Ensure Positive Patient Outcomes" by Alexander J. Nicas .

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