In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2017/05/Legac-v-South-Glens-Falls-Cent.-Sch.-Dist.pdf">Legac v South Glens Falls Cent. Sch. Dist</a></em>, the Third Department recently held that the assumption of risk doctrine can apply even in atypical sporting situations.
In March of 2015, 5 year-old Mathew Legac was struck in the face by a baseball while fielding ground balls during try-outs for his school’s junior varsity baseball team. Because of rain, the JV coach, defendant Edward Potter, held the multi-day tryouts in the high school’s gymnasium. Legac argued that because the tryouts were held indoors, as opposed to a normal baseball field, the school created an unusual and unsafe condition for students to play the sport. Defendants moved for summary judgment on the basis that Legac assumed the risk of being struck by a baseball during tryouts. The trial court found that plaintiffs raised a triable issue of fact, and denied summary judgment. Defendants appealed.
On appeal, the Third Department began by explaining the common law doctrine of the assumption of the risk. In New York, when a participant engages in a sport or recreational activity and is aware of the risks, he or she consents to the “commonly appreciated risks” that are inherent in the activity. By extension, the participant “negates any duty on the part of the defendant to safeguard him or her from th[ose] risk[s].” As baseball is a common activity with inherent risks, the Court's focus was solely on whether Legac was sufficiently aware of those risks such that the doctrine would apply. While awareness of the risk is assessed on a case-by-case basis, taking the skill and experience of the participant into account, the Court explained that where the “risks of the activity are fully comprehended or perfectly obvious,” the consenting participant will be deemed to have assumed that risk.
Legac testified that he began playing baseball approximately ten years prior, had fielded multiple ground balls during that time, and was aware that baseballs commonly make unexpected hops on the ground. Overall, it was uncontested that Legac was far from a rookie, despite his age. Accordingly, the Court focused on whether the conditions of the gymnasium, which differed from traditional baseball fields, changed conditions such that Legac’s experience did not help him appreciate the particular risks at issue. Legac argued that a smooth gymnasium floor allowed ground balls to maintain greater speeds than would be possible on grass. Moreover, Legac hired a “baseball expert” who opined that the school made the drill more unsafe by allowing the hitter – the coach – to use an aluminum bat to hit ground balls across the gymnasium, which was only 48 feet away from Legac. The expert explained that on a regulation field, the fielder closest to the batter (besides the catcher) is the pitcher, who stands 60’ 6” away. Accordingly, these unrealistic and unfamiliar conditions negated Legac’s baseball experience, and therefore made it impossible for him to appreciate and ultimately assume the risk.
A majority of the Court held that, although these particular conditions may have varied from Legac’s prior experience, Legac could still be deemed to assume the risk. Critically, Legac testified that he had the opportunity to observe other participants field ground balls just moments before he was called into the drill. Moreover, Legac had the opportunity to interact with ground balls during the first several days of the multi-day tryout. Accordingly, the Court reversed the trial court and held that Legac assumed the risk of injury and his complaint must be dismissed. Thanks to Evan King for his contribution to this post. Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.