Opinion
0155-06.
March 5, 2008.
The following papers read on this motion:
Notice of Motion/ Order to Show Cause .......... 1-3 Answering Affidavits ........................... 4-6 Replying Affidavits ............................ 7,8 Briefs: ........................................ 9,10Upon the foregoing papers, it is ordered that this motion by defendants for an order pursuant to CPLR 3212 granting summary judgment in their favor dismissing plaintiffs' complaint is granted.
This is an action to recover money damages for personal injuries allegedly sustained by infant plaintiff Thomas Godwin (the "infant plaintiff") arising from an incident that occurred on April 20, 2006 at Nuzzi Field, New Hyde Park, New York. The infant plaintiff, then 15 years old and Rudy Russi (the "defendant") then 16 years old were teammates on a Little League baseball team. Plaintiffs allege the infant plaintiff was injured when a baseball thrown by defendant during warm-up struck the infant plaintiff in the forehead.
Although many of the facts herein are not in dispute, a thorough reading of the transcripts of the examinations before trial of the parties and non-party witnesses reveal certain factual issues.
Plaintiff claims to have arrived at Nuzzi Field for practice. Various teammates were present and warming up by playing catch in pairs. After arriving and putting down his drink, he was in the area where the other boys were warming up, talking to another teammates, without putting on his fielder's glove, when he was struck with a ball thrown by the defendant, causing him to sustain injury.
Defendant claims that he was warming up, having a catch with another teammate when plaintiff arrived, talked to another teammate, put his glove on, put his hand in the air, had his glove in position to catch and asked for the ball, which when thrown to him struck him in the head.
The standards for summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law ( Alvarez v Prospect Hosp., 68 NY2d 320). Thus, when faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial ( Miller v Journal-News, 211 AD2d 626). Thus, the burden on the moving party for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact ( Ayotte v Gervasio, 81 NY2d 1062).
It is fundamental that to recover in a negligence action a plaintiff must establish that the defendant owed him a duty to use reasonable care, and that the defendant breached that duty ( Akins v Glens Falls City School District, 53 NY2d 325).
Credibility of witnesses, truthfulness and accuracy of testimony, whether contradicted or not, and the significance of weaknesses and discrepancies are all issues for the trier of fact ( Pedone v B B Equipment Co., Inc., 239 AD2d 397).
Defendant, in support of this motion argues that the undisputed facts demonstrate that plaintiff, as an experienced baseball player, placed himself in a situation where he was on the field while the players were warming up by playing catch. Therefore, plaintiff put himself in danger of being struck by a misthrown ball ( Sutfin v Scheuer, 74 NY2d 697) and, since plaintiff had previously participated in such a sports activity on numerous occasions, the court may reasonably conclude that he assumed the risk of injury from this activity ( Regan v State of New York, 237 AD2d 851, lv. App. Den'd 91 NY2d 802).
Generally, the participants in such a sports activity have been held to have assumed the risks of injury normally associated with said activity ( Morgan v State of New York, 90 NY2d 471; Kimba v Ellis, 1 NY2d 399; Martin v Fiutko, 27 AD3d 1130; Rutnik v Colonie Center Court Club, Inc., 249 AD2d 873).
Plaintiffs, in opposition to the motion, argue that they have raised a triable issue of fact based upon the assertion that defendant's conduct was reckless or intentional, or that his conduct created a dangerous condition above and beyond the usual risks and dangers inherent to the game of baseball. This is based upon the concept that a participant in a sport assumes all commonly appreciated risks inherent in that sport but does not assume the risks of reckless or intentional conduct (Sutton v Eastern New York Youth Soccer Ass'n., Inc., 8 AD3d 855; Kramer v Arbore, 309 AD2d 1208; Keicher v Town of Hamburg, 291 AD2d 920).
Plaintiffs further asserts that the defendant could be deemed negligent in throwing the ball to infant plaintiff without giving some traditional warning or call before doing so ( see Jackson v Livingston Country Club, Inc., 55 AD2d 1045).
Thus, it is contended that the risk assumed by the infant plaintiff is not so broad as to encompass that of being struck by a negligent or reckless act ( Morgan v State, supra; Reid v Druckman, 309 AD2d 669).
Although the court has found that issues of fact exist, none of these issues affect the issue of proximate cause and infant plaintiff's assumption of risk.
In has been held that a baseball player assumed the risk of being hit by a wild pitch from a pitching machine while taking batting practice, when the player was fully familiar with said machine and was aware that pitches thrown by said machine could be wild ( see Harris v Cherry Valley-Springfield School District, 305 AD2d 964). Likewise, a ball "getting away" from an individual involved in a catch, and being thrown wild" is common and foreseeable.
In the absence of proof that defendant's action was "intentional or reckless" this court must hold it to be an act which is common or at worst negligent. Considering the age and skill of the players and nature of the particular activity, and the risks normally attached thereto, the defendant's conduct cannot be said to amount to a careless disregard for the safety of others as to create risks not fairly assumed ( McGee v Board of Ed. of the City of New York, 16 AD2d 99, app den. 133 NY2d 596).
Summary judgment is warranted for a defendant in a negligent action when it is shown indisputably that the particular injury was caused by a condition or practice which is common to a particular sport ( Turcotte v Fell, 68 NY2d 432). Therefore, summary judgment in favor of defendants is granted and plaintiffs' complaint is dismissed.