Roberts v. Boys & Girls Republic, Inc.

Kavanagh, J. (dissenting).

Although factual issues abound in this appeal, it has been established that when struck by the bat, plaintiff was standing off the field of play in an area immediately adjacent to the bleachers, but not closed off to spectators, or in any way marked or delineated as an on-deck circle, or otherwise identified as a location that would be used by any of the players participating in the game. Even though faced with these facts and plaintiffs sworn testimony that before being struck she did not know that the area was being used as an on-deck circle and had not seen anyone swing a bat “as if they were going to hit a ball,” the majority concludes as a matter of law that plaintiff assumed the risk of this accident. I respectfully disagree. Not only in my view do significant questions exist as to whether the condition that caused this accident was “open and obvious” to this plaintiff, but it is also not clear that what occurred—a spectator being struck in the side of the face by a bat being swung by a player off the field of play—is a risk necessarily *253inherent in the game of baseball. I do not believe that defendants have provided competent evidence that conclusively establishes as a matter of law that they are entitled to summary judgment on either of these issues, and therefore I must respectfully dissent.

Plaintiff was at the park to watch her son’s little league practice. When the accident occurred, she was standing on a path that went from the entrance of the park to the spectator bleachers adjacent to baseball “Field Six.” Along the third base side of Field Six ran a chainlink fence that separated the bleachers from the field of play, and which had an opening that allowed entry onto the field of play. Field Six lay in front of the bleachers; behind the bleachers was a separate, grassy area where plaintiffs son’s little league team was practicing.* During the practice, plaintiff sat on the bleachers. When the practice concluded, plaintiff met her son with his team and coach on the path on the spectator’s side of the opening in the fence that led to Field Six. Another team was on Field Six at this time playing a scrimmage game. After speaking briefly to her son and Coach Alameda, plaintiff proceeded to walk toward the bleachers. Unbeknownst to plaintiff, as she approached the bleachers she walked near an area that had been unofficially designated as an “on-deck” circle, where one of the players involved in the scrimmage on the field was standing with an aluminum bat. The player took a warm-up swing with the bat while standing off to the side of plaintiff and struck her on the right side of her face, causing injuries, including a concussion, fractures to the upper and lower jaw and loss of teeth.

Contrary to the impression conveyed by the majority, a review of the record does not support the conclusion that plaintiff had to have been aware that the pedestrian area on the spectator’s side of Field Six was being used as an on-deck circle prior to the accident. In fact, this was plaintiffs first time at this ballpark and she was there for the express purpose of watching her son participate in baseball practice. Her son, during most of the period that she was at the park before the accident, was practicing in an area that drew her attention away from the activities tak*254ing place on Field Six and the area where the unmarked on-deck circle was located.

Plaintiff admits that she saw children “jostling around” in this area bats in an offhand way low to the ground when she first entered the park. However, she denies ever seeing any children taking overhead swings in that area or swinging the bats “as if they were going to hit a ball.” As such, it is difficult to conclude that the use of this area as an on-deck circle, given its location and its lack of appropriate identification, was open and obvious to this plaintiff prior to the accident.

In my view, plaintiffs injury resulted not from a risk commonly associated with the game of baseball, but rather from a risk that was created as a direct result of defendants permitting the use of this nondefined, nondesignated “on-deck” circle off the field of play in an area open to the public where plaintiff had every right to be. The assumption of risk doctrine does “not preclude a recovery for negligent acts which unduly enhance such risks” (Hornstein v State of New York, 30 AD2d 1012, 1013 [1968]). Moreover, simply because plaintiff was a spectator at an event that involved the use of bats and balls did not relieve defendants from the responsibility of properly supervising the children in their charge (see Hochreiter v Diocese of Buffalo, 309 AD2d 1216, 1217 [2003]) and, specifically, “to direct them regarding a safe place to stand on a field lacking fences, on-deck circles, or dugouts” (Muniz v Warwick School Dist., 293 AD2d 724 [2002] [although defendants made a prima facie case for summary judgment that plaintiff assumed risk of being hit by bat when, while playing softball in gym class, he was ‘on-deck’ batter and was hit by a bat released by another student after hitting the ball, plaintiffs expert raised questions of fact whether risk was unreasonably increased by supervising teacher’s failure to direct children with proper place to stand on field lacking an on-deck circle]). “The element of risk assumed by [a] plaintiff [does] not relieve [a] defendant from the obligation of using reasonable care to guard against a risk which might reasonably be anticipated” (Baker v Eastman Kodak Co., 34 AD2d 886 [1970], affd 28 NY2d 636 [1971]; Havens v Kling, 277 AD2d 1017, 1018 [2000] [while assumption of risk doctrine barred claims against infant who swung golf club and hit infant plaintiff, the claims of negligent supervision against sponsors of golf program survived]).

Not every injury that occurs during a baseball game that is caused by a bat or a ball is necessarily “inherent” to the conduct *255of the sport. This is not a situation where a spectator was struck by a baseball hit or thrown off the field of play (Procopio v Town of Saugerties, 20 AD3d 860 [2005], lv denied 5 NY3d 716 [2005]), into the stands (Pira v Sterling Equities, Inc., 16 AD3d 396 [2005], lv denied 5 NY3d 713 [2005]) or onto an adjoining field of play (Koenig v Town of Huntington, 10 AD3d 632 [2004]), all of which represent risks inherent to the game. If plaintiff wandered into a marked, designated on-deck circle for batters located on the field of play and was then hit by a bat swung by a batter awaiting his or her turn at bat, I would arrive at a different conclusion. However, plaintiff testified that she was not aware, nor on these facts can we say as a matter of law that she should have been aware, that the on-deck circle was located in an area off the playing field where the public was invited to stand and gather. Accordingly, in my view it cannot be said as a matter of law that plaintiff should have been aware of the risks that the majority claims she knowingly and willingly assumed.

Williams and Buckley, JJ., concur with Lippman, P.J.; Andrias and Kavanagh, JJ., dissent in a separate opinion by Kavanagh, J.

Order, Supreme Court, New York County, entered September 25, 2006, affirmed, without costs.

While plaintiff and her son describe where her son was practicing as the outfield of Field Six, Coach Alameda explained that the team never took the field, but actually was practicing in the grassy area near the field, which ran from the right of the bleachers (if one was facing the bleachers) and behind the bleachers. An older team was scrimmaging on the field. In any event, as plaintiff was watching her son’s practice, she was not facing the direction of the on-deck circle, which would have been to her right.