We respectfully dissent. It is our opinion that the complaint should be dismissed for the plaintiffs failure to show any negligence whatever on the part of the defendant in the following factual pattern that is undisputed.
On April 14, 1976, the plaintiff, an 18-year-old girl, who had previously watched baseball games and who had played softball in her gym classes at school, attended a high school baseball game with her boyfriend, that was being played on a field or diamond owned and maintained by the defendant. When she arrived, the game was in progress. No admission was paid or charged. The field was well kept and maintained and free of debris. A chain link fence, three feet high, ran from each end of a 20-foot high backstop (that was 60 feet behind home plate) along the first and third base lines, about 60 feet back from each base line. Bleachers sufficient to accommodate about 120 people were located behind the backstop, and there is no proof that the plaintiff was prevented from sitting there or that these bleacher seats were filled. Spectators were standing along the spectators’ side of the three-foot chain link fence, and the plaintiff and her boyfriend decided to view the game from a position behind the three-foot fence that ran along the third base line, about 10 to 15 feet from the backstop on its third base side. While standing in the place she had selected, a foul ball sharply hit by the bat of one of the players struck the plaintiff in the eye, causing her serious injury.
Having adequately screened the area of its ball park behind home plate, the defendant fulfilled its duty to the plaintiff and cannot be held in negligence when she herself selected a position that was outside the area screened. (See Ann. 91 ALR3d 24, 41, § 3 [c].) There has been no showing of any negligence on the defendant’s part, as a matter of law (Donohue v Copiague Union Free School Dist., 64 AD2d 29, affd 47 NY2d 440), and the defendant’s motion for a dismissal should have been granted (O’Bryan v O’Connor, 59 AD2d 219; Kozera v Town of Hamburg, 40 AD2d 934). The facts being undisputed, the complaint should now be dismissed, as a retrial cannot make factual that which is legally insufficient.
*244This dissent could be concluded here and now except for the reliance of the majority on the provisions of CPLR 1411 (eff Sept. 1, 1975). Concededly, this statute broadened the plaintiffs contributory negligence to culpable fault and included therein assumption of risk. Culpable fault was made comparative and the burden of proving it as an affirmative defense was placed upon the defendant, as the party asserting it, by CPLR 1412. Even if a consideration of CPLR 1411 and 1412 were necessary, the same conclusion of dismissal as a matter of law would result. When the plaintiff, with her prior knowledge of how the game was played, elected to view it from the place she herself had selected, her injury from a foul ball was just as reasonably foreseeable to her as it was to the defendant. Her prior knowledge of the danger and her consent to risk it resulted in her total assumption of the risk of injury, as a matter of law (Dillard v Little League Baseball, 55 AD2d 477). It matters not in these undisputed circumstances whether we call the plaintiffs culpable conduct assumption of risk or contributory negligence, for it was such as to completely and totally bar her recovery as a matter of law, even under the provisions of CPLR 1411 and 1412. If her conduct is denominated assumption of risk, then such conduct removed, as a matter of law, any duty of the defendant to protect her from the risks inherent in the game (Bradshaw v Puduano, 55 AD2d 828), and lacking such duty there would be no negligence on the defendant’s part. (Donohue v Copiague Union Free School Dist., supra.) If her conduct be denominated, under the provisions of CPLR 1411, contributory negligence, then it was such as to totally preclude any recovery by her— total contributory negligence, as a matter of law. To hold otherwise would be tantamount to requiring every injury of every spectator of every sport to be submitted to the jury for its determination whether there be any negligence at all on the part of the defendant and regardless of the degree of culpable fault on the part of the plaintiff Such result lacks a rational basis. As stated in Basso v Miller (40 NY2d 233, 242): "[T]he court, as it would in the usual negligence action, must make the threshold determination as to whether the plaintiff, by introducing adequate evidence on each element, has made out a case sufficient in law to support a favorable jury verdict. Only in those cases where there arises a real question as to the landowner’s negligence should the jury be permitted to proceed. In all others, where proof of any essential element falls short, the case should go no further.”
*245In our opinion, CPLR 1411 and 1412 do not apply because they are never reached where the plaintiff on her direct case has failed to prove some negligence on the defendant’s part and nothing suggests to the contrary.
Therefore, the judgment in favor of plaintiff should be reversed, and the complaint dismissed.
Mahoney, P. J., concurs with Kane, J.; Herlihy, J., concurs in a separate opinion; Staley, Jr., and Casey, JJ., dissent and vote to reverse in an opinion by Casey, J.
Judgment affirmed, with costs.