Sutfin v. Scheuer

Pine and Davis, JJ.

(dissenting). We dissent and vote to affirm denial of summary judgment to any party. The majority holds that plaintiff assumed the risk of being struck by the *949baseball by standing in the street 10 feet behind one of the defendants even though he was not watching the game and even though the defendants, who had been playing catch 25 feet apart, were standing 75 feet apart when the errant ball was thrown. Even a participant would be held to have consented only to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of the participation (Turcotte v Fell, 68 NY2d 432, 439). There is no basis in this record to find as a matter of fact or as a matter of law that plaintiff consented to the risk that a baseball thrown to a person 75 feet away might go astray and injure him.

We disagree with the majority’s statement that, analyzing the facts in terms of duty, defendants had no duty to plaintiff. Their duty, even to a participant, would be to exercise care to make the conditions as safe as they appear to be. "If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, supra, at 439). The tripling of the distance between defendants clearly increased the danger to plaintiff and was unknown to him. In our view a jury issue is presented as to the culpable conduct, if any, of plaintiff and each defendant. (Appeals from order of Supreme Court, Erie County, Kane, J. — summary judgment.) Present — Doerr, J. P., Denman, Boomer, Pine and Davis, JJ.