Bauman & Kunkis, P.C. (Mischel & Horn, P.C., [Scott T. Horn], of counsel), for appellant.
Lynch Schwab, PLLC, White Plains, N.Y. (Louis U. Gasparini of counsel), for respondent.
PETER B. SKELOS, J.P. THOMAS A. DICKERSON LEONARD B. AUSTIN ROBERT J. MILLER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiff appeals from (1) a judgment of the Supreme Court, Rockland County (Walsh II, J.), dated May 10, 2010, which, upon a jury verdict finding the defendant not at fault in the happening of the accident, is in favor of the defendant and against her on the issue of liability, dismissing the complaint, and (2) an order of the same court dated September 22, 1010, which denied her motion pursuant to CPLR 4404 to set aside the verdict on the issue of liability and for a new trial.
ORDERED that the judgment is reversed, on the law, the complaint is reinstated, and the matter is remitted to the Supreme Court, Rockland County, for a new trial; and it is further,
ORDERED that the appeal from the order is dismissed as academic in light of our determination on the appeal from the judgment; and it is further,
ORDERED that one bill of costs is awarded to the appellant.
On May 12, 2008, the plaintiff's daughter (hereinafter S.) was injured while participating in junior varsity softball team batting practice for her high school, the defendant, Solomon Schechter School of Westchester (hereinafter the School), under the direct supervision of her coach, Linda Pisano, on the School's grounds. At the time of the incident, S., then 14 years old, was a freshman at the School. This was S.'s first season with the School's team. However, she had previously played for two years in the New City Softball League.
The plaintiff, as mother and natural guardian of S., and individually, commenced this action against the School and Pisano, inter alia, to recover damages for personal injuries. The plaintiff discontinued the action against Pisano and the case proceeded to a jury trial against only the School on the issue of liability.
The testimony at trial established that, on the date of the accident, Pisano instructed the team to perform a new drill for batting practice called the "rapid fire drill." During the rapid fire drill, the pitcher was required to be closer to home plate than the pitching mound in order to throw a quick succession of pitches.
The testimony also demonstrated that Pisano elected to use an "L-screen" during batting practice during the rapid fire drill. Regulations promulgated by the National Softball Association required protective pitching screens, such as the subject L-screen, to be freestanding. It was undisputed that the L-screen was not freestanding but, rather, was propped up between two benches and fell down several times during the batting practice.
Near the end of batting practice, the L-screen fell again while S. was pitching. According to Pisano's deposition testimony, which was read to the jury on the plaintiffs' case-in-chief, S. then asked Pisano if she could continue to pitch, to which she responded "are you okay with pitching?" Pisano testified that she did not get a response but did not direct anyone to put the screen back up. She did advise S. to move a step over before pitching to the last batter because she was left handed. Pisano acknowledged that S. was pitching from in front of the mound and "not on the mud, because it was all mud [on] the mound."
Two of the other players testified that Pisano advised S. to leave the L-Screen on the ground. S. testified that, after consulting with Pisano, she left the L-screen on the ground and threw another pitch, which was hit back at her, striking her in the face.
The School's athletic director testified that, at the time of the accident, the rubber on the pitcher's mound for the School's softball field was situated 40 feet away from home plate in accordance with the rules of the National Federation of State High School Associations. The rubber was in the center of the mound which measured 12 feet in diameter and ...