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Legac v. South Glens Falls Central School District

Supreme Court of New York, Third Department

May 25, 2017

FRANCIS LEGAC et al., Individually and as Parents and Guardians of MATTHEW LEGAC, an Infant, Respondents,
v.
SOUTH GLENS FALLS CENTRAL SCHOOL DISTRICT et al., Appellants.

          Calendar Date: March 31, 2017

          Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (John D. Wright of counsel), for appellants.

          Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), for respondents.

          Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

          MEMORANDUM AND ORDER

          Clark, J.

         Appeal from an order of the Supreme Court (Chauvin, J.), entered April 20, 2016 in Saratoga County, which denied defendants' motion for summary judgment dismissing the complaint.

         On March 8, 2012, during tryouts for the South Glens Falls High School junior varsity baseball team, plaintiffs' 15-year-old son, Matthew Legac, was struck in the face by a baseball after he unsuccessfully attempted to field a ground ball hit onto the school's hardwood gymnasium floor by the junior varsity coach, defendant Edward Potter, who was situated some 48 feet away.

         Plaintiffs, individually and on behalf of Legac, thereafter commenced this negligence action to recover damages for the severe injuries sustained by their son. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint on the basis that Legac had assumed the risk of being struck by a baseball. Finding that plaintiffs raised a triable issue of fact, Supreme Court denied defendants' motion, without prejudice to renewal at trial. This appeal by defendants ensued.

         Where a consenting participant in an athletic or recreational activity is aware of the risks of the activity, has an appreciation of the nature of the risks and voluntarily assumes those risks, he or she "commensurately negates any duty on the part of the defendant to safeguard him or her from th[ose] risk[s]" (Trupia v Lake George Cent. School Dist., 14 N.Y.3d 392, 395 [2010]; see Kane v North Colonie Cent. School Dist., 273 A.D.2d 526, 527 [2000]). "[B]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State of New York, 90 N.Y.2d 471, 484 [1997]; accord Anand v Kapoor, 15 N.Y.3d 946, 947-948 [2010]; see Navarro v City of New York, 87 A.D.3d 877, 877-878 [2011]). "[A]wareness of risk is not to be determined in a vacuum[, but is] to be assessed against the background of the skill and experience of the particular [participant]" (Maddox v City of New York, 66 N.Y.2d 270, 278 [1985]; see Morgan v State of New York, 90 N.Y.2d at 486; Benitez v New York City Bd. of Educ., 73 N.Y.2d 650, 657-658 [1989]). In the case of organized team sports, an educational institution's duty is to "exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks" (Bukowski v Clarkson Univ., 19 N.Y.3d 353, 356 [2012]; accord Kaminer v Jericho Union Free Sch. Dist., 139 A.D.3d 1013, 1014 [2016]). Care must be exercised to "make the conditions as safe as they appear to be" (Turcotte v Fell, 68 N.Y.2d 432, 439 [1986]; accord Morgan v State of New York, 90 N.Y.2d at 484; see Bukowski v Clarkson Univ., 19 N.Y.3d at 357). "If the risks of the activity are fully comprehended or perfectly obvious, [the participant] has consented to them and defendant has performed its duty" (Turcotte v Fell, 68 N.Y.2d at 439 [citations omitted]; accord Bukowski v Clarkson Univ., 19 N.Y.3d at 357; Kaminer v Jericho Union Free Sch. Dist., 139 A.D.3d at 1014).

         In support of their motion for summary judgment, defendants proffered evidence establishing that Legac was an experienced and knowledgeable baseball player who voluntarily assumed the risk of being struck by a ground ball. Legac testified that he was first introduced to the game of baseball at the age of five and that he continued to be engaged with the sport until the eighth grade. He asserted that he was well aware of the possibility that he could be hit by a baseball during tryouts, practices or games. In fact, Legac stated that he had previously been hit with a baseball while at bat, that he had witnessed a line drive hit a third baseman and that he had observed, on televised games, instances in which professional baseball players were hit by baseballs. He testified that it was common for infielders to field ground balls, that he had played an infield position in the past and that he had been taught in prior years how to properly field ground balls. Legac further acknowledged that it was common for baseballs to take unexpected bounces.

         As for the conditions of the gymnasium, it is well settled that the doctrine of primary assumption of the risk "may encompass risks engendered by less than optimal conditions, provided that those conditions are open and obvious and that the consequently arising risks are readily appreciable" (Roberts v Boys & Girls Republic, Inc., 51 A.D.3d 246, 248 [2008], affd 10 N.Y.3d 889');">10 N.Y.3d 889 [2008]; see Bukowski v Clarkson Univ., 19 N.Y.3d at 356; Sykes v County of Erie, 94 N.Y.2d 912, 913 [2000]; Maddox v City of New York, 66 N.Y.2d at 277-278). Here, defendants' submissions demonstrated that, prior to the accident, Legac had an adequate opportunity to observe the less than optimal conditions of the gymnasium, where tryouts had occurred on three of the four days due to weather, and how baseballs reacted to the particular flooring of the gymnasium. Legac testified that, on the second day of tryouts, he twice participated in a ground ball fielding drill and successfully fielded one of two ground balls that were hit toward him. With respect to the accident, Legac stated that, during the fourth day of tryouts, Potter conducted a drill in which each player fielded five ground balls in succession. He asserted that he was the fourth or fifth player in line for the drill and, thus, that he had observed the players ahead of him attempt to field 20 to 25 ground balls before it was his turn. He stated that many of these players had difficulty fielding the ground balls hit by Potter. According to Legac, when it was his turn, the ground ball "took an odd hop" and struck him in the face. While Legac testified that he believed that Potter was hitting the ball "too hard" and that the baseball traveled faster on the gymnasium floor than it would have on a baseball field, such conditions were open and obvious and clearly appreciated by Legac, who had the opportunity to watch the players ahead of him complete the ground ball fielding drill and had observed the ball interact with the flooring over three days of indoor tryouts (see Sykes v County of Erie, 94 N.Y.2d at 913). Inasmuch as the conditions inherent in the indoor ground ball fielding drill were readily apparent to Legac and the risk of being struck by a ball was a reasonably foreseeable consequence of engaging in that drill, we find that defendants established their prima facie entitlement to summary judgment dismissing the complaint (see Kaminer v Jericho Union Free Sch. Dist., 139 A.D.3d at 1014-1015; Harris v Cherry Val.-Springfield School Dist., 305 A.D.2d 964, 964-965 [2003]; Steegmuller v Siegel, 202 A.D.2d 855, 856 [1994], lv denied 83 N.Y.2d 760');">83 N.Y.2d 760 [1994]; see generally Bukowski v Clarkson Univ., 19 N.Y.3d at 356-358).

         In opposition, plaintiffs failed to raise a triable issue of fact. Plaintiffs proffered the affidavit of John Pinkman, a purported "baseball expert, " who opined that Potter had conducted the indoor ground ball fielding drill in a manner that unreasonably increased the risk level inherent in the activity. Specifically, Pinkman asserted that Potter unreasonably enhanced the risks by, among other things, conducting the drill at an unsafe distance of 48 feet, using an aluminum fungo bat and a regulation baseball and hitting the ball with too much force for an indoor drill. However, Pinkman failed to cite industry standards, scientific studies, regulations or other objective bases for his conclusory opinions. Although Pinkman stated that the distance of 60 feet 6 inches - the distance between the pitcher's mound and home plate - was the "shortest distance that would exist between a batter and a fielder during a high school baseball game, " he provided no objective support for his conclusion that the shorter distance of 48 feet was unsafe. Nor did he account for situations in which infield players may field baseballs from a position closer than the pitcher's mound. Thus, in the absence of a technical or scientific basis, Pinkman's speculative and conclusory opinions lacked probative force and, therefore, were insufficient to raise a triable issue of fact and defeat defendants' motion for summary judgment (see Grandeau v South Colonie Cent. School Dist., 63 A.D.3d 1484, 1486 [2009]; see generally Ramos v Howard Indus., Inc., 10 N.Y.3d 218, 224 [2008]; Romano v Stanley, 90 N.Y.2d 444, 451-452 [1997]). Accordingly, plaintiffs' complaint must be dismissed.

          McCarthy, J.P., Egan Jr. and ...


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