Spectator Injured By Little League Batter Assumed The Risk Of Injury

In yet another decision discussing the vexing issue of primary assumption of risk, the Appellate Division, First Department held that a mother who was struck by a bat wielded by a player warming up on a pathway adjacent to a field assumed the risk of injury. The majority found it of no consequence that the “on deck” circle was in an area open to the public or that plaintiff was a spectator, not a participant, of the game. In contrast, the 2 judge dissent argued that plaintiff’s injury did not involve a risk normally associated with baseball, particularly given the location of plaintiff’s accident.

Given the 2 judge dissent, plaintiff has a right of appeal to New York’s highest court, which her attorney has indicated he will pursue. Stay tuned.