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.