As a general rule in New York, the primary assumption of risk doctrine bars recovery for a plaintiff who is a voluntary participant in a sporting or recreational activity.  However, in Weinberger v. Solomon Schechter School of Westchester, the Appellate Division Second Department recently reversed a defense trial verdict on appeal involving a high school softball player injured during batting practice.

In Weinberger, the plaintiff, a 14-year old freshman junior varsity softball player, was struck in the face by a ball off the bat of a batter during batting practice with her team.  The testimony at trial established that her coach had instructed the team to perform a “rapid fire drill” that involved the pitcher standing closer to home plate than the pitching mound in order to throw a quick succession of pitches.  Before the accident, the plaintiff had been pitching behind the safety of a protective “L-screen.”  Regulations promulgated by the National Softball Association require these protective screens to be freestanding.  However, the school’s L-screen was simply held in place between two benches and kept falling down during this rapid fire drill.  Towards the end of practice, the protective screen fell again.  Trial testimony indicated that the coach had advised the plaintiff to leave the protective screen on the ground and to continue pitching from the location that was approximately six feet closer to home plate than the mound.

Over the plaintiff’s objection, the trial judge charged the jury with amended PJI 2:55, that instructs the jury about the theory of primary assumption of risk.  The jury then returned a defense verdict for the school as the plaintiff had voluntarily assumed the risk of injury involved in softball batting practice.  The Appellate Division reversed, stating that as a matter of law, the primary assumption of risk was not applicable because the doctrine does not serve as a bar to liability if the risk is not assumed, concealed, or unreasonably increased.  Furthermore, they reiterated that primary assumption of risk must be assessed on a case by case basis and the plaintiff’s skill and experience must be assessed in conjunction with whether the conditions caused by the defendants’ negligence were unique and created a dangerous condition over and above the usual dangers inherent in the sport.

Analyzing the facts before them, the court cited the defective nature of the protective L-screen, the plaintiff’s age and inexperience playing softball and the fact that she was instructed by her coach to stand closer to home plate than is the standard distance for pitching in the sport of softball.  The Appellate Division ultimately remanded the case for a new trial, concluding that the trial court should have charged the original version of PJI 2:55, that addresses the implied assumption of risk, as well as PJI 2:36 to address the plaintiff’s comparative negligence.

Thanks to Michael Nunley for his contribution to this post.