Assumption of Risk Stands Strong (NY)

In Cruz v. Longwood Central School District, the plaintiff was struck in the mouth by a softball thrown by a fellow student while participating in pre-game warm ups with her school’s softball team.  Seconds before being struck, Cruz had shut her eyes and raised her arm as she sneezed.  Cruz and her parents argued that the after-school supervisor’s temporary absence from the athletic field or his alleged lack of training was a proximate cause of Cruz’ injury.  The Second Department rejected these arguments and affirmed the lower court’s dismissal of Cruz’ claim on the basis of her primary assumption of the risk.  In doing so, the court noted that Cruz was struck so quickly that no amount of supervision could have prevented the accident.  The Second Department further upheld the longstanding doctrine of primary assumption of risk, noting Cruz voluntarily participated in the softball warm-up and, in doing so, consented to those injury-causing events, conditions and risks that are inherent in the activity.  Since Cruz was an experienced softball player, she knew the risks inherent in the activity and thereby assumed those risks of being hit by the softball.

Special thanks to Lora Gleicher for her contributions to this post.  For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com.