The Appellate Division, First Department, by a three-to-two vote, has affirmed an order of the Supreme Court dismissing the negligence claim of a woman who, while attending her son's baseball practice, was struck by a bat being swung by a player as she passed an opening in a fence that separated the playing field from a pedestrian area. Plaintiff claimed that defendants, social service agencies who sponsored a baseball team, were negligent in supervising the players because they allowed an area just outside the baseball field to be used as an on-deck circle where players preparing for a turn at bat took practice swings. Defendants moved for summary judgment arguing that, under the doctrine of primary assumption of the risk, those who participate in or attend athletic events, whether actual games being played or practices, assumed the risk of being struck by balls, bats or players. Plaintiff opposed the motion arguing that (a) she had been attending her son's practice session, not the game that was being played when the accident happened; (b) the area being used as an on-deck circle was unmarked and, notwithstanding her own testimony that she had attended professional baseball games and about two dozen games her son had played in the year before the accident, she was unfamiliar with on-deck circles; and (c) the on-deck circle was unmarked and was located in a walkway. Defendants responded that plaintiff admitted that she had seen players taking practice swings in the on-deck circle area before the accident happened and her son testified that the player who struck his mother had started taking practice swings when his mother was about eight feet away from the player and walking toward him. The Appellate Division held that under the settled law of New York, plaintiff assumed the risk of being hit by a bat "by her voluntary proximity to the game" and that the unmarked on-deck circle was open and obvious to the plaintiff and was "as safe as it appeared to be." The appeal was briefed by Steven B. Prystowsky and Harry Steinberg. The summary judgment motion was written by Curt Schiner.

Linda Roberts v. Boys & Girls Republic, Inc., ___ A.D.3d ___, ___ N.Y.S.2d ___, 2008 WL 71687 (1st Dep't)