By notice of motion dated September 25, 2012, defendants United Nations International School (UNIS), Wrye, and Muniz (collectively, UNIS) move for an order granting summary dismissal of the action against them. By notice of cross motion dated October 18, 2012, DeRosa also seeks an order granting him summary judgment. Plaintiff opposes. [*2]

Plaintiff, a senior in high school, joined a baseball team sponsored by defendant UNIS. (Affirmation of Paul F. Clark, Esq., dated Sept. 25, 2012 [Clark Aff.], Exh. D). As he only wanted to play catcher, he did not try out for any other position. Although plaintiff was familiar with the game, how it was played, the associated risks of injury, and had participated in games of stickball at school as well as several pick-up games outside of school (id.), he had never before played a school-organized baseball game, had never been thrown a full baseball pitch, and had participated in only one practice session prior to the accident. He also understood and acknowledged that he was aware of the potential risk of injury for those participating in baseball, and planned to try out for a team in college. (Clark Aff).

The UNIS team always warmed up by running and participating in "soft tosses" during tryouts and practices before any other baseball activities, as well as before the baseball games themselves. Plaintiff was injured when he was struck by a baseball thrown by his teammate, co-defendant Alex DeRosa, during pre-game warm-ups on April 22, 2005. (Id.).

Notwithstanding that the rules of the New York Public High School Athletics Association mandate at least 10 team practices before participation in a game (Affirmation of James T. Moriarty, Esq., dated Feb. 11, 2013 [Moriarty Aff.], Exh. 1), plaintiff was part of the UNIS team that day. After the team had completed its running warm-ups, it commenced soft tosses. DeRosa stood by the first base foul line. Plaintiff walked onto the field, approximately 20 or 25 feet away, turned around, and saw DeRosa holding a baseball at shoulder height. Keeping him under "constant observation," plaintiff observed DeRosa standing with both feet squarely on the ground, remaining motionless when he threw the ball in a straight line toward him. As DeRosa released the ball, plaintiff's glove was positioned at neck or face level, and he was prepared to catch the ball. The ball glanced off the outer portion of his glove, knocked him to the ground, and struck his left eye, fracturing the socket. (Id.). Plaintiff admitted that he had not adjusted to the throw and "obviously . . . missed" it. He wore no safety equipment. (Moriarty Aff., Exh. 2).

UNIS and DeRosa claim that there exists no issue of fact as to whether plaintiff voluntarily assumed the risk of being struck by a baseball, a risk incident to that inherent in playing baseball. They also maintain that plaintiff was in the best position to avoid the accident itself. They thus argues that they breached no duty of care. (Clark Aff.; Affirmation of John P. Clark, Esq., dated Oct. 18, 2012.)

In opposition, plaintiff contends that the throw was not an inherent risk, but the product of reckless or wanton conduct enabled by UNIS's neglect and failure to supervise DeRosa. (Moriarty Aff.). He otherwise denies any assumption of risk based on the facts which, he argues, raise an issue as to whether he assumed the inherent risk of playing baseball, given the existence of factors that unreasonably increased the risk, which he did not assume when he engaged in play. (Id.).

A party seeking summary judgment must demonstrate, prima facie, entitlement to judgment as a matter of law by presenting sufficient evidence to negate any material issues of fact. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If the movant meets [*3]this burden, the opponent must rebut the prima facie showing by submitting admissible evidence, demonstrating the existence of factual issues that require trial. (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Bethlehem Steel Corp. v Solow, 51 NY2d 870, 872 [1980]). Otherwise, the motion must be denied, regardless of the sufficiency of the opposition. (Winegrad, 64 NY2d at 853).

A person who engages in a sport "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation," such as being "struck by a ball or bat" in the sport of baseball. (Morgan v State, 90 NY2d 471 [1997].) More recently, the Court of Appeals held that the risk of being struck by a ball is a "perfectly obvious" and inherent risk to all participants in the sport of baseball. (Bukowski v Clarkson Univ., 19 NY3d 353 [2012]).

While a participant in a sports contest "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation," such as being "struck by a ball or bat" (Morgan, 90 NY2d 471), participants do not assume all risks, only those inherent in the sport. However, where the dangers inherent in the sport are "so serious as to justify the belief that precautions of some kind must have been taken to avert them," the risk is not assumed. (Murphy v Steeplechase Amusement Co.., 250 NY 479 [1929].) Thus, it must be determined whether the conditions of the activity engaged in by the plaintiff are "unique and created a dangerous condition over and above the usual dangers that are inherent in the sport." (Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992].)

Likewise, sport participants do not assume the risks of reckless or intentional conduct (McGee v Bd. of Educ., 16 AD2d 99, 101-2 [1st Dept 1962]). And, ["a]n educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks." (Bukowski, 19 NY3d at 353).

Here, UNIS has demonstrated, prima facie, that plaintiff was not injured during a baseball game but during a pre-game soft-toss warm-up which, in and of itself, does not present a unique and dangerous condition over and above the usual dangers inherent in a baseball game. And while plaintiff may have anticipated only a soft toss, DeRosa's forceful toss does not constitute a unique and dangerous condition, nor does it evince a recklessness or enhanced risk, notwithstanding the seriousness of the ensuing injury.

As defendants have demonstrated, prima facie, that plaintiff assumed the risk of injury in voluntarily participating in the soft-toss warm-up, plaintiff's cause of action for negligent supervision must also fail as "a plaintiff who freely accepts a known risk commensurately negates any duty on the part of the defendant to safeguard him or her from the risk." (Custodi v Town of Amherst, 20 NY3d 83, 87 [2012]; Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395 [2010] ).

Accordingly, it is hereby

ORDERED, that defendants United Nations International School, Kenneth Wrye, and Harry Muniz's motion for summary judgment is granted; it is further

ORDERED, that the defendant Alex DeRosa's motion for summary judgment is granted; it is further [*4]

ORDERED, the complaint is dismissed with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED, that the Clerk is directed to enter judgment accordingly.
ENTER:
Barbara Jaffe, JSC
DATED:July 11, 2013