Child Hit in Head at Baseball Practice Didn't Assume Risk, Says Nassau Court

In "Split NY Appeals Court Finds School Pitcher Assumed Risk of Injury," we discussed how one split appeals court grappled with the issue of whether an injury claim stemming from an accident on a baseball field should be barred as a matter of law, based upon the argument that the participants in a sporting activity may assume the risk that they will be injured in the process.

And that rule makes sense.

On the other hand, the assumption of risk doctrine is not without limits; an important exception to this doctrine is where the plaintiff did not knowingly and voluntarily assume the risk.

And it is this exception to the rule that played a large part in a Nassau County trial judge's recent decision in the negligent supervision case of Perez v. Nassour (which appears in the printed edition of today's New York Law Journal) to deny the defendants' applications seeking to dismiss the cases against them.

In denying their motions, the judge stated as follows:

"Defendants have not established their entitlement to summary judgment. The infant plaintiff was only 10 years old and was participating in Little League and organized sports for the first time. When he got hurt, he was precisely where he was instructed to be doing exactly what he was instructed to do, per Coach Nassour's instructions. The practice location time and the equipment location was chosen by Coach Nassour as was the sequencing of events at the practice, all of which may have been violative of the applicable rules and may have exposed the infant-plaintiff to unassumed, concealed and increased risks."