Sometimes, no matter which way you go in a case, you're going to be left with troubling ramifications. Therefore, it is not surprising that in Bukowski v. Clarkson University, a decision in a school negligence case that was handed down on July 14 by one of New York's appellate courts, resulted in a 3-2 split decision, with nearly half the court opining that this sports injury case should not have been dismissed.

In this case, the plaintiff was a freshman at Clarkson University, and was asked to pitch batting practice at an indoor facility, without the benefit of a protective "L" screen, and in poor lighting. What happened next is fairly predictable: he was seriously injured when a ball was hit right back at him, and into his face.

At trial, the lower court dismissed the plaintiff's case - before it was even submitted for the jury's consideration - finding that no rational jury could find in the plaintiff's favor because he had knowingly assumed this open and obvious risk of injury associated with pitching batting practice. The majority of the appeals court agreed, and further found that there was insufficient evidence to show that he was compelled to pitch without the protective screen (for more on this topic, please see "When Assumption of the Risk is Not a Valid Defense in NY").

While overall, I agree with the majority in this case, this decision is not without a major drawback: schools will have less incentive to make sure that all appropriate safety measures are taken to protect their student-athletes.