In a January 9 decision in Weinberger v. Solomon Schechter School of Westchester, New York's Appellate Division, Second Department took the rare step of reversing a trial court's order dismissing a negligent supervision action, and remanding the case back to the trial court for a new trial.

Although appellate courts tend to give deference to a trial court's holdings, particularly, as here, once the jury has rendered a verdict, there are some things that an appellate court will not overlook, and one of those things is where the trial court gave the jury incorrect instructions on how to apply the law to the case they just heard.

In this particular case, evidence was presented indicating that the school had not abided by its own internal safety regulations mandating the use of a protective "L" screen during batting practice. While this screen was down, the plaintiff was instructed by her coach to pitch from closer in than the pitcher's mound. At that point, she was struck in the face at relatively close range by a line drive.

Based upon the trial court's faulty jury instructions, the jury returned a verdict in the defendants' favor, finding that the plaintiff's claim was barred because she had assumed the risk of injury. (For more on this topic, please see "How Some Sports-Related Injury Cases Survive Dismissal in New York" and "When Assumption of the Risk is Not a Valid Defense in NY").

In reversing the trial court, the appellate court noted as follows:

"Here, the Supreme Court improperly submitted to the jury the question of whether to apply the doctrine of primary assumption of risk. Under the circumstances of this case, as a matter of law, the doctrine of primary assumption of risk is not applicable and does not operate to bar the plaintiff's recovery. S., a high school freshman with limited pitching experience as a member of the School's team, cannot be said to have assumed the risk of being hit in the face by a line drive while pitching behind an L-screen, which, due to a defect, was not freestanding and had fallen down prior to the pitch that led to her injuries. In addition, it cannot be said that S. assumed that risk, when she was specifically instructed by her coach to pitch, without the benefit of the L-screen, closer to home plate than is the standard distance for pitching in the sport of softball...."

There is an important caveat here, however.

While the appellate court held that the plaintiff's case should not have been dismissed as a matter of law, it also held that the jury should be allowed to consider the plaintiff's comparative fault "in impliedly assuming the risk of pitching closer to home plate in the absence of a functional L-screen."

Jonathan Cooper
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Non-Compete, Trade Secret, Unfair Competition and School Negligence Lawyer
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