Assumption of Risk Defense Does Not Apply in Case of Student Hit With Ball During Track and Field Practice

In E.Z., Etc., et al v. Hewlett-Woodmere Union Free School District (County of Nassau, Index No. 610104/18), a defendant school district's efforts to dismiss a personal injury case, pre-trial, were unsuccessful as the Appellate Division, Second Department (decided on May 22, 2024) upheld that the "assumption of risk" defense does not apply.  The case arose when the plaintiff, a student of the middle school's track and field team, alleged injuries after she was stretching in an area designated by her track coaches (which was in the center of the middle school's track) and was thereafter struck in the face with an errant lacrosse ball that was thrown by a member of the school's lacrosse team (which, at the time, was practicing on the same field).  At some point after a lawsuit was filed, the defendant school district filed a motion for summary judgment, seeking a pre-trial dismissal of the case.  The trial court denied the motion, and the defendant appealed the decision.

The Appellate Division, Second Department held the following: "[I]t is not necessary to the application of assumption of risk that he injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results.  A participant is not, however, deemed to have assumed risks that are concealed or unreasonably enhanced [...]. Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk barred the plaintiff's recovery.  The defendant submitted evidence raising a triable issue of fact as to whether it unreasonably enhanced the risk of injuries by requiring the infant plaintiff to stretch on an area of the field while lacrosse practice was occurring nearby (see Buffalino v. Sport Fitness, 202 AD3d 902, 904).  Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).

Salvatore R. Marino, Esq.