| Fithian v Sag Harbor Union Free School Dist. |
| 2008 NY Slip Op 06798 [54 AD3d 719] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Daniel Fithian et al., Respondents, v Sag Harbor UnionFree School District, Appellant, et al., Defendant. |
—[*1] Kujawski & DelliCarpini, Deer Park, N.Y. (Jeffrey D. Hummel of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant Sag Harbor UnionFree School District appeals from an order of the Supreme Court, Suffolk County (R. Doyle, J.),dated October 16, 2007, which denied its motion for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
The plaintiff Daniel Fithian (hereinafter the plaintiff), a 17-year-old high school student, wasstruck in the head by a pitched ball during an interscholastic baseball game. The plaintiffs allegedthat the defendant Sag Harbor Union Free School District (hereinafter defendant) was negligentin providing and allowing the use of a cracked batter's helmet of which it had notice.
The defendant moved for summary judgment dismissing the complaint insofar as assertedagainst it, maintaining that the plaintiff's injury was a result of a known risk inherent in theparticipation in a baseball game. Accordingly, the defendant argued that the plaintiff hadassumed the risk of this injury as a matter of law.
The doctrine of primary assumption of risk provides that a voluntary participant in a sporting[*2]event assumes the known risks normally associated with thatsport (see Morgan v State of New York, 90 NY2d 471, 484 [1997]; Joseph v New York Racing Assn., 28AD3d 105, 108 [2006]). However, participants will not be deemed to have assumed the risksof reckless or intentional conduct or concealed or unreasonably increased risks (see Morgan vState of New York, 90 NY2d at 485).
The defendant correctly contends that being struck in the head by a baseball is a known riskinherent in the sport of baseball and thus established, prima facie, its entitlement to judgment as amatter of law (see Sanchez v City ofNew York, 25 AD3d 776 [2006]; Cuesta v Immaculate Conception R.C. Church,168 AD2d 411 [1990]). However, the plaintiff's deposition testimony, along with affidavitsof his teammates, raised a triable issue of fact as to whether the alleged cracked batter's helmetunreasonably increased the risk of injury (see Muniz v Warwick School Dist., 293 AD2d724 [2002]; Hubbard v East Meadow Union Free School Dist., 277 AD2d 353 [2000];Baker v Briarcliff School Dist., 205 AD2d 652 [1994]).
Accordingly, the Supreme Court properly denied the defendant's motion for summaryjudgment dismissing the complaint insofar as asserted against it, in that it cannot be said that, asa matter of law, the plaintiff assumed the risk of the injury he sustained (see Henig v HofstraUniv., 160 AD2d 761, 762 [1990]). Skelos, J.P., Covello, Leventhal and Belen, JJ., concur.