| Viola v Carmel Cent. School Dist. |
| 2012 NY Slip Op 04001 [95 AD3d 1206] |
| May 23, 2012 |
| Appellate Division, Second Department |
| Joann Viola, Individually and as Mother and Natural Guardian ofAshley Viola, an Infant, Respondent, v Carmel Central School District et al.,Appellants. |
—[*1] Pirrotti Law Firm, LLC, Scarsdale, N.Y. (Anthony Pirrotti, Jr., of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Putnam County (Lubell, J.), dated August 3, 2011, which deniedtheir motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
Ashley Viola (hereinafter Ashley), a tenth grader on the girls' junior varsity softball team forthe defendant Carmel High School (hereinafter the high school), allegedly sustained personalinjuries when she slid into second base during a game held on a field behind the high school. Thestationary base was anchored into the ground. The base had been installed by the grounds crew ofthe defendant Carmel Central School District (hereinafter the school district).
Ashley's mother, suing individually and on Ashley's behalf, commenced this action againstthe high school and the school district to recover damages for, inter alia, Ashley's personalinjuries. The plaintiff alleged that the defendants were negligent in their installation of the secondbase, i.e., it was improperly positioned in that one of its points, rather than a flush side, faced firstbase. Ashley allegedly was injured when her left foot hit the point of the base and stoppedabruptly.
The defendants moved for summary judgment, and the Supreme Court denied the motion.The defendants appeal. We affirm.
"The doctrine of primary assumption of risk provides that a voluntary participant in asporting or recreational activity 'consents to those commonly appreciated risks which are inherentin and arise out of the nature of the sport generally and flow from such participation' " (Alqurashi v Party of Four, Inc., 89AD3d 1047, 1047 [2011], quoting Morgan v State of New York, 90 NY2d 471, 484[1997]). The doctrine does not serve as a bar to liability if the risk is unassumed, concealed, orunreasonably increased (see Benitez v New York City Bd. of Educ., 73 NY2d 650, 654[1989]; Alqurashi v Party of Four, Inc., 89 AD3d at 1047-1048; Demelio v Playmakers, Inc., 63 AD3d777, 778 [2009]; Ross v New YorkQuarterly Mtg. of Religious Socy. of Friends, 32 AD3d 251, 252 [2006]). Theassumption of risk doctrine "encompasses risks associated with the construction of the playingsurface" (Morlock [*2]v Town of N. Hempstead, 12 AD3d 652, 652 [2004]), "'and any open and obvious condition on it' " (Casey v Garden City Park-New Hyde Park School Dist., 40 AD3d901, 902 [2007], quoting Welch v Board of Educ. of City of N.Y., 272 AD2d 469,469 [2000]).
The defendants failed to establish, prima facie, that Ashley assumed the risk of her injury.Although generally, a softball or baseball player assumes the risk of injury from sliding into abase (see Martinelli v Town of E. Fishkill, 300 AD2d 551, 551 [2002]; Totino vNassau County Council of Boy Scouts of Am., 213 AD2d 710, 711 [1995]; Castello vCounty of Nassau, 223 AD2d 571, 572 [1996]; Gonzalez v City of New York, 203AD2d 421, 421-422 [1994]; Strauss v Town of Oyster Bay, 201 AD2d 553, 554 [1994]),here, the defendants failed to demonstrate that the base was properly positioned, that Ashley wasaware of the allegedly improper positioning, or that it was an open and obvious condition.Moreover, the defendants failed to establish that the allegedly improperly positioned base did notunreasonably increase the risk of injury as, among other things, the defendants' employeestestified that an improperly positioned base would be a hazard for sliding runners and that a gameshould be stopped to correct such a condition.
In view of the defendants' failure to sustain their prima facie burden, the sufficiency of theplaintiff's opposing papers need not be considered (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]).
Accordingly, the Supreme Court properly denied the defendants' motion for summaryjudgment dismissing the complaint (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).Skelos, J.P., Dickerson, Eng and Austin, JJ., concur.