Napoli v. Mount Alvernia, Inc.

239 A.D.2d 325, 657 N.Y.S.2d 197, 1997 N.Y. App. Div. LEXIS 4619

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1997
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants Mount Alvernia, Inc., a/k/a Camp Alvernia, and Kurt Buckholz separately appeal from an order of the Supreme Court, Richmond County (Cusick, J.), dated August 1, 1996, which denied their respective motions for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the defendants’ motions for summary judgment are granted, and the complaint is dismissed.

The plaintiff James Napoli and the defendant Kurt Buckholz were both children attending a summer camp run by the defendant Mount Alvernia, Inc., a/k/a Camp Alvernia. On July 8, 1990, Napoli and Buckholz were both going to participate in a game of softball. Before the start of the game, Buckholz swung a bat on the sidelines, somewhere between home plate and third base, and inadvertently hit Napoli in the jaw with the bat.

"Pursuant to the doctrine of assumption of risk, an injured party may not seek compensation for injuries incurred as the consequence of some risk or danger usually associated with a pursuit voluntarily undertaken. Thus, when it is shown indisputably that a particular injury was caused by a condition or practice which is common to a particular sport (see, e.g., Turcotte v Fell, 68 NY2d 432), summary judgment is warranted” (Cuesta v Immaculate Conception R. C. Church, 168 AD2d 411). Here, the injury was incurred as the result of a danger inherent in the game of baseball, the danger associated with people swinging bats on the sidelines while warming up for the game. Thus, the defendants’ motions for summary judgment should have been granted. Rosenblatt, J. P., Sullivan, Pizzuto and Friedmann, JJ., concur.