In a negligence action to recover damages for personal injuries, etc., defendant New York City Board of Education appeals from a judgment of the Supreme Court, Queens County, entered May 2, 1975, which is in favor of plaintiffs, upon a jury verdict. Judgment, insofar as it is in favor of plaintiff Robert Passantino, individually, affirmed, without costs or disbursements. Judgment, insofar as it is in favor of the infant plaintiff Roy Passantino, reversed, on the law, and, as between the infant plaintiff and the appellant, action severed and new trial granted with respect to the issue of damages only, with costs to abide the event, unless within 20 days after entry of the order to be made hereon, plaintiffs shall serve and file in the office of the clerk of the trial court a written stipulation consenting to reduce the verdict in his favor from $1,800,000 to $1,000,000, and to the entry of an amended judgment accordingly, in which event, the judgment in his favor, as so reduced and amended, is affirmed, without costs or disbursements. The findings of fact are affirmed. The amount of the verdict in favor of the infant plaintiff Roy Passantino was not warranted on this record and is excessive to the extent indicated herein. Margett, Damiani, Rabin and Shapiro, JJ., concur; Cohalan, Acting P. J., dissents and votes to reverse the judgment and to dismiss the complaint, with the following memorandum: The 18-year-old plaintiff, for one unfortunate moment, permitted his aggressiveness to overcome his common sense. As a result he is condemned, as a quadriplegic, to a life of complete helplessness, unable even to care for his most personal needs. However, in my judgment, and despite his pitiful plight, he neither proved the existence of any negligence on the part of the defendant board of education, nor of its agent, Coach La Velle, nor did he absolve himself of contributory negligence or overcome the fact that he assumed the risk. The complaint should have been dismissed, on the law, at the close of plaintiffs’ case, or, in the alternative, at the close of the entire case. In 1974, at the age of 16, Roy Passantino (hereafter sometimes referred to as plaintiff), a junior in Newtown High School, was a regular on the varsity baseball team. He had been introduced to baseball at the age of 8, and from 13 on had been playing in team competition. He was the only junior among the varsity regulars. By the time he played high school baseball, he was well grounded in the fundamentals of the game, which included base running and the elements of sliding to bases. On the fateful day he had reached third base on a play with less than two out. La Velle, coaching at third base, called for a squeeze play. This required plaintiff to start for home plate as soon as the pitcher committed himself. It also meant that the batter would lay down a bunt so that, if successful, plaintiff would score standing up while the batsman was thrown out at first base. The batter, instead of bunting, took a full swing at the ball and missed. Passantino, running at full speed, had traversed 30 or 40 of the 90 feet between the third base and home plate. The catcher, in possession of the ball, stepped four or five feet down the third base line, blocking the plate— [936]*936as he had a right to do—and awaited the onrushing plaintiff. When he was about five feet from the catcher, plaintiff suddenly lowered his head, and, without slackening his pace, crashed into the catcher like a battering ram. Both went down. Only the catcher got up. Plaintiff was completely paralyzed. On the recitation of these facts alone, it would appear that plaintiff did not act as a reasonably prudent person should have acted under the circumstances. Who could have foreseen that he would perform such a foolish act? He could have attempted to retreat and engage in a rundown situation. He might have attempted to slide around the catcher, since a baserunner is allowed three feet on either side of the basepath within which to maneuver. Instead he chose the collision course, with its tragic consequences. In the complaint it is stated that "the aforesaid occurrence and the resultant injuries were caused solely and wholly by the negligence of the defendants”. The complaint then goes on to allege, inter alia: 1. "that they [the defendants] carelessly and negligently trained, supervised, managed and controlled the said infant plaintiff and the activity involved;” and 2. "that they further failed to provide adequate and competent coaching”. A third statement alleges: 3. "that they failed to properly teach and train the rudiments and fundamentals of the game of baseball.” As to (1), Coach La Velle was in his 15th year as a teacher of physical education, had himself played baseball—and was in his second year of coaching it. As to (2) and (3), the plaintiff, at trial, admitted that La Velle and previous coaches had taught him the baseball fundamentals, most of which he had already known; and the accident, as described by Passantino himself, could not have been prevented if a multitude of supervisory personnel had been at hand (see Frazier v Young Men’s Christian Assn., Little Falls, 286 App Div 464; Minarovich v Board of Educ., 21 AD 853). To develop his allegations of negligence against the board of education, plaintiff testified that about two weeks before the tragic incident he had been involved in an allegedly similar play at home plate and had been congratulated by the coach (La Velle) for his actions at that time. As will be noted, the factual situation was completely different. On that prior occasion plaintiff was on third base and a teammate was on first. A signal was given to the runner on first to steal second, As he lit out for second, the catcher threw to the base. Passantino then broke for home. One of the infielders cut off the throw to second base and attempted to throw plaintiff out at home. As to that play, Passantino testified: "I was running and the catch was low. He [the catcher] was bent down to get it to the base and I had to knock him over.” At an examination before trial, La Velle’s recollection of the play was that plaintiff, who had been "in a semi-crouched position put his shoulder into the catcher and bowled him over. The catcher went down in a squat position catching a low ball.” In the following answer, La Velle added, "I would say he knocked the hall loose or prevented the catcher from catching it.” As a witness for the defendants at the trial itself the testimony of La Velle as to this incident was: "A run was scored at home plate. Roy scored. This was a play at the plate. It was fairly close, I presume—it was a year ago. Roy stood up and ran across the plat and touched it with his foot. The catcher may have been knocked over at the time.” On that prior instance, Passantino, and not the catcher, was entitled to the basepath. The catcher was blocking the plate, but was not in control of the ball. Therefore, plaintiff, who had the right of way, was entitled to run into him—in order to touch home plate and to score the run. The situations, as noted, were not at all analogous. But in order to show that he was encouraged to do what he did, plaintiff said La Velle congratulated him for his action on the occasion of [937]*937the delayed steal. Passantino did not say so in so many words, but the strong implication was present (and the jury presumably so inferred) that he used his head as a battering ram on the day of his accident because the coach commended him on the prior occasion. It is important to realize that, unlike physical education courses in school, participation in interscholastic activity is a purely voluntary act. The great majority of accident cases involving schools deal with situations in a gymnasium during school hours. The instant event dealt with an extracurricular activity.
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In a negligence action to recover damages for personal injuries, etc., defendant New York City Board of Education appeals from a judgment of the Supreme Court, Queens County, entered May 2, 1975, which is in favor of plaintiffs, upon a jury verdict. Judgment, insofar as it is in favor of plaintiff Robert Passantino, individually, affirmed, without costs or disbursements. Judgment, insofar as it is in favor of the infant plaintiff Roy Passantino, reversed, on the law, and, as between the infant plaintiff and the appellant, action severed and new trial granted with respect to the issue of damages only, with costs to abide the event, unless within 20 days after entry of the order to be made hereon, plaintiffs shall serve and file in the office of the clerk of the trial court a written stipulation consenting to reduce the verdict in his favor from $1,800,000 to $1,000,000, and to the entry of an amended judgment accordingly, in which event, the judgment in his favor, as so reduced and amended, is affirmed, without costs or disbursements. The findings of fact are affirmed. The amount of the verdict in favor of the infant plaintiff Roy Passantino was not warranted on this record and is excessive to the extent indicated herein. Margett, Damiani, Rabin and Shapiro, JJ., concur; Cohalan, Acting P. J., dissents and votes to reverse the judgment and to dismiss the complaint, with the following memorandum: The 18-year-old plaintiff, for one unfortunate moment, permitted his aggressiveness to overcome his common sense. As a result he is condemned, as a quadriplegic, to a life of complete helplessness, unable even to care for his most personal needs. However, in my judgment, and despite his pitiful plight, he neither proved the existence of any negligence on the part of the defendant board of education, nor of its agent, Coach La Velle, nor did he absolve himself of contributory negligence or overcome the fact that he assumed the risk. The complaint should have been dismissed, on the law, at the close of plaintiffs’ case, or, in the alternative, at the close of the entire case. In 1974, at the age of 16, Roy Passantino (hereafter sometimes referred to as plaintiff), a junior in Newtown High School, was a regular on the varsity baseball team. He had been introduced to baseball at the age of 8, and from 13 on had been playing in team competition. He was the only junior among the varsity regulars. By the time he played high school baseball, he was well grounded in the fundamentals of the game, which included base running and the elements of sliding to bases. On the fateful day he had reached third base on a play with less than two out. La Velle, coaching at third base, called for a squeeze play. This required plaintiff to start for home plate as soon as the pitcher committed himself. It also meant that the batter would lay down a bunt so that, if successful, plaintiff would score standing up while the batsman was thrown out at first base. The batter, instead of bunting, took a full swing at the ball and missed. Passantino, running at full speed, had traversed 30 or 40 of the 90 feet between the third base and home plate. The catcher, in possession of the ball, stepped four or five feet down the third base line, blocking the plate— [936]*936as he had a right to do—and awaited the onrushing plaintiff. When he was about five feet from the catcher, plaintiff suddenly lowered his head, and, without slackening his pace, crashed into the catcher like a battering ram. Both went down. Only the catcher got up. Plaintiff was completely paralyzed. On the recitation of these facts alone, it would appear that plaintiff did not act as a reasonably prudent person should have acted under the circumstances. Who could have foreseen that he would perform such a foolish act? He could have attempted to retreat and engage in a rundown situation. He might have attempted to slide around the catcher, since a baserunner is allowed three feet on either side of the basepath within which to maneuver. Instead he chose the collision course, with its tragic consequences. In the complaint it is stated that "the aforesaid occurrence and the resultant injuries were caused solely and wholly by the negligence of the defendants”. The complaint then goes on to allege, inter alia: 1. "that they [the defendants] carelessly and negligently trained, supervised, managed and controlled the said infant plaintiff and the activity involved;” and 2. "that they further failed to provide adequate and competent coaching”. A third statement alleges: 3. "that they failed to properly teach and train the rudiments and fundamentals of the game of baseball.” As to (1), Coach La Velle was in his 15th year as a teacher of physical education, had himself played baseball—and was in his second year of coaching it. As to (2) and (3), the plaintiff, at trial, admitted that La Velle and previous coaches had taught him the baseball fundamentals, most of which he had already known; and the accident, as described by Passantino himself, could not have been prevented if a multitude of supervisory personnel had been at hand (see Frazier v Young Men’s Christian Assn., Little Falls, 286 App Div 464; Minarovich v Board of Educ., 21 AD 853). To develop his allegations of negligence against the board of education, plaintiff testified that about two weeks before the tragic incident he had been involved in an allegedly similar play at home plate and had been congratulated by the coach (La Velle) for his actions at that time. As will be noted, the factual situation was completely different. On that prior occasion plaintiff was on third base and a teammate was on first. A signal was given to the runner on first to steal second, As he lit out for second, the catcher threw to the base. Passantino then broke for home. One of the infielders cut off the throw to second base and attempted to throw plaintiff out at home. As to that play, Passantino testified: "I was running and the catch was low. He [the catcher] was bent down to get it to the base and I had to knock him over.” At an examination before trial, La Velle’s recollection of the play was that plaintiff, who had been "in a semi-crouched position put his shoulder into the catcher and bowled him over. The catcher went down in a squat position catching a low ball.” In the following answer, La Velle added, "I would say he knocked the hall loose or prevented the catcher from catching it.” As a witness for the defendants at the trial itself the testimony of La Velle as to this incident was: "A run was scored at home plate. Roy scored. This was a play at the plate. It was fairly close, I presume—it was a year ago. Roy stood up and ran across the plat and touched it with his foot. The catcher may have been knocked over at the time.” On that prior instance, Passantino, and not the catcher, was entitled to the basepath. The catcher was blocking the plate, but was not in control of the ball. Therefore, plaintiff, who had the right of way, was entitled to run into him—in order to touch home plate and to score the run. The situations, as noted, were not at all analogous. But in order to show that he was encouraged to do what he did, plaintiff said La Velle congratulated him for his action on the occasion of [937]*937the delayed steal. Passantino did not say so in so many words, but the strong implication was present (and the jury presumably so inferred) that he used his head as a battering ram on the day of his accident because the coach commended him on the prior occasion. It is important to realize that, unlike physical education courses in school, participation in interscholastic activity is a purely voluntary act. The great majority of accident cases involving schools deal with situations in a gymnasium during school hours. The instant event dealt with an extracurricular activity. The plaintiff assumed the risk of injury when he tried out for and played on the high school varsity team (see McGee v Board of Educ., 16 AD2d 99; Curdo v City of New York, 275 NY 20). Dealing with this subject generally, Judge Cardozo wrote in Murphy v Steeplechase Amusement Co. (250 NY 479, 482): "Volenti non ñt injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball”. In relating the details of the prior incident, and in attempting to liken it to the facts at bar, the plaintiff built inference upon inference upon inference. The play was a completely different one (a delayed double steal, rather than a squeeze play). The ball was not in the complete possession of the catcher when plaintiff ran into him. Passantino had the right of way and the catcher was blocking the plate. If he hit the catcher at all, plaintiff did it with his shoulder and not with his head. If, on that occasion, Passantino had done something illegal, the umpire would have called him out, in which case La Velle would have had no reason to congratulate him. The inferences drawn, therefor, present as tenuous an argument as did the remarks of Stephen Douglas which Abraham Lincoln demolished by saying that they were "as thin as the homeopathic soup that was made by boiling the shadow of a pigeon that had starved to death”.
Lincoln-Douglas debate, Quincy, Ill., Oct. 13, 1858.