Schoppman v. Plainedge Union Free School District

297 A.D.2d 338, 746 N.Y.2d 325, 746 N.Y.S.2d 325, 2002 N.Y. App. Div. LEXIS 7984

Opinion

The plaintiff, a senior on Plainedge High School’s varsity softball team, was injured during a game against Sewanhaka High School when she ran into a chain link fence in the outfield while chasing a fly ball. In her action against the Sewanhaka Central High School District, sued herein as Sewahnaka Union Free School District and Sewahanaka Central High School District (hereinafter Sewanhaka), the plaintiff claims, among other things, that the fence on its ballfield, due to its construction and height, unreasonably increased the risks inherent in the game.

The Supreme Court erred in denying Sewanhaka’s motion to dismiss the complaint and all cross claims insofar as asserted against it based on the doctrine of assumption of the risk. The evidence established that the plaintiff was an experienced softball player, that the condition of the fence was open and obvious, and that the plaintiff appreciated the risks of playing with the fence in the outfield (see Morgan v State of New York, 90 NY2d 471; Conway v Deer Park Union Free School Disk No. 7, 234 AD2d 332; Bailey v Town of Oyster Bay, 227 AD2d 427). The evidence submitted by the plaintiff failed to raise a triable issue of fact as to whether the fence unreasonably increased the risks inherent in the game (see Morgan v State of New York, supra; Conway v Deer Park Union Free School Dist. No. 7, supra). O’Brien, J.P., Friedmann, McGinity and H. Miller, JJ., concur.