Parents Beware – be careful while attending your next little league game or practice. We all know that those participating in athletic activities assume the risks that those activities entail. But what about spectators or bystanders to athletic events? To what extent do they assume the risks of athletic events. On January 8th the First Department decided a case which parents may want to take note of – Roberts v Boys & Girls Republic, Inc., 2008 NY Slip Op 00073.
The plaintiff-mother was watching her son’s little league team during a scrimmage game. She was injured when she strayed into the path of a bat being swung by another player taking a practice swing along the off-field side of a chain-link fence running parallel and adjacent to the field’s third-base sideline. Had the accident not occurred, the player, upon the completion of his practice swings, would have passed through an opening in the fence near home plate to take his turn at bat. The Court found that the mother assumed the risk of her injuries and thus dismissed her action on a summary judgment motion. The Court found that the risk of being struck by a swung bat was perfectly obvious. It found that the area where the bats were being swung was “logically situated” to the game taking place on the field. It was marked with equipment, and was in continuous use by players for about the hour and a half that the plaintiff-mother was at the game. The Court stated that the area in question “was immediately adjacent to the field, discrete, obvious and avoidable by any reasonably wary spectator or bystander.”
The Court noted that the plaintiff-mother had testified that she observed numerous children along the fence area swinging bats when she entered the ball field, and again observed such activity from the bleachers as she watched her son practice. In addition, shortly before the accident, when plaintiff returned from the bleachers to the area behind home plate, she passed by a group of players holding bats in the same area. Finally, there was testimony that the player whose bat hit the plaintiff began his fateful swing when plaintiff was still some 8 to 10 feet away. Thus, the Court concluded that the sideline on-deck area was open and obvious to the plaintiff and “as safe as it appeared to be.”
The Court stated if athletic and recreational activities are to persist, “there must be tolerated a disparity between the level of safety that might be optimally or even reasonably achieved and that which the law mandates.”