In Bukowski v. Clarkson University, a sharply split appeals court has held that an injured pitcher, struck in the face by a baseball during an indoor "live" batting practice, assumed the risk of injury and cannot sue his school. The pitcher, Shane Bukowski, admitted that he was an experienced baseball player. He argued, however, that the inherent risk of being struck by an errant baseball was increased because the defendants did not require protective screening for indoor "live" practices and because the poor lighting conditions made it more difficult for him to see and react to batted balls.
At trial, the court tossed the pitcher's negligence action. The court rejected his arguments that the risk of injury was unreasonably increased due to an absence of an L-screen (the screen that protects a pitcher when balls are batted directly at him) or because the indoor lighting conditions were insufficient.
The appellate court determined that the evidence presented at trial (including expert testimony) could not defeat an assumption-of-risk defense. Under New York law, the risks assumed by athletes include the risk of injury presented by less than optimal playing conditions. Voluntary participants in sporting activities are deemed to have assumed the commonly appreciated risks inherent in the activity. That includes the risk of being struck by a line drive during batting practice. The presence of protective screening was irrelevant: the appellate court held that Bukowski's assumption of risk extended to risks that are engendered by less than optimal playing conditions, so long as those conditions are open and obvious and readily appreciable.
The two dissenting justices did not agree: they held that a participant does not assume the risk of injury presented by concealed or unreasonably increased risks beyond those inherent in the sport. The plaintiff offered "ample evidence," in their view, from which a jury could conclude that the risk of injury was unreasonably increased and that, commensurate with that finding, that the defendants owed a duty to protect him from those risks.
Because the appellate court was divided 3-2, New York's Court of Appeals may agree to hear the case. If the appeals court does so, Bukowski may get to make his legal pitch a second time.