O'Bryan v. O'Connor

CourtNew York Supreme Court Appellate Division
Citation59 A.D.2d 219,399 N.Y.S.2d 272
PartiesTheodore J. O'BRYAN, an infant, by Theodora O'Bryan, his parent, et al., Respondents, v. Dennis O'CONNOR, as infant, by Patrick O'Connor, his parent, et al., Defendants and Third-Party Plaintiffs-Appellants, National Little League of Albany, Inc., Third-Party Defendant-Respondent.
Decision Date03 November 1977

Carter, Conboy, Bardwell, Case & Blackmore, Albany (William P. Soronen, Jr., Albany, of counsel), for defendants and third-party plaintiffs-appellants.

Bruno & Sommers, Albany (George H. Barber, Albany, of counsel), for respondents.

Maynard, O'Connor & Smith, Albany (Roger J. Cusick, Albany, of counsel), for third-party defendant-respondent.

Before GREENBLOTT, J. P., and SWEENEY, KANE, MAHONEY and HERLIHY, JJ.

SWEENEY, Justice.

On August 1, 1972 at about 6:30 P.M. defendant and three other boys, without permission, entered Dalton Little League Field in Albany and began to play "home run derby". No supervisor or employee of the third-party defendant, the operator of Dalton Field, was present. Thereafter, the infant plaintiff, who was then 14 years of age, came upon the field and sat on a large steel drum located inside the fence some 25 feet from where the batter stood. After defendant swung at a pitched ball the bat flew out of his hands and struck plaintiff in the face. This negligence action was thereafter commenced against defendant who in turn served a third-party complaint on National Little League of Albany, Inc. (National). Special Term granted summary judgment dismissing the third-party complaint, but denied defendant's cross motion to dismiss plaintiffs' complaint. This appeal ensued.

Assuming arguendo that National owed a duty of reasonable supervision to plaintiff, we are of the view that Special Term must, nevertheless, be affirmed on the issue of National's liability since lack of supervision was not, as a matter of law, a proximate cause of the accident (Turano v. City of New York, 17 A.D.2d 191, 233 N.Y.S.2d 330).

We now direct our attention to Special Term's denial of the cross motion to dismiss the complaint. The record reveals that plaintiff had played one year of organized little league baseball prior to the accident in question and that he voluntarily chose to sit on a steel drum instead of in a more protected area. It is a well established principle of law that a spectator at a sporting event assumes the obvious and necessary risks...

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6 cases
  • Akins v. Glens Falls City School Dist.
    • United States
    • New York Court of Appeals Court of Appeals
    • 18 Junio 1981
    ...of risk has had extensive application in a number of cases involving spectators struck by misguided baseballs. (E. g., O'Bryan v. O'Connor, 59 A.D.2d 219, 399 N.Y.S.2d 272; Dillard v. Little League Baseball, 55 A.D.2d 477, 390 N.Y.S.2d 735; Kozera v. Town of Hamburg, 40 A.D.2d 934, 337 N.Y.......
  • Marlowe By Marlowe v. Rush-Henrietta Cent. School Dist.
    • United States
    • New York Supreme Court — Appellate Division
    • 16 Noviembre 1990
    ...a bat might be thrown accidentally and there is no allegation that Nesmith's conduct was intentional or reckless (see, O'Bryan v. O'Connor, 59 A.D.2d 219, 399 N.Y.S.2d 272; see, e.g., Sutfin v. Scheuer, 145 A.D.2d 946, 536 N.Y.S.2d 320, affd. 74 N.Y.2d 697, 543 N.Y.S.2d 379, 541 N.E.2d 408;......
  • Akins v. Glens Falls City School Dist.
    • United States
    • New York Supreme Court — Appellate Division
    • 26 Junio 1980
    ...N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352), and the defendant's motion for a dismissal should have been granted (O'Bryan v. O'Connor, 59 A.D.2d 219, 399 N.Y.S.2d 272; Kozera v. Town of Hamburg, 40 A.D.2d 934, 337 N.Y.S.2d 761). The facts being undisputed, the complaint should now be dis......
  • Sutfin v. Scheuer
    • United States
    • New York Supreme Court — Appellate Division
    • 23 Diciembre 1988
    ...v. Goshen Sunday Morning Softball League, 122 A.D.2d 769, 505 N.Y.S.2d 655, affg. 129 Misc.2d 401, 493 N.Y.S.2d 262 O'Bryan v. O'Connor, 59 A.D.2d 219, 399 N.Y.S.2d 272 Valk v. Estro, 47 A.D.2d 640, 363 N.Y.S.2d 664 Carrillo v. Kreckel, 43 A.D.2d 499, 352 N.Y.S.2d 730 see also, Beaver v. Ba......
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