Dillard v. Little League Baseball Inc.

• Decision Date: 21 January 1977
• Citation: 390 N.Y.S.2d 735,55 A.D.2d 477
• Parties: Harold L. DILLARD and Dorothy L. Dillard, Appellants, v. LITTLE LEAGUE BASEBALL INCORPORATED et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 735

390 N.Y.S.2d 735

55 A.D.2d 477

Harold L. DILLARD and Dorothy L. Dillard, Appellants, v. LITTLE LEAGUE BASEBALL INCORPORATED et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

Jan. 21, 1977.

Lawler & Ferris, DeWitt (Robert Lawler, DeWitt, of counsel), for appellants.

Hancock, Estabrook, Ryan, Shove & Hust, Syracuse (John C. Cherundolo, Syracuse, of counsel), for respondents.

Before MARSH, P.J., and CARDAMONE, SIMONS, DILLON and WITMER, JJ.

MARSH, Presiding Justice:

Plaintiffs appeal from an order and judgment granting defendants' motion for summary judgment dismissing their complaint.

Plaintiff Harold L. Dillard alleges in his complaint that he was contacted by defendant Lyncourt Little League, Inc. and requested to umpire for Little League baseball games and that it was his understanding that he was to be supplied with adequate protective equipment. On May 22, 1970 he was requested to umpire a Lyncourt Little League game in which he was provided an umpire's mask and chest protector but no shin guards or groin protectors. During the course of the game a ball thrown by a Little League pitcher John Rotondo got by the catcher and rolled toward the backstop screen out of play. Plaintiff stepping back from his position as umpire called 'time out' while the catcher retrieved the ball. While time was called and plaintiff was looking away from home plate, the pitcher threw another pitch in the direction of home plate which struck the plate, bounced upwards and struck plaintiff in the groin causing serious injuries. Plaintiff asserts negligence on behalf of Little League Baseball Incorporated and Lyncourt Little League for failure to provide him with the proper protective equipment. The negligence asserted against infant John Rotondo consists in his failure to heed the time out called by plaintiff and negligently pitching a ball while plaintiff's attention was turned from the plate.

In an examination before trial plaintiff testified that he became associated with Lyncourt Little League in 1968 and that his son played in the league in 1969. Plaintiff acted as a coach in 1969 for the team that his son was on. The age group of the children was 10 or 11. During the 1969 season plaintiff coached defendant John Rotondo and instructed him that he was not to throw a ball after an umpire called time out, until the game was called back into play. On May 22, 1970, the date of the accident, Rotondo was nine years of age.

As a matter of law, plaintiff assumed the risk of the injury that he sustained by the pitch of the nine year old infant, John Rotondo, based upon the facts presented by plaintiff in his examination before trial and the allegations of his complaint In McGee v. Board of Educ. of City of N.Y., 16 A.D.2d 99, 226 N.Y.S.2d 329, plaintiff was injured in the course of a baseball practice routine while acting as a pitching coach. The head coach had asked plaintiff to help develop the pitching staff upon the high school baseball team because plaintiff, a teacher at the school, had considerable previous experience with baseball. While plaintiff was standing behind the pitcher, the coach at home plate was hitting bunts which were fielded by the pitcher or other members of the infield and thrown to first base. During the course of the practice a runner had advanced to second base, a bunt was hit to third base, the third baseman threw to first base, the runner on 'second' started to advance to 'third' and the head coach at home plate hollered to get the man at 'third'. The first baseman in throwing the ball to 'third' hit plaintiff in the head. Plaintiff at the time was attending to the pitcher and inattentive to the play at 'third'. The court held as a matter of law that plaintiff had assumed the risk of such a throw to third base.

'Generally, the participants in an athletic event are held to have assumed the risks of injury normally associated with the sport (citation of authorities). Players, coaches, managers, referees and others who, in one way or another, voluntarily participate must accept the risks to which their roles expose them. Of course, this is not to say that actionable negligence can never be committed on a playing field. Considering the skill of the players, the rules and nature of the particular game, and risks which normally attend it, a participant's conduct may amount to such careless disregard for the safety of others as to create risks not fairly assumed. But it is nevertheless true that what the scorekeeper may record as an 'error' is not the equivalent, in law, of negligence.' (McGee v. Board of Education, supra, pp. 101--102, 226 N.Y.S.2d pp. 331--332).

In dealing with a horseback riding injury, the court in Diderou v. Pinecrest Dunes, Inc., 34 A.D.2d 672, 310 N.Y.S.2d 572, affirmed the breadth of the doctrine.

'* * * As respects voluntary participation in a sport, the doctrine of assumption of risk applies to any facet of the activity inherent in it and to any open and obvious condition of the place where it is carried on * * * and imports a knowledge and awareness of the particular hazard that caused the injury * * *.' (Diderou v. Pinecrest Dunes, Inc., supra, p. 673, 310 N.Y.S.2d p. 573).

In Luftig v. Steinhorn, 21 A.D.2d 760, 250 N.Y.S.2d 354, affd. 16 N.Y.2d 568, 260 N.Y.S.2d 840, 208 N.E.2d 784, defendant operated a summer resort which had as part of its facility a baseball diamond. Plaintiff was injured while playing baseball in an attempt to catch a fly when he tripped in a hole and fell. Two of plaintiff's witnesses said that there were plain and visible holes all over the field. The court pointed out that since the holes were open and obvious, plainti...