Kozera v. Town of Hamburg
| Decision Date | 02 November 1972 |
| Citation | 337 N.Y.S.2d 761,40 A.D.2d 934 |
| Parties | Stanley C. KOZERA, Respondent, v. TOWN OF HAMBURG, New York, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Cox, Barrell, Wash, & McFarland (Thomas Roberts), Buffalo, for appellant.
McDonough, Boasberg, McDonough & Beltz (Robert Kaiser), Buffalo, for respondent.
Before GOLDMAN, P.J., and DEL VECCHIO, MARSH, MOULE and CARDAMONE, JJ.
The plaintiff was injured on June 9, 1970 when he was hit in the right eye by a foul ball during 'batting practice' preceding a Little League baseball game. The game was being played at the Sagamore Street Playground which had been constructed by and was under the control of the defendant, Town of Hamburg. Mr. Kozera was attending the game with his son who was a player-participant. He was seated on the players' bench about ten feet outside the third base foul line and running parallel with it. At the time of his arrival, one of the teams was taking 'batting practice.' The pitcher was standing about halfway between the pitcher's mound and home plate, and the batter was behind home plate three or four feet in front of the backstop screen. During the ten minutes plaintiff occupied his seat on the third-base bench, a batted ball was hit outside the third-base line causing plaintiff and the others on the bench to 'duck' in order to avoid being struck. Shortly thereafter while plaintiff remained seated watching the team coach seated to his left filling out the 'lineup' card for that evening's game, plaintiff was struck in the right eye by a foul ball causing him injuries. In his complaint against defendant Town he alleges that defendant was negligent in constructing, operating and maintaining the baseball diamond and that there were inadequate facilities and equipment to provide protection for spectators at the Sagamore Street Playground and that there was improper supervision of the playing of baseball at the Playground. The defendant moved for summary judgment. Special Term denied the motion, noting that plaintiff as a spectator assumed the risks attendant upon watching the game, but concluded that there were triable fact issues with respect to maintenance and supervision of the playground area. We believe that latter determination was error. As a matter of law a spectator assumes the risks necessarily incident to the baseball game so long as those risks are not unduly enhanced by the owner of the ballpark (Ingersoll v. Onondaga Hockey...
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