Court: Supreme Court, Appellate Division, First Department, New York

Case: Navarro v. City of New York

Date: Sept. 8, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens Bronx; Queens accident attorney)


Plaintiff high school student accidentally hit in the face with a softball bat by a teammate. Apparently, there was a momentary lapse in supervision.

The appeals court threw this case out based on our old friend, the doctrine of "assumption of the risk." What stinks here is that the New York City Department of Education, the defendant, waited until there was a trial verdict in favor of the accident victim to apply to have the case dismissed. A summary judgment motion would have come earlier in the case, been neat and tidy, and saved both sides the time and expense of a trial to a (successful and here overturned plaintiff's) verdict.

But due to budgetary constraints or lack of staffing or whatever, it's likely the Department of Education's attorneys (the office of the New York City Corporation Counsel) didn't look at the file seriously until the time of trial. So there was huge waste of judicial (and lawyer) resources. Maybe there should be a rule that such attacks on plaintiff's cases must be made early, or they can't be made at all. Or maybe the Department of Education should have to reimburse the court system for wasting its time.


Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered May 15, 2009, which denied defendant Department of Education's motion for judgment notwithstanding the verdict or a new trial, unanimously reversed, on the law, without costs, the motion for judgment notwithstanding the verdict granted, and the complaint dismissed. The Clerk is directed to enter judgment dismissing the complaint as against said defendant.

During an elective high school softball class, plaintiff, then 16 years old, hit ground balls to a fielder as a warmup exercise. A student named Johanny approached plaintiff and asked if she could hit a few balls. Plaintiff handed the bat to Johanny and told her, consistent with the teacher's instructions for practice drills, that she should not take full swings. Upon being handed the bat, however, Johanny immediately threw the ball in the air and took a full swing before plaintiff had time to get out of the way. As a result, the bat hit plaintiff on the cheek, causing injury.

Plaintiff subsequently commenced this personal injury action, which, after a jury trial, resulted in a verdict in her favor against defendant Department of Education. Defendant appeals from the denial of its motion for judgment notwithstanding the verdict or a new trial. We reverse and grant the motion for judgment notwithstanding the verdict.

Because the record establishes that plaintiff assumed the risk that resulted in her injury, defendant is entitled to judgment as a matter of law (see CPLR 4404[a] ). A participant in an athletic activity is deemed to have assumed "those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation_ (Morgan v. State of New York, 90 N.Y.2d 471, 484 [1997] ). In this regard, it is well established that -- the danger associated with people swinging bats ... while warming up for the game -- is inherent in the game of baseball" ( Roberts v. Boys & Girls Republic, Inc., 51 A.D.3d 246, 248 [2008], affd 10 N.Y.3d 889 [2008], quoting Napoli v. Mount Alvernia, Inc., 239 A.D.2d 325, 326 [1997]; see also Marlowe v. Rush-Henrietta Cent. School Dist., 167 A.D.2d 820 [1990], affd 78 N.Y.2d 1096 [1991] [baseball player assumed risk of bat being thrown] ). This principle has equal application to softball. Given that the risk of being hit by a practice swing of a bat has been held to be assumed even by a spectator "claim[ing] lacunae in her knowledge and experience of the game" (Roberts, 51 A.D.2d at 248, 380 N.Y.S.2d 1004) and by a child (Napoli, 239 A.D.2d at 326, 657 N.Y.S.2d 197), that risk was necessarily assumed by plaintiff, an experienced softball player who admittedly knew the risks inherent in the sport (see Kennedy v. Rockville Ctr. Union Free School Dist., 186 A.D.2d 110, 111 [1992] ). The record is devoid of evidence that plaintiff's injury resulted from any "unassumed, concealed or unreasonably increased risks" (Benitez v. New York Bd. of Educ., 73 N.Y.2d 650, 658 [1989] ) from which she should have been protected by her teacher. Inasmuch as plaintiff assumed the risk that resulted in her injury, "[r]ecovery may not ... be had on a theory of negligent supervision" (Roberts, 51 A.D.3d at 251, 850 N.Y.S.2d 38).

We note that the verdict cannot be sustained on a theory of negligent supervision for an additional and independent reason. Plaintiff testified that only three to five seconds elapsed between her giving the bat to Johanny and the bat's striking her face. "Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted." ( Esponda v. City of New York, 62 A.D.3d 458, 460 [2009], quoting Convey v. City of Rye School Dist., 271 A.D.2d 154, 160 [2000] ). Schools are not insurers of safety and cannot be held liable for every thoughtless or careless act by which one pupil may injure another. (Lizardo v. Board of Educ. of the City of New York, 77 A.D.3d 437, 438 [2010], quoting Mirand v. City of New York, 84 N.Y.2d 44, 49 [1994] ).