Assumption of the risk.

Plaintiff was at a baseball field to watch her son's team play a practice-game and was injured when she was struck by a bat being swung by a player on the off-field side of a chain-link fence running along the third-base line. The player, in effect, was in the on-deck circle.

The First Department applied the doctrine of primary assumption of risk and dismissed the complaint, in Roberts v. Boys & Girls Republic, Inc., which was decided on January 8, 2008.

According to the doctrine, a voluntary participant, spectator or bystander assumes those commonly appreciated risks which are inherent in the sport or activity and which follow from participation in it. A plaintiff also assumes risks attributable to any open and obvious condition of the place where the activity is taking place.

Under the doctrine, a defendant's duty is limited to exercising care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff will have effectively consented to them and the defendant will have performed its duty.

Here, the court said that a player's taking practice swings is an inherent part of the game, and that plaintiff assumed the risks entailed by her voluntary proximity to the game, including the risk of being hit by a swung bat. The court gave no effect to plaintiff's argument that she did not know anything about baseball, saying that she still should have appreciated the risk posed by a swung bat.

The court rejected plaintiff's claim that the hazard was somehow concealed or sprung upon her. The on-deck area was obviously and logically situated relative to the activity on the field; it was marked with equipment; and it was in virtually continuous use by players during the 90 minutes that plaintiff was at the field. Indeed, plaintiff testified that she saw numerous children in the area of the accident swinging bats when she arrived at the field, and again saw such activity from the bleachers as she watched her son's team practice.

Two justices dissented, at some length, saying that plaintiff's injury resulted not from a risk commonly associated with the game, but from a risk that was created as a direct result of defendant's permitting the use of this non-defined, non-designated on-deck circle off the field of play in an area open to the public where plaintiff had every right to be. They concluded that the assumption of risk doctrine does not preclude a recovery for negligent acts which unduly enhance such risks, and that is what they thought defendants did here.