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A college freshman pitching batting practice for the Clarkson University baseball team assumes the risk of injury when he does so without a protective "L" screen net, even when directed to do so by the coaching staff. So says the Third Department in Bukowski v. Clarkson University.

Plaintiff, Shawn Bukowski, suffered injuries to his face when he was struck by a baseball batted back at him by a teammate during batting practice. The trial court dismissed the action at the conclusion of the evidence presented and did not allow the jury to render a verdict. The Third Department of the Appellate Division of the New York State Supreme Court affirmed the dismissal by a 3-2 margin. The majority cited the plaintiff’s testimony in refusing to overturn the decision.

During his jury trial testimony, plaintiff acknowledged that he was an experienced baseball player who was aware of the risk of being struck by a batted ball while pitching. Plaintiff testified that he had been playing baseball and pitching in various leagues for many years and that balls had been batted directly back at him 50 to 100 times throughout the course of his experience as a pitcher. In addition, plaintiff testified that he had extensive experience playing on fields of all different types, under a variety of conditions, which included different backdrops, pitching mounds and lighting. Plaintiff further acknowledged that he was familiar with the indoor training facility where the team practices were held and had regularly attended the practices in the facility a month before the incident. Plaintiff confirmed that he had been informed by his coaches that they intended to hold "live" practice without the use of a protective screen, known as an L-screen, in the indoor facility at least two weeks prior to the accident. He also testified that, both on the day before his accident and just prior to his turn on the pitching mound, he had observed other pitchers practicing "live" in the netted-off "batting cage" area without the use of an L-screen. After the close of proof, Supreme Court (Devine, J.) granted defendants’ motion to dismiss on the ground that plaintiff had assumed the obvious risk of being hit by a line drive.

The dissenting Justices disagreed and found that the plaintiff presented sufficient evidence for a jury to conclude that "the risk of injury incident to his participation in the indoor practice was unreasonably increased over the inherent risks of the sport and, commensurate with that finding, that defendants owed a duty to protect him from those risks."

The majority opinion suggests that a college baseball freshman is capable of simply refusing a coach’s directive that he practice in a certain manner. As a technical matter, any athlete can refuse the order of his or her coach. As a practical matter, even professional athletes with lucrative guaranteed contracts are hesitant to refuse a directive for fear of reduced playing time, being ostracized in the clubhouse, being traded or being cut from the roster of very limited spots. This theory of "inherent compulsion" was rejected by the majority.

Most 18 year old freshman are thrilled to make the team. To suggest that Mr. Bukowski assumed the risk of being smashed in the face with a line drive because he failed to instruct his coach to put up the protective screen is, respectfully, ludicrous.

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