Primary Assumption of Risk Jury Charge Required Reversal.

The Second Department reversed the trial court’s dismissal of a personal injury complaint after a “no cause” verdict.  The plaintiff’s daughter was a 14-year-old pitcher on a school softball team.  During practice, she was instructed to pitch from a position closer to the plate than the pitching mound.  A so-called “L-screen,” a protective pitching screen, was used.  But the screen was not properly supported and kept falling down. At some point, the pitcher was instructed by the coach to keep pitching even though the screen was down.  The pitcher was then struck and injured by a “line drive” hit by the batter.  The trial court submitted the “primary assumption of risk” charge to the jury which states that a participant in a sport consents to the usual risks associated with the sport.  The Second Department ruled that whether to apply the primary assumption of risk theory is an issue of law for the court, not the jury, and therefore the jury should not have been instructed on it. There is a substantive discussion of the doctrine of primary assumption of risk and the reasons the doctrine did not apply to the facts of the case.  The Second Department went on to say that the evidence raised a question of fact about whether the pitcher impliedly assumed the risk of pitching in the absence of the screen.  Therefore, at the new trial, the jury should be instructed on the implied assumption of risk, as well as comparative negligence.  Weinberger v Solomon Schechter School of Westchester, 2010-05992, 2010-10382, Index No. 10087/08 Second Dept. 1-9-13