Question of Fact Whether Softball Coach’s Having Infant Plaintiff Practice Sliding on Grass Increased the Inherent Risk of the Activity Precluded Summary Judgment

The Second Department determined the defendant school district did not demonstrate, in its motion for summary judgment, that the softball coach’s having infant plaintiff practice sliding on grass did not unreasonably increase the inherent risk of the activity. Therefore the school district’s motion was properly denied without any consideration of the opposing papers:

Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . This includes risks associated with the construction of the playing surface and any open and obvious condition on it … . Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … . ” [A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff'”… .

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case … . Here, the defendants failed to establish, prima facie, that the infant’s coach, by having her perform an infield sliding drill on the subject grass field, did not unreasonably increase the inherent risks of the activity … . Since the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law, the motion and cross motion were properly denied, and the Court need not determine the sufficiency of the plaintiff’s opposition papers … . Brown v Roosevelt Union Free School Dist., 2015 NY Slip Op 06204, 2nd Dept 7-22-15