Marlowe v. Rush-Henrietta Central School District

Order reversed on the law without costs, motion and cross motion granted. Memorandum: Plaintiff, a 17-year-old student at defendant school district, was participating in a baseball game when he was struck in the face and mouth by a baseball bat thrown by defendant Nesmith, a fellow student, after hitting the ball. The game occurred during a gym class voluntarily joined by plaintiff during his lunch break. The court erred in denying defendant Nesmith’s motion and defendant school district’s cross motion for summary judgment dismissing plaintiffs complaint. Plaintiff assumed the risk that a bat might be thrown accidentally and there is no allegation that Nesmith’s conduct was intentional or reckless (see, O’Bryan v O’Connor, 59 AD2d 219; see, e.g., Sutfin v Scheuer, 145 AD2d 946, affd 74 NY2d 697; O’Neill v Daniels, 135 AD2d 1076, lv denied 71 NY2d 802; see generally, Turcotte v Fell, 68 NY2d 432, 439). The school district breached no duty to protect plaintiff from “unassumed, concealed or unreasonably increased risks” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 658). All concur, except Dillon, P. J., and Lawton, J., who dissent and vote to affirm, in the following memorandum.