Assumption of risk does not apply where softball coach hits team member in face with bat while demonstrating batting technique.

Assumption of the Risk is a defense that can often lead to the dismissal (or Summary Judgment) of a plaintiff’s otherwise serious baseball head or facial injury case. Assumption of the Risk, according to the Athletes Lawyer Doug Landau of Herndon, Virginia, is “the voluntary undertaking of a known and understood danger that results in injury.” In Virginia, if the injured plaintiff has assumed the risk of harm, she generally cannot recover for ANY of her injuries, no matter how serious or permanent.

In the case of Murphy v. Polytechnic U., 850 N.Y.S.2d 339 (N.Y. Sup. 2007), the New York Superior (trial) Court found that a school softball team member does not assume the risk where her coach hit her in the face with a bat during practice. Here, Murphy was a member of her university softball team. During practice, the team coach hit her in the face with a bat while demonstrating a batting technique. Murphy sued the coach and the university for the injuries she sustained and defendants moved for summary judgment, arguing that plaintiff assumed the risk.

Denying summary judgment, the court first reviewed the types of assumption of risk: primary, which acts as a complete bar to recovery by plaintiff, and implied, which allows for partial recovery based on plaintiff’s comparative fault. A person who participates in a sport assumes the known, apparent, or reasonably foreseeable consequences of participation, the court noted.

Case law holds that it is reasonably foreseeable to be hit by a ball or bat while playing baseball. The court said the issue here, however, is whether is it reasonably foreseeable that a coach with years of experience would swing without making sure that there is no one in range. This behavior is a concealed or unreasonably increased risk that plaintiff does not assume as a matter of law, the court held.