Renzulli Law Firm successful won a complete dismissal in Werner v. Pars & Strikes, a case previously pending in the New York Supreme Court, County of Richmond.  Our firm represented the defendant in the litigation.

This matter was commenced by Stephanie Werner, a teenager, and her mother against a recreational facility.  Among the many attractions at the recreational facility were a series of batting cages.  Plaintiffs alleged that Ms. Werner was struck in the eye by an errant ball from a pitching machine while she was utilizing one of the batting cages.  In support of their claims, Ms. Werner and her mother both testified that a green light attached to the pitching machine, which serves as a warning that a ball is about to be pitched, failed to illuminate. As a result of the alleged defect, Ms. Werner was hit in the eye from an unexpected pitch and suffered significant and permanent injuries to her right eye.

            As this matter involved an injury occurring during the use of a batting cage, we sought early on to establish the defense of volenti non fit injuria (“no injury is done to a person who consents”), commonly referred to as “assumption of risk.”  There are two distinct and separate assumption of risk doctrines which we determined may be applicable. The first defense falls under the “implied assumption of risk” doctrine and only allows for a diminution of award based upon the comparative fault of the plaintiff.  The second doctrine, called “primary assumption of risk,” however, serves as a complete bar to recovery by relieving the defendant of any duty of care towards plaintiff.  The doctrine provides that the defendant does not owe a duty to a voluntary participant in a recreational activity to prevent “commonly appreciated risks” that are inherent in, and arise out of, participation in the sport. Participants in sporting activities do not, however, assume concealed or unreasonably increased risks.  Moreover, a defendant may be liable if the conditions are “unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.”  Typically, claims involving a defective pitching machine are considered a “unique” condition which is over and above the risks commonly associated with the sport.  

In order to overcome plaintiffs’ defect claims, we conducted significant discovery, including a comprehensive inspection and evaluation of the pitching machine, attached light box, and the batting cages, and secured appropriate experts who supported our argument that the machine could not have malfunctioned as plaintiffs claimed.  At the conclusion of discovery, we filed a motion for summary judgment arguing, among other things, that plaintiffs’ claims regarding the defective lights were not properly established and that, despite those claims, Ms. Werner assumed the risk of being struck by the ball.  As expected, plaintiffs argued that the assumption of risk defense does not apply because the pitching machine malfunctioned and that Ms. Werner, a novice ball player, could not have assumed the risk of a defective pitching machine.

The Hon. Judith N. McMahon granted our motion for summary judgment and dismissed all claims against our client, Pars & Strikes of N.Y.  The Court held that plaintiffs failed to proffer sufficient evidence to defeat the argument advanced in our motion that  Ms. Werner assumed the risk of being struck by a pitch.

For additional materials regarding this litigation or to discuss procedures that you can implement to minimize lawsuits like this, please contact Christopher Renzulli or John V. Tait.