A 14-year-old who voluntarily participated in junior varsity softball at her school is not barred under the theory of primary assumption of the risk from seeking damages for an injury she suffered when hit in the face by a line drive, an appellate court has ruled.
“The doctrine of primary assumption of risk is not applicable and does not operate to bar the plaintiff’s recovery. S., a high school freshman with limited pitching experience as a member of the School’s team, cannot be said to have assumed the risk of being hit in the face by a line drive while pitching behind a [protective screen], which, due to a defect, was not freestanding and had fallen down prior to the pitch that led to her injuries,” a unanimous panel of the Appellate Division, Second Department, ruled on Jan. 9 in Weinberger v. Solomon Schechter School of Westchester, 2010-05992.
