Plaintiffs appeal from an order and judgment granting defendants’ motion for summary judgment dismissing their complaint.
Plaintiff Harold L. Dillard alleges in his complaint that he was contacted by defendant Lyncourt Little League, Inc., and requested to umpire for little league baseball games and that it was his understanding that he was to be supplied with adequate protective equipment. On May 22, 1970 he was requested to umpire a Lyncourt Little League game in which he was provided an umpire’s mask and chest protector but no shin guards or groin protectors. During the course of the game a ball thrown by a little league pitcher John Rotondo got by the catcher and rolled toward the backstop screen out of play. Plaintiff stepping back from his position as umpire called "time out” while the catcher retrieved the ball. While time was called and plaintiff was looking away from home plate, the pitcher threw another pitch in the direction of home plate which struck the plate, bounced upwards and struck plaintiff in the groin causing serious injuries. Plaintiff asserts negligence on behalf of Little League Baseball Incorporated and Lyncourt Little League for failure to provide him with the proper protective equipment. The negligence asserted against infant John Rotondo consists in his failure to heed the time out called by plaintiff and negligently pitching a ball while plaintiff’s attention was turned from the plate.
In an examination before trial plaintiff testified that he became associated with Lyncourt Little League in 1968 and that his son played in the league in 1969. Plaintiff acted as a coach in 1969 for the team that his son was on. The age group of the children was 10 or 11. During the 1969 season plaintiff coached defendant John Rotondo and instructed him that he was not to throw a ball after an umpire called time out, until the game was called back into play. On May 22, 1970, the date of the accident, Rotondo was nine years of age.
As a matter of law, plaintiff assumed the risk of the injury that he sustained by the pitch of the nine-year-old infant, John Rotondo, based upon the facts presented by plaintiff in his examination before trial and the allegations of his com
In dealing with a horseback riding injury, the court in Diderou v Pinecrest Dunes (
In Luftig v Steinhorn (
Awareness of the general scope of the risk combined with the skill and experience of the actor in question are primary factors influencing the determination whether the assumption of risk doctrine will be applied. Thus, in Arnold v Schmeiser (
Plaintiff coached little league two years before his injury. He must have been aware of the wild pitches and errant play of nine year olds. It cannot be said that it would be a total surprise for a nine year old to throw a pitch after the umpire had called time out and before the umpire had called a resumption of play. This kind of mistake, error, inadvertence or lack of attention is fully to be expected during the heat of a game from so young a player. Plaintiff assumed such a risk when he volunteered without pay to coach this little league baseball team.
Plaintiff’s argument that the defendants Little League Baseball Inc. and Lyncourt Little League, Inc. should be held liable for improperly instructing the nine-year-old defendant John Rotondo on proper safety precautions while pitching during a time out is specious in view of plaintiff’s testimony in his examination before trial that he personally, as a coach, had instructed Rotondo not to pitch until the umpire called the game back into play. Whatever merit such theory of liability might have, it has no .merit based on the facts in the instant case (cf. Darrow v West Genesee Cent. School Dist,
Plaintiff presented no evidence upon the summary judgment motion that it was the practice of little leagues to provide athletic supporters and protective cups to little league umpires. The affidavit of Frank Salanger, Recreational Director for the City of Syracuse, Department of Parks and Recreation, asserted that as an umpire for 22 years with little league he had never been provided a protective cup or an athletic supporter by the sponsoring league for which he acted as an umpire, although it was the custom for the sponsors to supply a face mask, a chest protector and shin guards.
The risk of being struck by a baseball in the groin while umpiring is reasonably foreseeable. With little expense plaintiff could have provided his own protection with a protective cup. Shin guards, face masks and chest protectors not being personal to one umpire, could be used by other umpires in the league while a protective cup could not be. Plaintiff, an active participant as umpire and, for some time, coach and instructor in little league baseball, assumed the risk inherent in playing a game with youthful and inexperienced participants without a protective cup.
Cardamons, Simons, Dillon and Witmer, JJ., concur.
Order and judgment unanimously affirmed, without costs.
