MUNIZ v. WARWICK SCHOOL DISTRICT

ORDERED that the order is affirmed, with costs.

The infant plaintiff Marc Muniz was voluntarily participating in a softball game during a physical education class at Warwick High School. He was the "on-deck" batter when he was struck in the head by a baseball bat that was released by a fellow student, the defendant Mitchell Jacobson, after hitting the ball. The defendant Warwick School District (hereinafter the District) subsequently moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that the infant plaintiff assumed the risk of injury by voluntarily participating in the softball game. The Supreme Court denied the motion. We affirm.

The District correctly contends that being struck in the head by a bat is a risk inherent in the sport of softball (see Morgan v. State of New York, 90 N.Y.2d 471; Checci v. Socorro, 169 A.D.2d 807; Marlowe v. Rush-Henrietta Cent. School Dist., 167 A.D.2d 820, affd 78 N.Y.2d 1096). However, after the District made out a prima facie case for summary judgment, the plaintiffs' expert and eyewitness affidavits raised questions of fact as to whether the risk of injury was unreasonably increased by the failure of the District's physical education teacher, who was supervising the game, to issue helmets to the players and to direct them regarding a safe place to stand on a field lacking fences, on-deck circles, or dugouts (see Stryker v. Jericho Union Free School Dist., 244 A.D.2d 330; Baker v. Briarcliff School Dist., 205 A.D.2d 652; Parisi v. Harpursville Cent. School Dist., 160 A.D.2d 1079).

SANTUCCI, J.P., FRIEDMANN, H. MILLER and SCHMIDT, JJ., concur.