In 2009, a Bronx County jury awarded a 16 year old girl $2,750,000 for crush injuries to her face after a fellow student hit her with a bat during softball practice at Walton High School (shown below).

Now, in Navarro v. City of New York (1st. Dept. 2011), the entire suit has been tossed out. The appellate court held that the risk of being hit by a practice swing of a bat was assumed by plaintiff, an experienced softball player who admittedly knew the risks inherent in the sport.

We discussed this case shortly after the trial, here, and predicted that the case would be dismissed on appeal.

The city had also sought a reduction of the $2,750,000 pain and suffering award but that issue was rendered moot by the liability reversal. The parties did, though, brief the damages issue (since the court could have affirmed the liability award and then would have had to address the amount of damages).

Plaintiff cited Storms v. Vargas (2d Dept. 1998) [$4,000,000 for 31 year old with massive facial injuries]  in support of her argument that her $2,750,000 verdict should be affirmed. In that case, though, the injuries were much more severe than those sustained by Ms. Navarro. Not only did the 31 year old police officer Stephen Storms undergo 26 surgeries for his injuries but also his left eye was surgically removed and he was left with an artificial eye.

Inside Information:

• The jury had apportioned liability 75% to the city and 25% to the student who swung the bat and they found that plaintiff had not been comparatively negligent.

• The accident happened in June, plaintiff returned to school in September and she resumed playing softball two months later