O'Neill v. Daniels

— Order unanimously affirmed without costs. Memorandum: Plaintiff was injured when he was struck in the eye by a softball thrown by defendant, a teammate, during "warm-up” activities prior to an amateur softball game. Spe*1077cial Term granted defendant’s motion for summary judgment and dismissed the complaint. Plaintiff appeals, contending that the court erred in holding defendant not negligent as a matter of law on the ground that he (plaintiff) did not assume a known or foreseeable risk so as to relieve defendant of liability.

"Traditionally, the participant’s conduct was conveniently analyzed…