SCHAFFER v. New York, #2000-004-001, Claim No. 96888
Slip and fall during college gym class coed softball game - alleged negligence
a) improper field, b) improper foot gear. Claim dismissed after trial.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
JEROME F. HANIFIN
MELVIN B. BERFOND, ESQ.BY: Michael Konopka, Esq., of counsel
HON. ELIOT SPITZER
BY: Earl F. Gialanella,
Assistant Attorney General, of counsel
See also (multicaptioned
The trial of this Claim was bifurcated by Order of the Court. This Decision
issue of liability.
The filed Claim alleges, in pertinent part:
4. That the accident occurred on or about June 5, 1997 at approximately 9:00
a.m. on the baseball field located behind the West Gym, on the campus of the
State University of New York Binghamton at or around the infield diamond near
the basepath [sic] between home plate and first base.
5. At the aforesaid time and place the Claimant was lawfully attending the
State University of New York at Binghamton and in the course of school
activities participating in a baseball game.
6. That during the course of said baseball game, the Claimant was caused to
slip and fall, sustaining injuries as more particularly set forth hereinafter;
that the coach/teacher, Mr. Sinicki, negligently moved the bases from a
regulation sanded basepath [sic] to a grass basepath [sic] on the
same field, and instructed and directed that Claimant and other students run the
basepath [sic] in an area not specifically intended for use as a baseball
basepath [sic]. That Claimant was caused to slip and fall when he
attempted to round first base which was located in a slippery grassy area.
8. This claim is for damages suffered by Claimant by reason of the negligence
of the State of New York...in failing to supervise the person under its charge;
in failing to adequately and properly supervise the person under its charge; in
failing to properly train its personnel; in failing to instruct the person under
its charge; in failing to follow proper procedures; in creating a dangerous and
defective condition; in causing the Claimant to slip and fall; in not properly
conducting a University class activity; in negligently moving the bases of the
baseball field to an area not intended for said use; in employing the baseball
field in a manner other than its intended use; in not properly inspecting the
baseball field; in allowing the claimant and those under its charge to engage in
a dangerous activity.
7. [sic] A notice of intention to file this claim was filed in the New
York State Attorney General's office, 120 Broadway, New York, New York on August
27, 1997, within 90 days of the occurrence.
The reference to the State University of New York at Binghamton is a reference
to Binghamton University.
The accident which gives rise to this Claim occurred during a regularly
scheduled gymnasium (gym) class which was being conducted by a Binghamton
University teacher named Sinicki.
Claimant was born on October 24, 1977 and on the date of the accident he was 19
Claimant testified that the gym classes first met around the end of May and
commenced at 8:00 a.m. The gym class participants would change into their gym
outfits in locker rooms and there would be a 10 to 15 minute period of
instruction, after which teams would be selected, and a softball
played. Claimant estimated that there were approximately 20 students in the
class and he believed that "there were a few people that knew what they were
doing, that had experience, that knew how to play the game and there were a
handful of people who, in my opinion, never played in their lives before".
Claimant testified that, initially, the softball games were held on a
"recreational field", also described at the trial as a multi-purpose field,
located on the Binghamton University Campus. Claimant described the
recreational field as "simply a big open area of grass, with pretty much no
boundary, just a wide open space". Asked how Sinicki would "set it up",
referring to the field, Claimant responded that Sinicki would walk around and
"place the bases, I don't recall if he used a tape measure or if he walked them
off, but he approximated the bases at 60 feet and he placed them accordingly to
where they should be". Claimant recalled that, as the season progressed, the
procedure followed was similar, "the only difference being there was less
instruction and more actual playing of game". Claimant recalled that the grass
on the recreational field was "high" and "wet" right from the beginning and
that, during the time that the recreational field was used to play the softball
games, he did not observe that the grass was cut at any time.
Claimant testified that when the players arrived at the recreational field on
June 5, 1997, "Sinicki made a comment that the grass was very high and he didn't
think we should play there on that particular day". As a result, the Court
finds that the gym class was moved to the men's baseball
Claimant recalled that, prior to the commencement of the softball game on the
baseball field, Sinicki "proceeded to mark off the bases at 60 feet, like he did
at the other field, using red, rubber bases". Asked what the infield of the
varsity baseball field was "composed of", Claimant responded, "it's a dirt
surface". Asked "the base paths are dirt, correct?" Claimant responded, "Yes
they are", adding, "there is grass on some parts of
Claimant initially testified that the
first and second bases were placed on dirt. He later testified that the path
from first base to second base and from second base to third base was on grass.
Later, when asked to describe the surface he was running on as he "traveled from
home plate to first base" Claimant responded "It was a hard dirt surface".
Asked if Sinicki "moved in" the bases, Claimant responded, "Yes". Asked if that
distance was approximately 30 feet, he responded, "Yes".
Claimant recalled that he was playing in the infield, but he could not recall
what position. Claimant came to bat, he believed either in the bottom of the
first or second inning. Asked to describe what happened, Claimant testified, "I
hit a line drive base hit to left field". He recalled that he proceeded "to run
to first base and I rounded first base". Asked what he meant, he testified, "I
hit the corner of the base with my right foot" adding, "I touched it". Asked
what happened then, he testified, "I took approximately five steps towards
second base, watching the play". That is, he observed the left fielder "handle
the ball and he was proceeding to throw the ball in to the second baseman".
Asked what he did when he saw this occur, Claimant testified, "I stopped
running. I pivoted to go back to first base and when I pushed off, my left foot
slipped and my right foot buckled underneath me and snapped". Asked, "When you
pushed off to return back to...first base...was it solid, was it slippery or was
it something else?" Claimant responded, "It was slippery". Asked if, prior to
getting his hit, if he realized "that there would be a difference between the
conditions, the running conditions between home base and first base, as opposed
to first base and second base", Claimant responded, "Not at that time, no".
Asked, "What exactly occurred?" Claimant testified, "I stopped, I pivoted where
my body turned and I was now facing first base and as I took my first step
towards first base, I slipped". According to Claimant he took the first step to
return to first base on his left foot and that as he did so, it "Just slipped
and just flew out".
On cross, Claimant testified that during 1996 and 1997 he played intramural
softball for his fraternity team at Binghamton University, all on recreational
fields that were not actually softball or baseball fields. Claimant also
testified that baseball was his "favorite sport" and that he had played little
league baseball for 10 to 12 years, playing in some tournaments. According to
Claimant he played "every single position".
On cross, Claimant was asked if, before he signed up to take the softball gym
class in May, he knew "that during the morning hours...focus it to upstate New
York...that grass can become wet because of dew?" and he responded, "No".
Asked, "When you were warming up, was the grass wet at all?" Claimant responded,
"Yes, it was". Of course, he had previously testified on direct that the
recreational field was "wet". (
, p 4)
Claimant agreed that on the first day of the class the students were given the
option to wear cleats and that he elected not to wear cleats. Further on cross
Claimant agreed that when he ran from home base to first base he was jogging and
that when he touched first base he was still jogging, because he knew he had hit
a single to the outfield. However, on redirect, Claimant testified that he
observed the left fielder throw the ball to the second baseman and ""at that
point, I realized my only option would be to be held to a single, so I turned to
Also on re-direct, Claimant testified that he did not own a pair of cleats at
the time of his accident and that, if they had been required, he would have
purchased a pair and worn them during the gym class sessions.
Sinicki testified that he was the varsity baseball coach at Binghamton
University and had begun to teach physical education classes, in 1994 or 1995.
He had played baseball in little league, high school and college, and, according
to him, he had been drafted by the Pittsburgh Pirates. Asked how he got
involved in the subject softball gym class in May of 1997, Sinicki testified
that he had been approached by the director of the physical education program to
conduct a class and he "thought it was a good opportunity for me, to teach a
softball class". Asked about "footwear", Sinicki testified "I just told them
it was an option, that if they had cleats, that they could use those, it was not
mandated". Asked why cleats were not mandated, he testified that a pair could
cost anywhere from $40 to $60 and "in my book to a college kid can be
expensive". He was of the view that after his class ended "they would be
probably gone right in the trash can because they would never have used them
again". Asked about the events of June 5, 1997, Sinicki testified that he
noticed that the grass at the recreation field was "high" and that since he was
aware of the condition of the varsity baseball field, he took the players to
Sinicki testified that the gym class was a co-ed class, that he did all of the
pitching for both teams and that he was not wearing cleats on the date of the
accident. However, he testified that he did not permit students who made the
varsity baseball team, which he coached, to play or to practice without
On cross, Sinicki was asked, "A transition...on surfaces, generally speaking,
is not part of the game for a base runner, if the bases are run properly are
they?" and he responded,
No, that's incorrect. It is part of the game. You cannot in a base hit, albeit
a single, double, triple, home run, you cannot round the bases without not going
from grass to dirt. You cannot score a run necessarily without going on the
grass either when you're rounding third base. Again, you cannot run in 90
degree angles, you have to round the base and therefore it puts you onto the
Asked, "Someone who is running fast is more likely to go
into that area, the grassy area than someone who is running slowly?" and he
responded, "Not necessarily, no. A proper technique would be to run in the
grass area so I can't say it's determined by the runner's speed or not. The
proper technique you would".
Asked on re-direct why he required his varsity baseball players to wear cleats
"as opposed to students in this co-ed activities class?" Sinicki responded,
Well, I required the players to wear their cleats for safety concerns obviously,
the game is played at a much more competitive pace, it allows high performance a
little bit better, you know, giving them proper traction as they are running the
bases...I did not require that...of the baseball players until they make the
team, for the same reason I didn't do it for the class. If you're trying out
for the baseball team I do not require that you have those cleats because if you
don't make the team it's a waste of money, in my estimation.
Claimant's expert witness testified via videotape. The tape is in evidence as
Claimant's Exhibit 2. The expert, Cosgrove, has a Bachelor of Science Degree in
Physical Education and a Master's Degree in Recreation and Parks Administration.
He has many years of experience managing various parks on Long Island.
Cosgrove's report is in evidence as Claimant's Exhibit 4. Two sketches prepared
and discussed during his video testimony are in evidence as well. A sketch of a
"BASEBALL FIELD MODIFIED FOR SOFTBALL CLASS" marked as Claimant's Exhibit 3 at
the deposition is in evidence as Claimant's Exhibit 5. A sketch identified as
"REGULATION SOFTBALL FIELD", marked as Exhibit 4 during the video testimony is
in evidence as Claimant's Exhibit 6.
In his report (Cl. Ex. 4) Cosgrove reached the following conclusions. He noted
that Sinicki "did have the option to remain at the original location, or to
request the use of the regulation softball field". Since Sinicki did not
exercise these options, Cosgrove was of the view that, (1) by moving the
softball class to the varsity baseball field, Sinicki
was required to modify the field from its intended proper use...clearly an
incompatible use of the baseball field, as well as a sharp deviation from the
standard design of a softball field....The incomparability [sic] of the
sand/clay base path and the grass base line area created a transitional problem,
i.e., running from a stable sand/clay surface which is the right surface for a
base path, onto a wet grass area, which is an improper base path surface
(2) Sinicki was aware there was a regulation softball field
at the Binghamton University campus and that Sinicki "should have sought to use
this field if it was available. It is our further opinion that all softball
classes should be conducted on this field...regardless of whether it is a
softball class or for intercollegiate competition"; (3) and that softball shoes
with "rubber molded cleats" are "very reasonably priced". Thus it was his
opinion that the softball class students should have been "required
use the right shoes" and that had Claimant "been using cleats, even under the
improper conditions of this case, his foot traction would have been improved,
reducing or eliminating the slipping accident that caused his
During the course of his video deposition, Cosgrove made the following points.
He thought Sinicki had "declared himself pitcher for the class" in order to "get
the ball over the plate more consistently". Asked what he meant by "a
transitional problem" in his report, Cosgrove responded, "After Claimant hit the
ball into the outfield, he ran to first base on a skin surface and made a turn
from clay to grass" noting that it was during the morning and there was "dew" on
the grass. Cosgrove opined that wearing sneakers "should not be an option".
Asked about the softball field, Cosgrove testified "a typical softball field
today is a skin field which means that there is no infield grass, however there
are fields that are used in combination with little league play and you will
find softball played on certain fields that would have infield grass as well,
but basically a regulation softball field would be skin".
On cross-examination, Cosgrove was asked about foot wear and whether there were
regulations with regard thereto. He responded that a given type of footwear was
not "mandated", but rather was recommended. He also agreed on cross-examination
that if players wanted to wear sneakers in a softball game they could and that
there were no regulations that prevented the use of sneakers. He was unaware of
any requirement that a high school softball team was required to wear cleats and
he was unaware of any regulations or guidelines that required cleats in a
college softball game.
With regard to the subject softball game, Cosgrove did not know whether anyone
was keeping score. With regard to the gym class program, he did not know
whether records were kept with regard to wins and losses. Asked on
cross-examination if Claimant's "transition" from the base path to grass caused
his fall, Cosgrove responded that it "contributed" to it. (2:11) Asked if
Claimant's accident was caused by a transition from dirt to grass or just the
wet grass, he responded, it was a "combination of both...if this was a softball
field and he continued his movement around first base he would have been on the
same surface" noting that, on an all skin softball field, Claimant would have
stayed on a "stable compacted" surface, but that when he went through the
transition from a skin surface to grass that "appeared to be wet", this was a
As noted (
, p 8) Claimant's Exhibit 6 is a sketch of a regulation softball
field prepared by Cosgrove and referred to during the course of his videotape
deposition. The exhibit shows a softball diamond and we find thereon "ALL
SKINNED INFIELD". Asked at the trial what this meant, Cosgrove testified that
there was no infield grass "but you will find softball played on certain fields
that would have infield grass". Claimant's Exhibit 5 (see supra
, p 8),
the sketch prepared by Cosgrove to illustrate a baseball field modified for
softball, accurately reflects, the Court finds, the necessary modifications.
In other words, the first and third bases are illustrated as being approximately
60 feet from home plate as opposed to 90 feet, the normal distance from home to
these plates on a baseball field. On this sketch, Cosgrove correctly
illustrated the reduced size softball field, superimposed on the baseball field.
The sketch clearly shows what must have physically occurred, that is all of the
softball base paths were on turf or grass. In other words, the baseball base
paths, which were skinned (see
, St. Ex. B and C), would have been to the
outside of the reduced sized softball diamond.
This Claim must be dismissed.
First, there was no transition problem. Although Cosgrove testified that
Claimant ran to first base on a skin surface and made a turn from the skin
surface to grass, that almost certainly did not happen. At least it did not
happen in any relevant sense. It is possible that when Claimant ran to first
base on grass he may have bellied to his right in rounding first base, before
taking the five steps towards second base, thereby running onto the skinned
baseball path before he reached first base. The Court considers this highly
unlikely, however, because Claimant jogged to first base. In any event, even if
Claimant's route involved a transition between grass to a skinned surface, as
Claimant ran from home to first, there was no such transition where his mishap
occurred, i.e., after he touched first base on grass and started towards second
base on the grass.
Second, although Cosgrove thought that softball cleats should have been
required, he knew of no actual regulation or guideline that required them and,
indeed, recognized that softball cleats were frequently not used though
"recommended". From the very nature of this gym class, the Court finds that
requiring softball cleats would have been absurd. The conclusion is inescapable
that the level of intensity of the softball game which was underway at the time
the Claimant was injured was dictated by the skills of the participants.
According to Claimant, some of the participants had no experience at all, prior
to beginning the softball class, and some of those participants were female.
The competitive level of the softball game can be further judged by the fact
that Sinicki did all the pitching and that Claimant, an experienced baseball and
softball player, jogged from home plate to first base after getting a hit.
Obviously, had he had any intention at all of trying to run to second, he would
not have jogged to first.
Third, Claimant, having played baseball for better than a decade and softball a
number of years in an intramural league, knew about as well as anyone the risks,
if any, of playing softball in sneakers, as opposed to cleats. Since Claimant
testified that he did not have cleats, it is safe to infer that he played
intramural softball at Binghamton University during the two prior years in
sneakers, and on the grass recreational field to boot. Under the circumstances,
the fact that he would wear sneakers during a gym class softball game, which
would necessarily be at a reduced level of intensity as compared to the
fraternity intramural softball games (which the Court infers involved all male
players), was understandable and made sense.
Fourth, Claimant clearly knew the grass was wet, not simply because he
previously found the recreational field wet and not simply because he found the
baseball field wet as he warmed up, but also from his many years of experience
playing baseball and softball.
Virtually all sporting activities involve some risk of injury and softball,
even co-ed softball, is no exception. It is difficult to understand how
Claimant sustained an injury to his leg when he changed his direction while he
was jogging, but the reason that he did sustain the injury had nothing to do
with the violation of duty owed to him by the State.
The Claim is dismissed.
May 9, 2000
HON. JEROME F. HANIFIN
Judge of the Court of Claims
The Claim, verified by Claimant, is in error when it makes repeated references
to a baseball game. The game actually played was softball.
Unless otherwise indicated, all quotations are from the Court's trial notes or
from the trial electronic recording cassettes.
Claimant's Exhibit 1 is a map of the Binghamton University Campus upon which
Claimant numbered various landmarks at the trial. Number one is the East Gym,
number two is the girl's softball field, number three is the West Gym, number
four is the multi-purpose recreational field and number five is the men's
State Exhibits B and C are photographs of the men's varsity baseball field,
which clearly show dirt base paths and a grass infield, apparently of normal