New York State Court of Claims

New York State Court of Claims

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.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has, sua sponte, amended the title of the Claim to delete a named defendant over which the Court has no direct jurisdiction.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
MELVIN B. BERFOND, ESQ.BY: Michael Konopka, Esq., of counsel
Defendant's attorney:
Attorney General
BY: Earl F. Gialanella,
Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this Claim was bifurcated by Order of the Court. This Decision addresses the

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 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 years old.

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 game[1]
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". [2]

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 field.[3]
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 it".[4] 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". (
see supra, 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 go back".

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 that field.

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 cleats.

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 grass.

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 to 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 accident"[sic].
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 "contributing factor".

As noted (
supra, 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
Binghamton, New York

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 baseball field
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 dimensions.