New York State Court of Claims

New York State Court of Claims

CROSS v.THE STATE OF NEW YORK, #2000-013-511, Claim No. 95789


Claimant, an inmate, collided with another inmate and broke his right tibia while playing basketball in the gymnasium at Cape Vincent Correctional Facility. He claimed that the accident occurred because his opponent lost his balance on a wet spot on the gym floor and that Defendant was negligent in letting inmates track snow across the floor. The Court concluded that Defendant's winter boot policy prevented snow from being tracked into the gym and that Claimant's accident was caused by the commonly appreciated risks of basketball which Claimant assumed. Claim dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 12, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On December 11, 1994, Frank Cross suffered a broken right tibia while playing basketball at Cape Vincent Correctional Facility (Cape Vincent). He says that an opposing player who was guarding him slipped on a wet spot and collided with him breaking Claimant's right tibia. In this timely-filed claim, he alleges that the injury was caused by Defendant's negligence in letting inmates track wet, snow-sodden boots across the basketball court floor. A trial of this matter, limited to the issue of liability, took place on April 10, 2000 in Syracuse.

Claimant testified that a snow storm was in progress when he left to go to the gym to participate in a basketball tournament. When he and others arrived at the gymnasium, they were permitted to cross the gym floor in their snow-covered boots so that they could sit in the bleachers while they changed into sneakers. At some point after the game began, play was suspended to let spectators and inmates who were using other parts of the gym complex return to their dorms and to let other inmates enter the gym. The arriving inmates, who were permitted to walk across the gym floor without first removing their boots, tracked more snow onto the playing surface. The incident occurred after this "go back" had been completed.

Claimant testified that he was driving toward the basket when he saw his opponent start to slip and fall. He tried to avoid a collision with the inmate, but was unable to stop due to his own forward motion. He felt the impact of his opponent's body and heard a loud cracking sound. He fell to the floor in intense pain. He did not observe the floor's condition as he lay on it; nor did he see what caused the other man to lose his balance. He surmised, however, that there was water on the floor and that the water had been responsible.

Claimant was certain that the water on the surface of the gym floor came from snow from the inmates' boots. He did not see any water leaking from the ceiling It should also be noted that in the Report of Injury to Inmate, he did not mention that water on the floor played a role in his opponent's fall or his own injury (Defendant's Exhibit C).

Mr. Steven Langhorne was also an inmate at Cape Vincent. He testified that he was the coach of Claimant's basketball team and witnessed Claimant's injury. He described Claimant as leaving his feet for a jump shot and colliding with another player who had lost his footing and was in the process of falling. He stated that he went toward the area where Claimant had landed and observed that Claimant's right leg was at an awkward angle and that Claimant appeared to be in pain. He saw what he described as a "puddle" where Claimant and the other inmate fell. He acknowledged that he did not notice the water on the floor prior to the accident. He also said he observed an inmate porter mop up the area after the fall.

Mr. Langhorne's testimony was at odds with Claimant's in several respects. He testified that the water which caused the opposing player to slip came from a leak in the ceiling and not from the boots of inmates. According to Mr. Langhorne, this was not the first time that he had seen players fall as a consequence of water collecting on the floor from the leaking roof. The leak had been there a long time and was so bad that a pail or waste basket was often placed on the floor to catch the water. In the past, he had seen a pail placed in the area where Claimant fell, but not on the day of this occurrence.

Mr. Langhorne flatly denied that wet inmate boots contributed to the puddle he saw on the gym floor. There was a policy during the late fall and winter months that persons using the gym had to change into sneakers when they entered the building (Defendant's Exhibit D). Once the boots were removed, they were stored in an area adjacent to the lobby. The inmates checking their boots were given metal tags to use to retrieve their boots when they wanted to return to their dorms. Mr. Langhorne recalled that the policy was in effect on the day of the accident and was being enforced.

Claimant then rested and Defendant moved to strike portions of the testimony of Mr. Langhorne on the basis that there was no allegation in the claim or bill of particulars that the water on the floor had dripped from a leaking roof. Defendant also moved to dismiss the claim on the Claimant's failure to prove a
prima facie case of negligence against the State. I reserved decision on both motions.
State Correction Officer John Stage testified that he was on duty in the gym on the day of the accident. He recalled that Claimant was not involved in a league game. Rather, he was involved in a pickup basketball game which was being played on a court that ran the width of the gym. He observed that Claimant was playing aggressively and was, in essence, hogging the ball. After Claimant attempted to go above his opponent to execute a shot, he came down at an angle onto the other inmate and the two fell to the floor. Officer Stage heard what he described as a "pop" and saw Claimant on the floor in pain. He and a civilian recreation aide named Plumpton immediately went to see if they could be of assistance to Claimant. He did not see any water on the floor from any source. He stayed with Claimant while a stretcher was retrieved and ultimately escorted him to the infirmary.

Officer Stage testified that in December 1994 there was a strictly enforced policy that required inmates to carry their sneakers to the gym and to change out of their boots in the entrance hallway or foyer before entering the gym. If they failed to bring their sneakers, they were not permitted to enter the gym. This policy also applied to spectators and was being followed on the day of Claimant's accident.

Mr. Marcus Plumpton, a civilian recreation aide, testified that he was on duty on the day of the accident. Like Officer Stage, Mr. Plumpton recalled that Claimant was playing in a non-league game. Mr. Plumpton observed Claimant jump into the air to attempt a shot. On the way down, Claimant came into contact with another inmate, who was guarding him, and crashed to the floor. When he went to the assistance of Claimant, Mr. Plumpton did not see any water or other moisture on the floor in the area where Claimant had landed. He further confirmed that the "no shoes" policy described by Officer Stage was in effect and being enforced on December 11, 1994. He denied that the roof was leaking and said that he did not observe any water pails or buckets in the gym.

Gary Dietterich, a recreation supervisor, testified that the gymnasium roof did not leak. As best as he could recall, there had been one work order regarding the roof in the early 1990's and there had never been a need to place pails or other receptacles on the floor to collect water from the ceiling.

Mr. Dietterich testified that he drafted the footwear policy, which prohibited the wearing of any footwear in the gymnasium other than gym shoes
. The purpose of the policy was to prevent damage to the floor that could result if the inmates tracked sand, dirt or other abrasive material into the gym. This policy was in effect from approximately November 15th or December 1st to March 31st of each year. On cross-examination, he acknowledged that during December of 1994, a period of prison crowding, there was insufficient room in the lobby storage area to accommodate all of the boots, so inmates were permitted to store their boots on the sides of the gym, in the bleachers or the weight room. They were never permitted to wear boots in the gym, however.
The standard of care that applies to the State in its capacity as a landowner is the same standard of care that applies to private landowners (
Miller v State of New York, 62 NY2d 506, 511; Preston v State of New York, 59 NY2d 997). It extends to State correctional facilities (see, Kandrach v State of New York, 188 AD2d 910; Tirado v State of New York, Ct Cl, Aug. 12, 1998 [Claim No. 96320], Bell, J.). The State must act as a reasonable person in maintaining its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk (Miller v State of New York, 62 NY2d 506, supra). However, the State is not an insurer of the safety of those who use its facilities (Tripoli v State of New York, 72 AD2d 823), and negligence cannot be presumed from the mere happening of an accident (see, Tortora v State of New York, 269 NY 167).
Participants in athletic activities, like Claimant, consent to "those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (
Morgan v State of New York, 90 NY2d 471, 484; Lamey v Foley, 188 AD2d 157, 162-164; Turcotte v Fell, 68 NY2d 432, 439). Nevertheless, the owner of a recreational facility may be held liable when, through its negligent acts or omissions, it creates a dangerous condition that poses hazards that are over and above the usual hazards that are inherent in the sport (see, Morgan v State of New York, supra, at 485, 488; [torn net separating indoor tennis courts]; Bauer v Board of Education of the City of New York, 285App Div 1148 [overcrowded basketball courts]; Greenburg v Peekskill City School Dist., 255 AD2d 487 [unpadded wall near basketball court]; Stackwick v YMCA of Greater Rochester, 242 AD2d 878 [same]; Eddy v Syracuse University, 78 AD2d 989 [glass doors in gym]). However, persons who are aware of such dangerous conditions and nevertheless participate in the athletic activity assume the risk of any injury resulting from them (Levinson v Incorporated Village of Bayville, 250 AD2d 819, lv denied 92 NY2d 810 [wet basketball court]; Capello v Village of Suffern, 232 AD2d 599 [dusty basketball court]; McKey v City of New York, 234 AD2d 114 [six-inch hole under basket]; Paone v County of Suffolk, 251 AD2d 563 [cracked and broken basketball court surface]).
Correction Officer Stage, Mr. Plumpton and Mr. Dietterich were more persuasive to me than Claimant or Mr. Langhorne. I find that Claimant's accident was caused by his aggressive play and his collision with an opposing player during a game of pickup basketball. I am not persuaded that there was water on the floor of the gym from any source in the area where Claimant was playing. Mr. Langhorne is the only witness who actually claimed to see the water on the floor. His testimony was not persuasive, as it was inconsistent with Claimant's testimony and with the testimony of each of the other witnesses. I am also not persuaded that the roof was leaking. I find that Defendant's sneakers-only policy was being enforced and that it prevented water and snow from being trod onto the basketball court from outside.

Since Claimant's injury arose exclusively out of the nature of the sport of basketball and the commonly appreciated risks of that sport, I conclude that he assumed the risk of his injury as a matter of law and that this accident was a "luckless accident arising from the vigorous voluntary participation in competitive... athletics" (
Benitez v New York City Board of Education, 73 NY2d 650, 659; Davis v Savona Central School Dist., 252 AD2d 958; Sykes v County of Erie, 94 NY2d 912). His claim is dismissed.
All motions not previously ruled upon are hereby denied.


September 12, 2000
Rochester, New York

Judge of the Court of Claims