New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2000-016-066, Claim No. 98100


Following Trial, pro se claim was dismissed. Claimant had alleged that he was injured when he slid into a base during an inmate softball game when base came out of hole dug to hold it and his leg went in hole.

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):

Alan C. Marin
Claimant's attorney:
Anthony Rodriguez
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
August 18, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)

Anthony Rodriguez brings this action for injuries sustained while participating in a softball game at the Sullivan Correctional Facility. The claim was tried at the Sullivan facility on June 22, 2000. Claimant testified in support of his action. On its case, defendant called to the stand Sullivan's recreation program leader, Michael Barnofsky, and correction officers Tim Saccone and Arthur Cash.

The claim alleges the injuries sustained by Rodriguez arose as a result of sliding into third base during an inmate softball game on May 27, 1997. According to the claimant, he was asked to run for another player who had reached first base. The claimant testified that as he slid into third base, the base itself came out and his foot went into the hole dug to keep the base in place. Claimant further testified that he heard a "cracking noise" as his leg went into the hole and felt pain in his leg.

According to the claimant, he then approached the correction officer on duty in the yard and asked to go to the hospital because "his leg hurt" to which the officer allegedly replied "walk it off" and "act like a man."[1]
Claimant later returned to his cell for the evening. The next morning, he proceeded to sick call where he was informed that it was likely a sprain, but he would have to wait a couple of days for an x-ray technician to come in as one was not available at the time. X-rays were taken the next afternoon and the doctor informed the claimant that his leg was broken. Claimant was subsequently sent to Albany Medical Center to be fitted with a cast.
With regard to the condition of the softball field at Sullivan Correctional Facility, the testimony offered by Barnofsky indicated that the field was in good condition. Barnofsky stated that the field was maintained on a daily basis by a six- to eight-man porter crew. The field maintenance included regular mowing, maintenance of the infield, lining the field, as well as routine inspections by Barnofsky. The Sullivan facility used break-away bases on the softball field as opposed to the immovable staked bases that are used in professional baseball (defendant's Exhibit C). Barnofsky further testified that the break-away bases used at Sullivan are approved by the American Softball Association and are for the purpose of reducing injuries from sliding.[2]

It is well established as a general proposition that "by engaging in a sport or recreational activity, a participant consents 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, 662 NYS2d 421 (1997). More specifically, sliding into bases is an "integral part of the game of softball." Totino v Nassau County Council of Boy Scouts of America, 213 AD2d 710, 711, 625 NYS2d 51, 52 (2d Dept 1995), lv denied 86 NY2d 708, 634 NYS2d 442 (1995).
Swan v Town of Grand Island, 234 AD2d 934, 652 NYS2d 166 (4th Dept 1996), the appellate court decided a case factually similar to the case at hand. The plaintiff in Swan sustained an injury while attempting to slide into third base during a softball game. An action in negligence was commenced against the owner of a softball field for negligently maintaining the softball field. The court noted that "[i]t is not necessary to the application of assumption of risk that the injured plaintiff foresee the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results." 234 AD2d at 935, 652 NYS2d at 168.
The fact that the base detached from its anchor when Rodriguez slid into third base does not implicate negligence.
Cf. Simmons v Smithtown Central School District, 707 NYS2d 646 (2d Dept 2000). In fact, as the recreation director testified, by coming out of place, the break-away base operated as intended. Rodriquez testified that the game on May 27, 1997 – which was not a game scheduled by Barnofsky -- was the first time he had ever played softball, although he was a member of the Tales From The Crypt inmate softball team (defendant's Exhibit A) and had watched games before. The circumstances – and the trial stage – make this matter distinguishable from a case like Taylor v Massapequa International Little League, 261 AD2d 396, 689 NYS2d 523 (2d Dept 1999) . In Taylor, the Second Department denied summary judgment to the defendant in a sliding injury suit: a 10-year old boy had never slid into a base, was part of a Little League team that had been told they would automatically be called "out" if they did not slide, and their coach had allegedly never instructed his charges on the proper way to slide. As far as any negligence with regard to the medical treatment claimant received, the claimant failed to meet the evidentiary burden necessary to succeed on such a claim.
Accordingly, the claim is dismissed in its entirety.


August 18, 2000
New York, New York

Judge of the Court of Claims

[1]Claimant could not recall the name of the correction officer on duty in the yard to whom he reported the injury.
[2]Break-away bases cut down on sliding injuries by allowing the base to detach from its anchor when a prescribed pressure is applied to the base, thus lessening the impact on the sliding individual's legs and ankles.