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
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
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
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) .
, 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
Accordingly, the claim is dismissed in its entirety.
LET JUDGMENT BE ENTERED ACCORDINGLY.