Court found no State liability for injury incurred in basketball game at a
Claimants seek damages for personal injuries and derivative loss allegedly
sustained when Luis Rodriguez fell and broke his foot while playing basketball
in a parking lot at Harriman State Park. The claim alleges negligence on behalf
of the State of New York in permitting the existence of an unsafe condition,
specifically a defect in the asphalt at the periphery of the parking lot.
Defendant argues that claimant
assumed the risk of injury by playing outdoor basketball court upon a court on
which the allegedly defective condition was open and obvious. A trial on the
issue of liability was held on May 22 and 23, 2000 and this decision addresses
solely the issue of liability.
The testimony and evidence adduced at trial established that in the late
afternoon of July 3, 1998, claimant and three friends were returning from a day
trip to Bear Mountain to their campsite at Beaver Pond Campgrounds in Harriman
State Park. A short distance from the campground, they saw a single basketball
pole and hoop at the periphery of a parking lot identified as Parking Lot #2.
Two young men were already on the court, so claimant and his friends decided to
join them for a three-on-three half court game. Claimant described himself as a
frequent and experienced basketball player. He acknowledged that particularly
in the summer, he played basketball on a daily basis, weather permitting.
However, he had never played basketball on Parking Lot #2.
Claimant parked his car in the parking lot about 50 feet in front of the pole
and walked directly to the court area. As he approached, he surveyed the area
briefly. Claimant described the day as sunny and the court area as unshaded and
level. Parking Lot #2 was surfaced in blacktop and gravel with some loose
stones and pebbles and, according to the testimony, was a little slippery.
Yellow lines were painted on the blacktop to designate parking spaces, but no
boundary lines delineated the court. The players agreed that the end of the
asphalt would be the out-of-bounds marker for under the basket, certain parking
space lines would be the side markers and nothing would mark out-of-bounds at
the end of the court opposite the basket. Claimant testified that in
determining the out-of-bounds markers, he looked "for a few
at the area under the basket. He further acknowledged that at various points
during the course of the game, the ball had gone out of bounds under the basket
and he had retrieved it and returned to the top of the key to inbound it.
Approximately 30 minutes after the game began, claimant went for a right hand
lay-up. When he came down, he landed on his right foot and fell to the ground.
Claimant testified that he looked at the spot where he had landed and observed,
for the first time, a "crack" in the asphalt at the edge of the parking lot
directly underneath the hoop. He stated that the crack was not readily
observable because it was "in the grass."
Jason Fuentes, a friend of claimant subpoenaed to testify on his behalf, was
present at the time of the accident. Like claimant, he characterized himself as
a frequent basketball player, but indicated he had never played in Parking Lot
#2. Fuentes testified that he checked out the court area "for a few seconds"
before the game and noticed a repaired pothole. He recalled looking under the
hoop when the group set the edge of the asphalt as the out-of-bounds marker in
that area and he acknowledged that he was in the area under the hoop several
times throughout the game when he retrieved the ball from the out-of-bounds area
and, in some instances, in-bounded it from the area near the pole.
Nevertheless, Fuentes testified that he never saw the defect prior to claimant's
fall. He stated that he did specifically see claimant land on the court, but he
inspected the area afterward and observed what he described as a crack filled
with rocks and blended in with the pavement.
Pedro Reyes, a longtime friend of claimant present at the time of the accident,
testified that he had been on the court at Parking Lot #2 approximately ten
times, most recently the previous year when he went to the court to shoot
baskets alone. He did not recall having seen any defects at that time or
noticing that his ball bounced erratically when it hit the ground under the
hoop. He testified that he "took a quick look" at the court when he arrived at
Parking Lot #2 on the date of the accident and he looked at the area under the
basket when fixing the edge of the asphalt as the out-of-bounds marker for that
area. He stated that the parties set the out-of-bounds line by the basket as
the edge of the pavement. He recounted that he observed claimant when he came
down from the lay-up and saw claimant's foot land flat and tilt sideways into
the crack. He testified that when the ball went out-of-bounds under the basket,
it would be in-bounded from the side or the top of the key. He acknowledged
that he retrieved the ball from out-of-bounds once or twice, but indicated he
never saw any defects.
Dennis Haight, an employee of the New York State Department of Parks,
Recreation and Historic Preservation, testified that at the time of the
accident, he was a Park Manager II assigned to an area encompassing the Lake
Welch Beach and Beaver Pond Campground in Harriman State Park and was familiar
with the site of the accident. He explained that Parking Lot #2, one of three
parking lots located in the Lake Welch Beach park area, was maintained by a
cleaning crew assigned to pick up trash, broken glass and other materials once
or twice a week. Although the crew did not have specific responsibility for
routine maintenance of the basketball hoops and poles, its members would notify
the park office if they recognized a problem. In addition, supervisors,
rangers and other park staffers would also inspect the surface area of the
parking lots during the week and report any condition in need of repair and
Haight himself inspected the parking lots and surrounding areas, including the
basketball courts, at least two or three times a week. According to Haight, as
many as 20 park employees routinely inspected the parking lots and surrounding
areas. At the time of claimants injury, no reports had been filed describing a
cracked or worn surface in the pavement of Parking Lot #2. Haight recalled that
upon reading the Patron Accident Report prepared in connection with the incident
(Cl's Exh 1), which stated that claimant "hit curb with foot," he drove by
within 15 or 20 feet of the site looking for a curb, but "didn't really notice
much of anything."
In addition to cross-examining the witness, defense counsel requested leeway to
elicit testimony on matters beyond the scope of claimant's direct examination.
The direct testimony focused primarily upon the general characteristics and
condition of the parking lot. Haight explained that the entire perimeter of the
asphalt and gravel surface of the parking lot was irregular by nature and when
driven over by vehicles, would "crack and fall away a little bit." He asserted
that an irregularity in the edge of the asphalt surface is not the type of
condition that would be reported by park staff.
At the close of proof, defendant asked the Court to entertain a motion to
dismiss based upon claimant's failure to make out a prima facie case, excluding,
for the purposes of the motion, the direct testimony elicited from Haight by
defense counsel. The Court reserved decision on the motion.
By voluntarily 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). Although participants
are not deemed to assume the risks of concealed or unreasonably increased risks,
a landowner need only "exercise care to make the conditions as safe as they
appear to be. If the risks of the activity are fully comprehended or perfectly
obvious, [the participant] has consented to them and defendant has performed its
[citing Turcotte v Fell
, 68 NY2d 432, 439; Prosser and
Keaton, Torts § 68, at 485-486 (5th ed.)]). Moreover, in assessing a
participant's awareness of the risk of an activity, the Court should take into
account the skill and experience of the participant (id.
In applying these principles,
appellate courts have uniformly held that the risks assumed by a voluntary
participant in sporting activity include "those associated with the construction
of the playing field and any open and obvious conditions upon it" (Levinson v
Incorporated Vil. Of Bayville
, 250 AD2d 819 [citations omitted], lv
92 NY2d 810; see also Maddox v City of New York
66 NY2d 270, 278; Swan v Town of Green Island
, 234 AD2d 934; Bailey v
Town of Oyster Bay
, 227 AD2d 427; Cevetillo v. Town of Mount
, 262 AD2d 517). The risks inherent in outdoor basketball, in
particular, include playing on an irregular surface (Sykes v County of
, 94 NY2d 912; Walner v City of New York
, 243 AD2d 629; Touti
v City of New York
, 233 AD2d 496), and upon courts with open and obvious
defects such as visible cracks and holes (see Paone v County of
, 251 AD2d 563; Brown v City of New York
, 251 AD2d 361;
McKey v City of New York
, 234 AD2d 114; cf. Greenburg v
Peekskill City School Dist.
, 255 AD2d 487; Clark v State of New York
Claim No. 82681, filed December 13, 1995, Ruderman, J., affd
The essential issue for the Court, then, is whether the condition complained of
was open and obvious and, therefore, not one for which the State owed a duty to
repair. Claimant argues that the defect was obscured in that it was not visible
as one approached the court area and was filled with dirt and grass and was
located in an area - directly under the basket - where a player would not be
looking down. The Court disagrees. The photographs admitted into evidence
reveal that the worn or broken area of the asphalt was plainly visible with the
common senses, and particularly so to a frequent basketball player with enough
experience to understand the import of at least a cursory review of the court
surface. That claimant's witnesses deny actually seeing the defect during the
30 minute game is unpersuasive and, in any event, does not mandate a contrary
conclusion (see Lozano v State of New York
, Claim No. 98597,
Motion No. M-59840, filed November 24, 1999, Lebous, J. [granting State's motion
for summary judgment dismissing the claim notwithstanding claimant's denial of
actual knowledge of the defect]). Based upon the proof adduced at trial, the
Court concludes that claimant failed to establish, by a preponderance of the
evidence, that defendant breached the duty of care owed to claimant. Inasmuch
as the condition complained of was "perfectly obvious," the parking lot was as
safe as it appeared to be and the State owed claimant no duty of care to make it
Accordingly, the Court now grants defendant's motion to dismiss the claim, upon
which the Court reserved decision at trial. The claim is DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.