New York State Court of Claims

New York State Court of Claims

PARKER v. STATE OF NEW YORK, #2000-018-004, Claim No. 96130


Claimant failed to meet his burden of proof that State had constructive or actual notice of dangerous condition. 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 for the State of New York
Assistant Attorney Generalof Counsel
Third-party defendant's attorney:

Signature date:
April 11, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, Dwayne Parker, seeks damages for an injury he sustained while playing flag football at Cape Vincent Correctional Facility (hereinafter "Cape Vincent"). Claimant alleges his foot became caught in a hole on the football field causing his ankle to break. The trial was bifurcated and this decision addresses liability only.

The following facts are undisputed. On October 16, 1994, at approximately 2:00 p.m., claimant was in the recreation yard at Cape Vincent where a league flag football game was commencing. He was participating for the first time at this facility. The weather conditions were clear and dry. Early in the game, perhaps on the first play, claimant broke his ankle. A correction officer, Craig McGraw, saw claimant on the ground, went to see what happened and claimant told him his ankle was broken. Correction Officer McGraw called for a wheelchair and claimant was transported to the infirmary.

The recreation yard at Cape Vincent consists of numerous facilities, including two softball/baseball fields. The right field and a small portion of center field of the "B" baseball field overlaps the football field. The location of claimant's fall was described as near midfield of the football field which is also the right field baseball field B.

Civilian employees are responsible for the recreational activities at Cape Vincent. They have the fields lined for league and tournament play and they are present during recreational activities. If minor repairs are needed to equipment, these employees will do the work.

At issue in this case is whether claimant's foot was caught in a hole on the football field causing his injury and, if so, whether the defendant had actual or constructive notice of this dangerous condition.

Claimant testified that on the first play of the game, while playing defense, he took one step back with his right foot. He fell to the right and his foot which was partially caught in a hole approximately six inches in diameter and six inches deep, did not move. A correction officer came to his aid and helped pull his foot out of the hole at which time he saw his foot dangling. He was transported to the infirmary.

Steven Langhorne testified on behalf of the claimant. Mr. Langhorne was the coach of claimant's football team and was present the day of the accident. When asked to describe the football field he said it was grass and dirt with "dirt piles."[1]
Mr. Langhorne described the hole in which claimant fell as about the size of the trash can in the courtroom, approximately eight inches wide, 16" long and 18" deep. Mr. Langhorne remembered claimant's accident occurring in the morning while claimant was on offense and running with the ball.
On the issue of notice, Mr. Langhorne testified that in May 1994, he witnessed another inmate, "Lane," fall into a hole when playing center field in a baseball game. The area where he fell was also part of the football field. Also, an inmate called "Joey" fell into a hole playing baseball in June 1994. Mr. Langhorne claims he spoke to the recreation civilians in June and November 1994 regarding the condition of the fields and was told, "It will be taken care of." He also testified that in June 1994 he called a coaches' meeting to complain about the condition of the fields, and the coaches informed a recreation aide about the very hole in which claimant fell, almost four months prior to claimant's accident.

The Court gives no weight to Mr. Langhorne's testimony due to the discrepancies between his statements and those of all the other witnesses, as well as his obvious exaggerations.

Correction Officer Craig McGraw testified on behalf of the defendant. He was in the yard when claimant was hurt and was the officer who spoke with claimant after the accident, while claimant was still on the ground. His report[2]
confirmed that Mr. Parker told him he broke his ankle and needed assistance. Correction Officer McGraw testified when he reached claimant, he had an opportunity to observe the ground nearby and there was no hole, depression or indentation on the field. He further testified that he plays outfield in an annual softball tournament on the same field and has never seen any hole in that area. On cross-examination, Officer McGraw was asked to read an excerpt from Exhibit 1, the yard log book, which stated that on May 24, 1994, Inmate Lane "fell in a hole and tripped in outfield."
Defendant also called Gary Dietterich, the recreation supervisor at Cape Vincent for 12 years. He is responsible for requesting equipment and repairs, although he said his recreation leaders perform as many of the repairs as possible. Mr. Diettrich's department is responsible for lining the fields for league and tournament play; however, maintenance of the fields, such as mowing the grass is the responsibility of the Building, Grounds and Maintenance Department. When Mr. Dietterich needed maintenance work done on the fields, he would advise someone from Buildings, Grounds and Maintenance about it; there was no formal procedure. Mr. Dietterich testified that he had never requested any repairs or maintenance on the football field. He was not aware of any other inmates falling in holes in that league field.

Mr. Dietterich was shown minutes from an Inmate Liaison Committee meeting on March 29, 1995,[3]
in which it was stated: "Areas in the yard are in need of repair. The situation is being addressed." Mr. Dietterich did not know to what the minutes referred; he testified it could mean sand was needed for the horseshoe pits or more dirt was needed around the bases on the baseball fields. Mr. Dietterich had no knowledge of a large hole existing on the football/baseball field.
The State also called Sergeant Robert Cary. On November 9, 1994, he was asked to inspect the area in the yard where claimant was injured. His report[4]
indicates that he spoke with claimant about the injury, and he inspected the field and found no holes. The report does indicate that "[t]his location does have some uneven areas where the inmate states that he fell. Maintenance has been notified regarding this situation." Sergeant Cary had no other involvement with the case other than this inspection.
The State owes a duty to maintain its property in a reasonably safe condition based upon all of the circumstances. (
See, Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241.) This duty extends to individuals confined in its correctional facilities. (See, Condon v State of New York, 193 AD2d 874). However, the State is not an insurer and liability will only be found if an injury is proximately caused by a dangerous condition the State created or either actual or constructive notice existed. (Mercer v City of New York, 88 NY2d 955; Gordon v American Museum of Natural History, 67 NY2d 836; Condon v State of New York, supra.) Where as here, conflicting evidence is presented, the Court, as the trier of fact, must assess credibility and resolve factual disputes. (LeGrand v State of New York 195 AD2d 784, lv denied 82 NY2d 663; Colangione v State of New York, 187 AD2d 844.) The Court finds the testimony of corrections officers, Craig McGraw and Gary Dietterich, as well as the report of Sergeant Robert Cary to be credible. The Court does not believe that claimant's foot was caught in a six-inch deep hole on the football field. Furthermore, even assuming the uneven areas found by Sergeant Cary could be considered a dangerous condition, defendant had no prior notice, either actual or constructive, prior to claimant's injury.
The Court finds that claimant has failed to meet his burden of proof. The State's motion to dismiss the claim made at the close of claimant's proof is hereby GRANTED and claim number 96130 is DISMISSED.


April 11, 2000
Syracuse, New York

Judge of the Court of Claims

All quotes are either from the audiotapes of the trial or the Judge's trial notes unless otherwise noted.
[2] Exhibit "A".
[3] Exhibit "2".
[4] Exhibit "B".