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
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
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
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
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,
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
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
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
, 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
, 88 NY2d 955; Gordon v American Museum of Natural History
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,
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.
LET JUDGMENT BE ENTERED ACCORDINGLY.