New York State Court of Claims

New York State Court of Claims

CRUZ v. THE STATE OF NEW YORK, #2002-015-550, Claim No. 102202


After trial on issue of liability Court found that defect in surface of prison handball court was open and obvious and that claimant, an avid handball player who played on courts near defect and admitted knowledge of its existence assumed the risk of injury sustained when he encountered defect while chasing after errant ball and fell injuring his fibula.

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:
Gellert & Cutler, P.C.By: Michael F. McCusker, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 18, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this negligence claim was bifurcated and the decision herein addresses the liability issue only.

This is a claim to recover money damages for personal injuries allegedly sustained on May 24, 1998 while claimant was playing paddleball with another inmate on the handball courts at Eastern Correctional Facility (ECF) at Napanoch, New York. Claimant Cruz alleges that he tripped and fell as a result of encountering a rough, uneven surface between courts numbered 3 and 4 causing him to sustain a fracture to his fibula. He asserts that the defendant knew of the dangerous, uneven surface in that area and that its failure to remedy the unsafe condition was a proximate cause of his injuries. Claimant further alleges that the dangerous condition was, in fact, created by the defendant's employees several months prior to the date of his accident when the area was excavated as part of an effort to locate a leak in a steam pipe which supplied heat to a nearby chapel on the grounds of ECF.

The defendant argues that Cruz assumed the risk of his injuries by playing paddleball on a court in close proximity to the open and obvious defect.

Claimant presented three witnesses in addition to himself. The first of these was Robert La Barr who identified himself as the maintenance supervisor at ECF both at the time of his testimony and at the time of claimant's accident. He testified that his duties included the supervision of all maintenance activities at ECF and that maintenance work performed at ECF was generated by a work order. He further testified that he searched ECF's records for work orders prior to May 24, 1998 regarding the paved surface of the handball courts adjacent to the eastern wall of the facility and found none. He acknowledged, however, that in the fall of 1997 ECF maintenance staff dug up an area within the eastern wall of the handball courts trying to locate a leak in a steam pipe that provided heat to St. Jude's Chapel on the facility's grounds. The leak was difficult to find because the leaking pipe was contained within another pipe. The witness related that after excavation the area was refilled with dirt to ground level but no action was taken to restore the pavement to its pre-excavation condition prior to claimant's accident.

On cross-examination Mr. La Barr testified that the excavation had left a depression between courts 3 and 4 which extended partially into the playing surface of court 3. He was, however, unsure of its depth. He recalled that the excavation occurred in December 1997 or January 1998 and that the area was not repaved at that time because maintenance was not able to use macadam fill during the winter months since the material does not set well in cold temperatures. He indicated that permanent surface repairs were expected to be made in late spring when requested funds would be available. Although the witness alleged that court number 3 was closed to inmates in May of 1998 and that a trash can was placed at or near the depression he was unable to specify when in relation to the date of claimant's accident such action was taken. La Barr testified that according to his measurements of the area the depression was located approximately 20 feet from the nearest edge line of court number 2, which he understood claimant was using at the time of his fall.

On redirect examination the witness indicated that maintenance would not be notified of inmate injuries attributable to ground defects and that he never investigated claimant's accident. He also confirmed his earlier testimony that the depression was located between courts 3 and 4.

Testimony on re-cross dealt with the painting of lines on and near the re-surfaced courts which Mr. La Barr alleged were placed in the same locations as existed in May 1998. He repeated that his measurements taken a few weeks prior to trial revealed the distance from the area of the depression to the closest edge of court number 2 was approximately 20 feet. In taking these measurements La Barr relied upon a transcript of claimant's testimony at an examination before trial in which claimant said he was playing on either court number 1 or court number 2 prior to his accident. He also relied upon photographs (Claimant's Exhibits 1-3) taken shortly after the accident which show the area before surface repairs were made. Laser photographs (Defendant's Exhibits B and C) were received in evidence and used by the witness to explain how he located the area of the depression as it existed in May 1998 by using a certain pockmark in the eastern wall which was evident on two of the three May 1998 photographs (Claimant's Exhibits 1 and 2). La Barr opined that the entire handball area needed to be repaved as a result of the excavation.

Claimant's second witness was Michael Cooper, ECF's Fire and Safety Coordinator whose duties included the investigation of all injuries at the facility. He testified that he investigated claimant's accident and that he took the photographs of the scene received in evidence as Claimant's Exhibits 1-3 on May 27, 1998. He indicated that it was customary for him to receive information regarding inmate injuries from the facility's hospital. Upon receipt of such information he would decide if an investigation was required and whether he would prepare an investigation report. The report of the witness' investigation of claimant's accident was offered and received in evidence as Exhibit 4.

Cooper was asked why an unsafe condition was permitted to exist and he replied that permanent repairs were scheduled for summer when funds would become available. He was also queried regarding his entry on the accident investigation report indicating that the "area was now closed off" and responded that its closure resulted from claimant's accident. The witness alleged, however, that prior to the May 24, 1998 accident a trash can had been placed near the depression although he admitted that it was not in that location at the time of his May 27, 1998 investigation. He could not recall when prior to May 24, 1998 the trash can had been placed there nor did he know if the trash can was in place on the date of claimant's accident. He testified that it was obvious to him that the area needed to be repaired but he could not recall having discussed the matter with ECF's Plant Supervisor. He also could not recall when he first noticed the broken pavement prior to his investigation of claimant's accident.

This response prompted further questioning regarding the witness' prior knowledge of the condition of the pavement. It was demonstrated that his trial testimony conflicted with his testimony at an examination before trial in which he stated that he became aware of the condition two to three weeks prior to claimant's accident. The witness could not recall if he had placed the trash can in the area of the depression at issue or had placed it on a nearby track which according to the witness also had cracked pavement.

On cross-examination Cooper testified that his primary duties as Fire and Safety Coordinator relate to fire safety, including checking fire extinguishers, hydrants, smoke and fire detectors, etc., and did not encompass general grounds maintenance issues. He reiterated his earlier testimony that he does not investigate every accident at ECF but did investigate this accident and in doing so determined that the subject depression was less than one inch deep. He stated that he was unaware of any prior complaints or reports of injury attributable to the subject depression or whether, in fact, court number 2 was available or closed to inmate use.

On redirect examination the witness explained that the handball courts were informally numbered 1 to 6 proceeding from right to left as they appear in Exhibits A and B. He also acknowledged that he was unaware whether a registration or sign-up procedure for use of the courts was in place at the time of claimant's accident.

Claimant's third witness was Rudy Kanzinger, the Plant Superintendent at ECF, whose duties encompassed overseeing maintenance activities at the facility including the provision of heat, hot water and drinking water. The witness testified that ECF maintenance crews broke through the handball court surface in search of the chapel steam pipe leak during the latter part of November and the first week of December 1997. On cross-examination this witness testified that the break in the surface was located in the four foot area separating courts numbered 3 and 4 extended partially into court number 3. The witness characterized the depression as being less than one inch deep. He confirmed earlier testimony that repairs to the area were influenced by both the weather and budgetary considerations.

On redirect examination Kanzinger stated that his last visit to the site prior to claimant's accident would have been in January or February 1998 when he measured the area in anticipation of its repaving. He admitted being present when the hole was dug and refilled . The witness did not place any traffic cones in the area to prevent its use by inmates but recalled someone placing a trash can over the hole immediately after it was excavated and refilled. He was unsure whether or how long the trash can remained in that location.

During re-cross examination Kanzinger testified that funds for resurfacing the handball courts were included in an emergency funding request submitted in December 1997. The request, aimed primarily at repairing the steam line leak, was granted in the amount of $200,000 but unexpected costs arose when the newly placed temporary steam line ruptured due to weather conditions and it too needed to be replaced. Additional funding then had to be requested for resurfacing the handball courts.

Claimant was the fourth and final witness at trial. He discussed a period of incarceration at ECF during the 1970s and his return to the facility in 1996-1997 after being convicted on robbery and homicide charges. He professed a love of paddleball and described it as a "passion" in which he engaged almost daily, weather conditions permitting. According to claimant, recreation at ECF included three hours in the morning, two to three hours in the afternoon and three hours in the evening. When afforded the opportunity the witness would spend his recreation time playing paddleball.

The witness recollected that weather conditions were favorable in 1998 and that he began using the eastern wall handball courts in March of that year. Claimant was not aware of any prohibition against use of the courts in the Spring of 1998 and saw no cones, tape or other barrier placed in the area to prevent use by inmates. He recalled seeing a trash can in the area but alleged that it was placed over or near a sewer drain, the location of which he marked in blue on defendant's Exhibit A. According to the witness the sewer drain was located "way behind" the back line of the handball courts and was not near the subject depression. He testified that the handball courts were available to inmates on a first come, first served basis and believed that prior to his accident he was playing paddleball on court number 2 which he described as "more playable" since it had fewer cracks in the surface. Claimant recalled that no one was playing on court number 4 prior to his fall. He testified that at the time of his injury he was playing doubles and missed a shot which had angled off the wall in the direction of court number 3. He stated that he encountered the surface depression located between that court and court number 4 while attempting to recover the ball and, in his own words, "stumbled upon that crack, that hole, that indention" [
By his positive responses to his attorney's questions claimant indicated that it was his practice to avoid courts 3 and 4 whenever possible because of the condition of the pavement in that area. In fact, he went so far as to say that due to the uneven surface "[w]e would avoid that court by all costs," referring to courts number 3 and 4.

During cross-examination claimant admitted that prior to May 24, 1998 he was well aware of the surface condition which caused his injury, that he avoided playing in that area for fear that the surface condition might cause injury and that despite his awareness of the condition he never complained to anyone at the facility concerning its existence or repair. He also admitted that he played paddleball on the morning of May 24, 1998 and at that time he had used court number 1 which was his preferred court. He acknowledged that he had the option of not playing paddleball at all in the afternoon when he discovered that court number 1 was occupied but that he opted to use court number 2. He admitted that he always played to win and that he initially went after the ball immediately prior to his accident with the hope of returning it to play. Upon questioning by the Court, however, Cruz stated that the ball was already out of play and he was merely attempting to retrieve it at the time of his fall.

On redirect examination, claimant's counsel inquired whether "[w]hen your foot made contact with that depression and you tumbled . . . , were you at that moment actively engaged in playing the game of paddleball" to which the claimant responded "at that moment, no[2]
At the conclusion of claimant's testimony defense counsel, without calling any witnesses, moved to dismiss the claim based upon claimant's assumption of the risk; that claimant's injury was caused exclusively by his own actions taken with full knowledge of the dangerous condition of which he complains; that the State is free from liability under the doctrine of qualified immunity; and that due to weather conditions the State must be afforded a reasonable opportunity to repair the area and that reasonable temporary measures were, in fact, taken. The Court reserved decision on the motion.

Morgan v State of New York, 90 NY2d 471, the Court of Appeals examined the assumption of risk doctrine in relation to the duty owed by an owner or operator of a sporting facility and at pages 483-484, stated:
In a key precedential development after the enactment of CPLR 1411, Turcotte v Fell (68 NY2d 432, supra), the Court elaborated that "assumption of risk is not an absolute defense but a measure of the defendant's duty of care and thus survives the enactment of the comparative fault statute" (68 NY2d, supra, at 439 [emphasis added]).

Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks (id., at 437; see Prosser and Keeton, Torts § 68, at 486-487 [5th ed]; McEvoy v City of New York, 292 NY 654, affg 266 App Div 445; Restatement [Second] of Torts § 50, comment b). Thus, to be sure, a premises owner continues to owe "a duty to 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, plaintiff has consented to them and defendant has performed its duty" (Turcotte v Fell, supra, 68 NY2d, at 439; see also, Prosser and Keeton, Torts § 68, at 485-486 [5th ed]). The balance struck at the threshold duty stage of responsibility and adjudication is that the tort rules support a social policy to "facilitate free and vigorous participation in athletic activities" (Benitez v New York City Bd. Of Educ.,73 NY2d 650, 657, supra).
In Gamble v Town of Hempstead, 281 AD2d 391, which involved a plaintiff who tripped and fell on a crack in the surface of a basketball court while playing basketball the Appellate Division, Second Department, stated the following (at page 391-392):
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 which flow from such participation (see, Morgan v State of New York, 90 NY2d 471, 484-486). Application of the doctrine of assumption of the risk requires not only knowledge of the injury-causing defect, but also, appreciation of the resultant risk. Awareness of risk, however, is not to be determined in a vacuum (see, Maddox v City of New York, 66 NY2d 270, 278). Rather, it is to be assessed against the background of the skill and experience of the particular plaintiff (see, Maddox v City of New York, supra, at 278; Turcotte v Fell, 68 NY2d 432, 439; Morgan v State of New York, supra, at 486; Pascucci v Town of Oyster Bay, 186 AD2d 725). Furthermore, the doctrine encompasses risks associated with the construction of the playing field, and any open and obvious conditions thereon (see, Maddox v City of New York, supra; Paone v County of Suffolk, 251 AD2d 563).

Here, the crack in the surface of the basketball court was open, obvious, clearly visible, and known to the infant plaintiff. In addition, contrary to the Supreme Court's conclusion, the infant plaintiff had the necessary skill and experience to appreciate the risk presented by the crack.
The same conclusions were reached by the Appellate Division in
Retian v City of New York, (259 AD2d 684, lv to app denied, 93 NY2d 811) on facts strikingly similar to the instant case.
In this case the evidence established that the claimant was an avid paddleball player who utilized the subject courts as often as weather permitted, often several times per day, from the time of his arrival at Eastern Correctional Facility. More specifically, the claimant testified that he used the courts to play paddleball on a daily basis between late March 1998 and the date of his injury, a period of approximately two months. He stated that it was his practice to avoid using courts 3 and 4 because of the uneven condition of the playing surface and the potential for injury should he encounter the hazard. The photographs taken on May 27, 1998 and received in evidence clearly demonstrate the existence of an open and obvious defect and the claimant confirmed he was, in fact, aware of the defect and its potential to cause injury. Although the claimant's awareness of the condition and its injury causing potential was referenced at various points in his testimony, perhaps the clearest expression was related in the following excerpt from his cross-examination:
Q. All right. Now, returning to the day of the accident, you had played paddle ball quite a bit that spring before your injury occurred, isn't that correct?

A. Yes.

Q. And you indicated that you deliberately avoided the area where this depression, which is what we're here to talk about today, and which you've identified in the photographs, you deliberately avoided that area of the courts because you were concerned about that condition and that it might cause injury to you, is that correct?

A. That's correct.
Armed with both knowledge of the existence of the defect and an awareness of the risk of potential injury, the claimant voluntarily assumed the risk that he might encounter the defect while engaged in retrieving an errant ball. As a result, the Court finds that the claim must be dismissed inasmuch as the defendant fulfilled its duty to "exercise care to make the conditions as safe as they appear to be" and the claimant consented to the risks of the activity in which he was engaged which were both fully comprehended and perfectly obvious (
Turcotte v Fell, 68 NY2d 432, 439).
The defendant's motion to dismiss made at the close of claimant's proof is granted and the claim is dismissed.

Let judgment be entered accordingly.

February 18, 2002
Saratoga Springs, New York

Judge of the Court of Claims

[1]Trail transcript p. 149 lines 9-10.
[2]Trial transcript pp 164-165.