New York State Court of Claims

New York State Court of Claims

WARD v. STATE OF NEW YORK, #2002-018-163, Claim No. 101210


Claim dismissed after trial. The defendant did not create the dangerous condition which claimant believes exists. The claimant must be charged with assuming the risk of participating in the sport.

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 of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 27, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages from the State of New York and "John Doe Manufacture" for injuries he sustained while an inmate at Riverview Correctional Facility (hereinafter Riverview). The Court dismissed the claim as against "John Doe Manufacture" as this Court lacks jurisdiction over any private entity (Court of Claims Act §9).

Claimant testified that on July 3, 1999, at approximately 1:30 p.m., he was participating in a softball game at the shortstop position. The ball was being thrown into the infield from the outfield, and claimant was backing up the third baseman in an effort to prevent the ball from leaving the playing field. The ball apparently hit the top of the third baseman's glove and careened off, over the boundary line. Claimant ran to catch the ball and, in doing so, collided with metal bleachers which are located outside of the boundary line.

Claimant cut his right arm when he hit the corner of the bleachers and was taken to the infirmary. He was examined by a nurse, pictures were taken, and he was treated for his injuries.

Claimant alleges negligence for not placing cushions over the sharp ends of the aluminum bleachers but instead leaving them exposed. Claimant testified he was in a great deal of pain for approximately two weeks, and his arm itched on occasion during the healing process. Further, claimant has two scars on his right arm which he believes to be permanent. He did miss time from his program and also testified that he could not play sports for two-to-three months.
On cross-examination, claimant stated that he began playing softball at Riverview in May 1999, and had played five or six games prior to his injury. Claimant knew where the bleachers were located and sat on them in observing other activities on the field. Claimant was also aware of the boundary line along the third base side but contended that the ball was still in play when he attempted to retrieve it.

Claimant called a summer employee at Riverview, David Willard, who was supervising the softball game at the time of the incident. Mr. Willard saw claimant hit the bleachers but could not recall if anyone was on base at the time. Mr. Willard assisted claimant by taking him to the guard shack. Claimant also called the Riverview Recreation and Program Director, William Bruyere, who testified that the bleachers came assembled, and that he was unaware of the availability of bleacher padding to cover the sharp surfaces.

The State called both Mr. Willard and Mr. Bruyere on its direct case and also submitted photographs of the playing field. The photographs depict pertinent portions of the softball field, including the bleachers, the third base line and the out-of-bounds line. Mr. Willard estimated that there were 21 or 22 feet of space between the third base foul line and the out-of-bounds line. Mr. Willard further estimated there was roughly 12 feet from the out-of-bounds line to the bleachers.

The participants in a sporting event, whether they be professionals or amateurs, consent by means of their participation to a certain level of risk inherent in the nature of sport (
Morgan v State of New York, 90 NY2d 471, 484). That assumption of risk applies not only to the sport itself but also to any possible defects to the arena in which it is played (Paone v County of Suffolk, 251 AD2d 563, 563). Further, for a claimant to succeed in his action for negligence, it must be shown that the defect created a "dangerous condition over and above the usual dangers that are inherent in the sport" (Owen v R.J.S. Safety Equip., 79 NY2d 967, 970). However, in order for a participant to assume the risk of a defective condition on the playing field, the condition must be obvious, and readily apparent to the participant (Colucci v Nansen Park, Inc., 226 AD2d 336). In this case, the location of the bleachers out-of-bounds was an obvious risk known to claimant and to all of the softball participants. Claimant had previously played softball on this field as well as other sports, and he had also sat on the bleachers as a spectator prior to his injury.
Upon review of the evidence, the Court finds that the defendant did not create the dangerous condition which claimant believes exists, and that the State clearly marked the boundary line which was sufficient distance from the set of bleachers which was the cause of claimant's injury. Claimant has to be charged with assuming the risk of participating in the sport, and the Court finds that his activity of attempting to retrieve a ball heading toward the out-of- bounds line near the bleachers was the substantial cause of his injuries. The bleachers were a condition, obvious and known to the claimant, which he made no effort to avoid. The claim is hereby DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.

August 27, 2002
Syracuse, New York

Judge of the Court of Claims