New York State Court of Claims

New York State Court of Claims

MORANT v. THE STATE OF NEW YORK, #2002-028-510, Claim No. 104530


Claimant assumed the risk of injury from collision with a radiator located in close proximity to the basketball court, when he voluntarily engaged in game of basketball. 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:
THE PROSKIN LAW FIRMBY: Lisa Anne Proskin, Esq.
Defendant's attorney:
BY: Eileen Bryant, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 27, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

This Claim, filed on July 10, 2001, alleges the Claimant, William Morant, Jr. (Claimant), was injured when he collided with a radiator cover while engaged in a game of basketball at the Wallkill Correctional Facility (Wallkill) gymnasium.

The Wallkill gymnasium, originally constructed in 1932, was retrofitted with radiators approximately thirty years ago when Wallkill converted to hot water heat. The gymnasium is comprised of a basketball court, stage and porch or deck area. The stage, which is raised, is located at the north end of the gymnasium and the porch, where the recreation supervisor's office is located, is on the south end. The basketball floor was described as being approximately 74 feet long and 40 feet wide. The radiators, and their sheet-metal covers, run along each side wall of the gymnasium. These fixtures protrude six to eight inches from the walls and extend to within one foot of the sidelines of the basketball court. The backboard and rim are suspended from the ceiling.

On April 25, 2000, Claimant, at all times relevant an inmate, was engaged in a pick-up game of basketball in the Wallkill gymnasium. The teams consisted of eight players. Claimant was playing the guard position for his team. The game had been in progress for approximately fifteen to twenty minutes before he was injured and the game stopped.

Claimant testified that he was chasing a deflected pass when he got the ball and kept running up court [in the direction of the stage]. While running he hit a radiator cover with his right leg. At first, Claimant thought he had scraped his leg but then felt an excruciating pain and dropped to the floor. When he looked down he saw his sock ripped and his leg cut[1]
. Claimant stated he was bleeding and could see his bone. Claimant did not know what cut his leg but subsequently observed his "meat"[2] [flesh] on the lower portion of the radiator cover at a seam as depicted in photograph #8, Exhibit 9. He was treated on the court and transported by stretcher to the medical unit. Although he testified that it was "very rare" for him to play basketball inside, on cross-examination, Claimant, a former high school basketball player, conceded he was familiar with the Wallkill gymnasium. Claimant further conceded that he did not know how he injured his leg.
Tony Bonagura, a physical education instructor at Wallkill for 29 years testified for Claimant. Bonagura, whose duties included supervising the gymnasium, was present on the porch when Claimant was injured. Bonagura did not see Claimant strike the radiator but had his attention drawn to the spot when he heard a loud crash. Following the accident, Bonagura observed that the seam where Claimant struck the radiator cover was separated and saw flesh at the location depicted in Exhibit 9.

Bonagura testified that, in addition to the monthly inspections performed by an inspection team, he examined the condition of the gym everyday
for cleanliness and safety. Bonagura testified the radiator covers took "a real beating" from being so close to the court. Over the course of his employment he testified that he and his supervisor would "patch up the covers" using sheet-metal screws along the seams where the radiator covers would meet to hold them in place. Sometimes he used duct tape on the seams. Bonagura further testified that he had at times submitted work orders for repairs to the radiator covers and on occasion had requested new covers. In the five years before the accident he had placed between eight and ten work orders which resulted in drilling holes for screws and reshaping the covers. Prior to Claimant's injury, Bonagura estimated he had taped "2 or 3 seams" and acknowledged he had last taped a seam a month before Claimant's injury; however, the accident site was not taped.
Correction Officer Timothy A. Selear, a 17-year veteran of the Department of Correctional Services (DOCS), was the "gym officer" on April 25, 2000 and testified for the State of New York. Selear testified that as the gym officer, he was responsible for security. Upon coming on duty he would walk around the perimeter of the gymnasium looking for hazards and then would do a second walk-around looking for inmates who had congregated or inmates engaged in prohibited activities and to get a rough count of the inmates. Selear testified that on April 25, 2000, and prior to that date, there was nothing hazardous or dangerous about the radiator covers, adding that if he had found such he would have had the hazard or defect remedied.

Selear testified that he did not see Claimant strike the radiator cover, rather, Selear

heard a crash on the right side of the gymnasium and turned to see Claimant about to fall to the ground. Selear stated he realized Claimant made heavy contact with the radiator but didn't immediately realize he was injured. Selear went to Claimant's aid, and upon observing the injury, requested that Bonagura call the Wallkill medical unit. Selear supervised removal of Claimant to the medical unit and then assisted the Fire and Safety Officer in photographing the accident site (see, Exhibit 9).
On cross-examination, Selear acknowledged that he had only become the gym officer on February 11, 2000,
less than three months before this claim arose.
The Defendant next called Wallkill's former Plant Superintendent, Timothy Laffin, Sr., to testify. Laffin was plant superintendent at Wallkill from December 1989 until July 2002. Laffin testified that with the exception of Claimant's injury, he was unaware of any injuries at the Wallkill gymnasium. He also stated he was aware the radiator covers became bent and dented, but was unaware of splitting seams and the use of duct tape. Laffin candidly acknowledged that while no work orders were found for the at issue radiator covers, it was not unusual that work orders were not maintained once completed or that repairs were made on an ad hoc basis when maintenance personnel were in the area. Laffin stated that over the years replacement of the radiator covers with different materials was discussed in order to protect the heating element.

In assessing the duty of care owed by the landowner it is now well established that the duty owed is one of "reasonable care under the circumstances [with] foreseeability [as] a measure of liability" (
Basso v Miller, 40 NY2d 233, 241). Reasonable care may vary, however, depending upon the party seeking relief and his purpose in being on the premises (id. at 241). As intramural sporting activities involve inherent dangers to the participants (Scaduto v State of New York, 86 AD2d 682, affd 56 NY2d 762), the duty owed by the State to this Claimant required it only "to make the conditions as safe as they appear to be" (Morgan v State of New York, 90 NY2d 471, 484, quoting Turcotte v Fell, 68 NY2d 432, 439).
Claimant asserts the Defendant breached its duty by permitting the dangerous condition
(bent radiator covers or split radiator cover seams) to exist. Defendant counters that Claimant's participation in the basketball game constitutes an assumption of risk; that a dangerous condition did not exist and if it had, the State was not on notice.
Pursuant to the doctrine of assumption of risk, an injured party may not seek compensation when the injuries in question were incurred as the consequence of some risk or danger normally associated with a pursuit which was voluntarily undertaken. Thus, when it is shown indisputably that a particular injury was caused by a condition or practice which is common to a particular sport (
e.g. Turcotte v Fell, 68 NY2d 432, supra [one racehorse accidentally running into another]; Maddox v City of New York, 66 NY2d 270, [baseball field wet and muddy after rain]) or those associated with any open and obvious defect or obstacle in the place where the sport is played (e.g. Ward v State of New York, Ct Cl, Fitzpatrick, J., UID #2002-018-163, Claim No. 101210, August 27, 2002 [colliding with bleachers chasing overthrow]; Ciocchi v Mercy College, 289 AD2d 362 [badminton pole stored in corner of gymnasium]) assumption of risk will preclude recovery.
Although there were no eyewitnesses to Claimant's injury, the testimony established that Claimant was injured when he collided with a radiator cover on the right-hand side of the basketball court, as one faces the stage. The Court credits the testimony of Bonagura and Selear that upon their visual examination of the gymnasium the day of the subject accident, they saw no hazard or defect relating to the radiator covers and that a crash drew their attention to the injured Claimant. As such, the Court rejects Claimant's contradictory statement that he was cut on a jutting piece of radiator cover as he ran past the cover down court[3]
. The Court further finds that Claimant was an experienced basketball player who was familiar with the basketball court at the Wallkill gymnasium. Having so found, the Court must necessarily conclude that colliding with the radiators and their covers, which were an open and obvious condition in this gymnasium, was a risk Claimant assumed upon voluntarily participating in the basketball game, and in this particular instance, in chasing after the basketball near the sideline.
Accordingly, the Claim is dismissed.

Let judgment be entered accordingly.

All motions not previously ruled upon are denied.

December 27, 2002
Albany, New York

Judge of the Court of Claims

[1] The Court observed Claimant's right lower leg and noted a scar 3" long by ½ -1" wide, with some discoloration and a slight indentation.
[2] Unless otherwise noted all quotes are from the court's notes or the audio record of the trial.
[3] The jutting piece of metal theory would have required both Bonagura and Selear to have missed this defect in their inspections, a suggestion the Court rejects. It also follows that Claimant failed to establish by a fair preponderance of the credible evidence that a defective seam, i.e. already separated and exposing a sharp edge, existed at the point where Claimant was injured.