New York State Court of Claims

New York State Court of Claims

GALLIPOLI v. THE STATE OF NEW YORK, #2003-010-007, Claim No. 99007


Inmate struck by errant ball in rec yard where defendant had notice of risks. 100 percent liability.

Case Information

CHERIE GALLIPOLI Claimant's motion to amend the caption to reflect the correct spelling of her name was granted. The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
Footnote (claimant name) :
Claimant's motion to amend the caption to reflect the correct spelling of her name was granted.
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
GERSOWITZ LIBO & KOREKBy: Stephen H. Gerowitz, Of Counsel
Defendant's attorney:
Attorney General for the State of New YorkBy: Patrick F. MacRae, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 12, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for injuries she sustained while she was incarcerated at Bedford Hills Correctional Facility. On August 9, 1998, claimant was sitting on a bench in the facility recreation yard when she was struck in the face by a ball batted during a softball game. The bench had been placed partly in left center field by a correction officer who was supposed to maintain the location of the benches within a safety zone designed to safeguard inmates from errant balls. Claimant was neither a participant nor a spectator in the game. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Claimant testified that in August 1998, she was housed in the 114A and B unit and there were two outdoor recreation areas, yard 113 and yard 114. Quiet activities, as well as softball games were permitted in 113, while softball was not permitted in 114. On August 9, 1998, yard 114 was not in use. Yard 113 was enclosed by a combination of buildings and fences. Inmates were not permitted to be within 10 feet of the enclosures. Due to the construction of a hospital at Bedford, a temporary fence was erected within the perimeter of the fence enclosing 113 yard; this reduced the size of the yard.

Yard 113 opened at 1:15 p.m. and the gates were locked after the inmates entered. One hour later, inmates were given an option to leave the yard. When claimant entered the yard, there was no softball game in progress and no announcement that one would be played. Claimant sat on a bench near the gate located at the far end of the softball field, beyond second base. She did not move the bench from its location. Another inmate, Theresa Candido, was also seated on the bench. Claimant became aware that a game had started when she observed players. She could not hear any noises associated with the game from where she was seated, nor did she expect that a ball from the game could reach her. Claimant did not see a correction officer in the yard nor did she observe any chalk lines encircling the softball field and indicating a safe zone for non-participants.

Claimant was reading a book and she had just closed it when Candido exclaimed, "Cherie, the ball" (T:154).[1] Within a second, claimant was hit in the face by the ball. Claimant never saw the ball coming at her. Claimant's accident occurred before the scheduled time when she would have been permitted to leave the yard.

Correction Officer Randolph Salley testified that he has been employed at Bedford for 14 ½ years and assigned to the 113 yard for five years. On August 9, 1998, Salley was responsible for the 113 yard and weight room. Correction Officer Cudaby was assigned to the 114 yard. Salley believed that the 114 yard had been initially opened; however, when no inmates reported to it, Cudaby then joined Salley in 113. Salley conceded that the temporary fence erected due to the hospital construction made the 113 yard smaller. Salley did not know when the fence had been installed nor any of the relevant dimensions of the area. Before Salley opened the 113 yard, he searched the grounds for weapons and contraband. He also inspected the benches and picnic tables and, at his direction, they were placed in a "safe zone," where inmates not involved in the softball game could pursue sedentary activities (T:15). He believed that sometime in 1998, the concept of a safe zone was instituted by his supervisor and this policy was communicated verbally rather than in writing (T:26-27).

Salley explained that the safe zone was initiated due to the frequency of softball playing and the construction of the hospital. He admitted that, prior to August 9, other inmates who had not been participating in softball games had been hit by errant balls. This, he explained, created a need for the safe zone. The safe zone was supposed to be in the foul area outside first and third base, as well as a portion of fair territory behind center field. Salley testified that chalk markings were drawn on the ground approximately once a week, depending on weather conditions, to delineate the safe zone.

On August 9, 1998, Salley directed the placement of the benches, but he left the area before the task was completed (T:52-57). After the benches were positioned, inmates were not permitted to move them without permission from a correction officer. There was no evidence that the benches had been moved after their initial placement on the day of claimant's accident. Salley maintained that Cudaby was responsible for the positioning of claimant's bench.[2] Claimant's bench was on the borderline of the safe zone with one quarter of it in left centerfield. While Salley did not know any of the dimensions relating to the field or the yard, he estimated that claimant's bench was 200 feet from home base (T:36).

According to Salley, no balls were supposed to reach the safe zone, but they had in the past. Despite the fact that a "flight restrictor" ball was used, Salley testified that inmates had been hit before in what was considered the safe zone (T:70-71). Prior incidents of injury to non-participants were reported to defendant: July 1996 (Ex. 34); July 7, 1996 (Ex. 7); July 5, 1997 (Ex. 2); May 27, 1998 (Ex. 8). Salley testified that because the balls were hit where non-players were located, he established his own safety practice of walking around the yard and yelling "ball in flight" as a warning signal (T:43). Inmates were aware of this practice and often joined in the "ball in flight" chorus (T:43-44, 60-62). Salley conceded that, prior to claimant's accident, inmates had been hit in the safe zone, which was one of the reasons he walked around the field and instituted his own warning system. Salley testified that before each game, he advised inmates to sit in the safe zone (T:81). "I always made a safety speech to keep people alert and cut down at least the injuries" (T:80). "I assured them that it was a safety zone. I couldn't assure them that they wouldn't - - that they wouldn't be hit" (T:81). On August 9, 1998, Salley completed his speech before claimant had entered the yard.

Salley was not in the yard when claimant was injured; he was checking the weight room, leaving Cudaby, who was located at the entrance of the yard, in charge. At trial, Salley testified that, before leaving, he noted his impending absence to Cudaby (T:48). At his examination before trial, Salley could not say that he had informed Cudaby (T:49)

It is well established that "[t]he State just as any other party *** is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived." (Flaherty v State of New York, 296 NY 342, 346) and with respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506, 513; Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241). The State, however, is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see, Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874).

The evidence established that defendant was aware that, despite the use of a flight restrictor ball and a safe zone, non-player inmates had been struck by errant softballs on more than one occasion prior to claimant's accident (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519 [defendant had reason to know from past experience that there was a likelihood of conduct on the part of third persons which would endanger persons on defendant's premises]). Thus, it was indeed foreseeable to defendant that claimant could be injured in the very manner as occurred (see Sanchez v State of New York, ___NY2d___, 2002 WL 31619048 [Nov. 21, 2002]). Under the circumstances, defendant's protective measures, including the use of a flight restrictor ball and placement of the bench only partly within the safe zone, were not sufficient to fulfill its duty to provide sufficient protection to a non-participant inmate (see Davidoff v Metropolitan Baseball Club, 61 NY2d 996; Sparks v Sterling Doubleday Enterprises, ___ AD2d ___, 752 NYS2d 79). Nor was the evidence sufficient to establish that claimant had assumed the risk of being hit by an errant ball where she was neither authorized to move the bench nor afforded the opportunity to leave the yard prior to the commencement of the softball game (cf Clark v Goshen Sunday Morning Softball League, 122 AD2d 769 [no issue was raised regarding adequacy of protection and spectator chose to watch the game from an unprotected area]).

Accordingly, the Court finds defendant 100 percent liable for claimant's accident. A trial on the issue of damages will be scheduled as soon as practicable.


March 12, 2003
White Plains, New York

Judge of the Court of Claims

[1] All references to the trial transcript are preceded by the letter "T."
[2] Cudaby, who is no longer employed by the State, did not testify. Both counsel discussed offering into evidence Cudaby's examination before trial, but they never did.