Claimant seeks damages for personal injuries he allegedly sustained on June 8,
2002 during his incarceration at Sing Sing Correctional Facility (Sing Sing).
This claim was heard in a unified trial.
Claimant testified that on June 8, 2002 at approximately 7:45 p.m., he was
playing softball in the A Block yard. As he was positioned in centerfield
attempting to reach a ball, he caught his arm on a
on the fence. He described the spike
as a sharp point from a patch on the fence. Claimant acknowledged that,
although he played softball often in the yard prior to June 8, 2002, he had
never observed the "spike." According to claimant, it "blended in" with the
rest of the fence.
Claimant incurred lacerations to his forearm and was transported to the
emergency room at Sing Sing and then to St. Agnes Hospital. The injury required
28 sutures to close the wound (Ex. 1).
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
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
, 66 NY2d 850, 851; Condon v State of New York
, 193 AD2d
An allegedly damaged fence is not an inherent risk of a sport as a matter of
see Morgan v State of New York
, 90 NY2d 471, 488 [torn or
allegedly damaged tennis net is not an inherent risk as a matter of law]).
Rather, it may constitute an allegedly negligent condition in the course of a
property's maintenance and implicate comparative negligence principles
). Participants in a sport may be held to have consented to injury
causing events which are known, apparent, or reasonably foreseeable consequences
of their participation and this includes open and obvious defects in the playing
field (see Turcotte v Fell
, 68 NY2d 432, 439; Cevetillo v Town
of Mount Pleasant
, 262 AD2d 517, 518).
Upon consideration of all the evidence, including listening to
claimant testify and observing his demeanor as he did so, the Court finds that
claimant has failed to establish, by a preponderance of the credible evidence,
that a dangerous condition was either created by defendant or that defendant had
notice of such a condition and failed to address it within a reasonable time
(see Gordon v American Museum of Natural History
, 67 NY2d 836;
Ligon v Waldbaum
, 234 AD2d 347; Fowle v State of New York
AD2d 698). Significantly, the only evidence claimant presented was his own
self-serving testimony and, in this case, such testimony was insufficient to
establish claimant's burden of proof. Moreover, merely because claimant
testified that he had not previously observed the allegedly dangerous condition
does not establish that it was not readily observable (see Russini v
Incorporated Vil. of Mineola
, 184 AD2d 561 [plaintiff was aware of poor
condition of playing field - although he did not previously observe the
particular hole in which he fell, plaintiff was held to have assumed the risk of
being injured by an unconcealed defect]; see also Abramson v Lawrence
Union Free School Dist.
, 270 AD2d 371 [hole in which plaintiff stepped
cannot be said to have been concealed or an unassumed
ACCORDINGLY, LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 106283.