New York State Court of Claims

New York State Court of Claims

MUSSENDEN v. THE STATE OF NEW YORK, #2003-010-021, Claim No. 106283


Synopsis


Inmate claimant, who, during a softball game caught his arm on a spike on a fence, failed to establish 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.

Case Information

UID:
2003-010-021
Claimant(s):
DAVID MUSSENDEN The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
MUSSENDEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
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):
106283
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
DAVID MUSSENDENPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:
Signature date:
June 23, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
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 "spike"[1] 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, 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).
An allegedly damaged fence is not an inherent risk of a sport as a matter of law (
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 (id.). 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, 187 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 risk]).
ACCORDINGLY, LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 106283.

June 23, 2003
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] All quotations are to the trial notes or audiotapes unless otherwise indicated.