New York State Court of Claims

New York State Court of Claims

ROMEO v. CITY UNIVERSITY OF NEW YORK, #2003-014-503, Claim No. 98016


Synopsis


Defendant found liable for injury sustained by claimant who fell while engaged in hurdles practice.

Case Information

UID:
2003-014-503
Claimant(s):
ESTHER AGITA ROMEO The Court does not have jurisdiction over Hunter College, named as a defendant, as an entity distinct from City University of New York. The caption has been amended accordingly.
Claimant short name:
ROMEO
Footnote (claimant name) :

Defendant(s):
CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :
The Court does not have jurisdiction over Hunter College, named as a defendant, as an entity distinct from City University of New York. The caption has been amended accordingly.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98016
Motion number(s):

Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Gersowitz, Libo & KorekBy Michael A. Fruhling
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy Grace Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 27, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On January 29, 1998, the claimant was a student at
Hunter College, one of the senior colleges of the City University of New York. She was
taking part in a scheduled hurdles practice for an upcoming track and field competition. The hurdles practice course was located in an indoor hallway, approximately 40 meters long and 8 meters wide. She had first started jumping hurdles in 1997, and had been instructed by her coach, Lyndon Providence.

The claimant testified that she had successfully completed three passes through the hurdles practice course. On her fourth attempt her lead foot made contact with a crossbar on a hurdle which became dislodged from the rest of the hurdle and became tangled in her legs causing her to fall. She stated that no other students had come into contact with that hurdle that day.

Lyndon Providence was called as a witness by the claimant. He was employed by the defendant as an assistant athletics coach at Hunter College. Mr. Providence, who had been a hurdler when he attended college, had been a member of the CUNY athletics department since 1994, and worked primarily with hurdlers and jumpers on the track and field team. He supervised hurdles practice on January 29, 1998, and was the only coach present at the time of the incident.

He testified that he believed he had set up the hurdles on the day of the incident, but noted that sometimes the students would help him do so. Mr. Providence stated that he did not inspect the hurdles because it was the equipment manager's responsibility to do so. He testified he was nonetheless "cognizant of the fact that there were no bolts in the hurdle" that was involved in the accident. He estimated that one-half to two-thirds of the thirty hurdles were in good condition and the remainder were in poor condition.

Mr. Providence stated that he witnessed the claimant attempt to jump over the hurdle when her lead leg made contact with the crossbar causing it to detach and lift up and away from the apparatus. When her trail leg came through, it became caught on the crossbar which was in midair, causing her to fall. He explained that the crossbar is a horizontal structure suspended approximately 30 inches from the ground, secured by four bolts, two on either side, to two vertical poles. At the base of the hurdle are two tubes that contain a floating or sliding weight. If a hurdler comes into contact with a crossbar the weight in the base is designed to slide forward allowing it to fall down and then to gently rise back up. He stated that based on his experience in track and field, a crossbar separating from the body of the hurdle upon contact would be an unusual occurrence and that during his coaching tenure at Hunter no other student had met with a similar accident on the hurdles.

Mr. Providence testified that prior to the claimant's accident he had informed Edwin Zarowin, head coach of the track and field team at Hunter College, that some of the hurdles were unsafe. He also informed one of the equipment managers that they were unsafe. According to Mr. Providence, the equipment manager repeatedly told him that he would put bolts in the hurdles.

Edwin Zarowin, called as a witness by the defendant, testified that it was Mr. Providence's responsibility to set up the hurdles for practice and make sure they were in proper working condition. It was Mr. Zarowin's recollection that Mr. Providence had not complained to him about the condition of hurdles prior to the claimant's accident.

Mr. Zarowin testified that the crossbar is retained by two three-inch sleeves and is "usually, but not always, retained by either a nut and bolt or several." According to Mr. Zarowin, when the hurdles are purchased, they arrive with the crossbar unaffixed, requiring assembly. Four bolts, two for each side, are provided by the manufacturer in order for the crossbar to be affixed to the hurdle. He explained that over the course of practices the hurdles are subject to contact by the participants, which invariably loosens and may dislodge the nuts and bolts.

Mr. Zarowin stated that on several occasions he had observed students jumping over hurdles which had one or more bolts missing. He testified that when the bolts became loose or dislodged from the hurdle the school would still use the hurdle by sliding the crossbar into retaining sleeves or by taping it to the hurdle. He stated that the purpose of having the crossbar properly bolted to the hurdle is so that if an athlete comes into contact with the crossbar it does not become detached.

It is established law that "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation." Morgan v State of New York, 90 NY2d 471, 484. At the same time, an entity such as the defendant "must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks." Benitez v New York City Board of Education, 73 NY2d 650, 658.

The claimant's proof established that the hurdle was designed so that the crossbar would remain affixed to the apparatus so that if there were contact with it the hurdle would tilt forward and then gently rise after the hurdler passed through the area. The claimant also established that the defendant breached its duty of care when it failed to properly attach the crossbar to the hurdle or take measures to repair it despite knowledge of its condition.

Although the claimant may have assumed the risk of injury which ordinarily attends this sport, such as falling after striking a properly constructed hurdle, the defendant's negligence created an enhanced risk not assumed by voluntary participants of the sport. She was neither aware of the dangerous condition nor was the condition an open and obvious one that should have been perceived. Claimant did not assume the risk of an injury caused by the improperly affixed crossbar which "created a dangerous condition over and above the usual dangers" inherent in the sport. Owen v R.J.S. Safety Equipment, Inc., 79 NY2d 967; see, Clark v State of New York, 245 AD2d 413.

In accordance with the foregoing, the Court finds the defendant liable. The issue of damages will be set down for trial upon the filing of a note of issue and certificate of readiness pursuant to Rule 206.12 of the Uniform Rules for the Court of Claims.

All motions on which the Court may have reserved decision or which were not previously determined are denied

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.


June 27, 2003
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims