ROSARIO v. THE STATE OF NEW YORK, #2003-016-026, Claim No. 97921
Post-hole used for anchoring bases at Riverbank State Park softball field was
not a dangerous condition.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Murray S. Axelrod, Esq.
Eliot Spitzer, Attorney GeneralBy: Albert Masry, AAG
April 1, 2003
See also (multicaptioned
This is the decision following the liability trial of the claim of Ramon
Rosario, arising from his fall at Riverbank State Park in upper Manhattan on
March 25, 1996. Claimant and his wife Jeannette lived at West 137
th Street, a block or so from the park. On the day in question, Mr. Rosario and
his wife walked with their three-year old grandson to Riverbank so that the
child could play.
Mrs. Rosario recalled that it was a beautiful day, although neither she nor her
husband referenced the time of day when they testified; nor was there an
incident report with the time of occurrence because claimant did not report his
Defendant's exhibit B is a map of Riverbank and the nearby area. The park
stretches north-south between the Hudson River and the Henry Hudson Parkway from
137th Street to 145th Street. Riverbank State Park is entered by going west on
either of these two streets, then across a bridge that spans the Parkway. Mr.
Rosario marked the location of his apartment building on the lower left hand
corner of the exhibit with a capital "H."
In addition to claimant and Mrs. Rosario, the other witness at trial, called by
defendant, was Oscar Smith, the deputy director of Riverbank State Park, a job
he assumed in 1996, although it never became clear whether that was before or
after March 25, 1996.
Smith described the park's extensive facilities, both indoor and outdoor. Among
the indoor facilities are an Olympic-size pool, a skating rink and a cultural
complex with a theater. Outdoors there are north and south picnic grounds, an
amphitheater, an Olympic track, basketball, handball and paddleball courts, a
water play area, two children's playgrounds and a softball field. The softball
field is located in the southwest portion of the park, and clearly shown on
defendant's exhibit B.
The softball field is surfaced with artificial turf, commonly known as Astroturf
after its Houston progenitor. The Astroturf covers the entire field, including
, except for very small cut-outs
for the bases, including home plate, which are anchored down by one-foot metal
posts or pipes (def exhs I and M). When not in use, even during softball
season, the bases are removed.
Mr. Rosario's recollection of his
accident was elicited piecemeal on his direct testimony. This was the first
Q. Where in the park did this accident happen? A. In the home place [home
... [I] got my shoe on the corner here...[showing his heel]...And then I
Rosario said his grandson wandered away from them, and walked onto the ball
field, which was open by the first and third-base sides between the backstop and
the lower fences extending down the foul lines.
Claimant then followed the three-year old into the field:
There was a green turf and then I was walking, and I was looking at my grandson.
Then that's when I got the green plastic turf, and then my shoe got caught...in
the Astroturf and then I fell...I was walking, I got caught up with my heel;. I
turned around trying not to fall, but then I fell backwards...[o]n my
The following exchange occurred on Rosario's direct testimony:
Q...what caused you to fall; what happened? A. The synthetic turf and then
it cut my heel.
Q. As a result of your heel being caught in this turf, did it
cause you to fall? A. Yes, that [made] me fall.
Claimant recalled that he had been walking
a "little fast to get my grandson." He noted that he had not realized what
caused him to fall until he got up. Rosario described his footwear as
"Florsheim" with laces and heels, apparently not footwear for the playing field.
Jeannette Rosario testified that she saw her husband as he was falling down, but
did not see how it happened.
While the State, like any property owner, has a duty to maintain its premises
in a reasonably safe condition (
Basso v Miller
, 40 NY2d 233, 386 NYS2d 564 [1976 ]), at the outset, a
threshold issue should be addressed: Is this an unsafe or dangerous condition?
See Madrid v City of New York
, 42 NY2d 1039, 399 NYS2d 205 (1977);
2:90. When home plate (def exh P) is removed, the defendant's
exhibits L and M shows the condition of the surface under home
There is a small square dirt area,
which is slightly lower than the surrounding turf. In the midst of this dirt
square is another square, a hole, for positioning the support anchor or post.
There are two photos in evidence, from which it is apparent that the toe of a
shoe is substantially larger than this post-hole (cl exh 6 and def exh
In defendant's photo (exh M), a ballpoint pen is placed next to the larger dirt
square, and it is only slightly longer than a side of such square, and about
four times as long as a side of the square post-hole. Measuring the side of the
post-hole from the photo, and comparing it with the length of the front edge of
home plate, including the imprint made by its black border, further demonstrates
how small the post-hole is: a side of the post-hole is less than one-twelfth as
long as the edge of home plate.
In sum, this is not an unsafe or dangerous condition. The four post-holes in
the baseball field at the infield's corners are certainly no bigger than, for
example, the separation or opening in a sidewalk grate. The post-holes were
used in the softball field when Riverbank opened in 1993, and the practice of
removing the bases and home plate when no game was being played had apparently
always been in effect. No accidents like the one Mr. Rosario alleges were
reported from 1993 through March of 1996, nor is there evidence of any
complaints about such condition.
In fact, the way in which the bases are affixed to the Astroturf using the four
post-holes is more in the nature of a design feature for the particular product,
and should be challenged as such. Mr. Smith testified that when repairs were
made around home plate in the year 2000 - - its surface was torn - - the
company that supplied and installed the Astroturf, Southwest Industries of
Leander, Texas came back and did the repairs. Although the year is unclear,
Southwest Industries, at some point before 2000, inspected the facility,
including underneath each base and found, according to Smith's knowledge of it,
"the pads underneath were in very good shape" and made no note of the post-hole
which was, after all, the way in which this surface was designed and
To the extent that there were alternate such surfaces for use, or that the
industry (including Southwest), had an accepted practice to safely cap or cover
these post-holes (or that Riverbank's own staff could have done so), none of
this was raised or advanced by claimant.
Moreover, not only were the four post-holes (and surrounding dirt square) not a
dangerous condition, but they were open and obvious in their four corners of the
infield, with an imprint or outline as large as the bases, including home plate,
and readily observable, especially for someone like Mr. Rosario who had been to
the park frequently. See,
, Sandler v Patel
, 288 AD2d 459, 733 NYS2d 131 (2d Dept 2001).
Claimant was not a particularly forthcoming witness on whether he had actually
noticed the post-holes. At trial he said he had never walked across the field
when the field was not being used; it is unchallenged that the bases are
removed. In fact, his wife testified that, "I always noticed that...there's a
hole in the rug...it's a rug, it's not grass."
Furthermore, even had claimant been able to show that the subject condition was
an unsafe or dangerous one, and leaving aside the open and obvious issue,
claimant's case would still not meet his burden of proving that the condition
was the proximate cause of his fall and any resulting injury. Everything Mr.
Rosario testified to about the mechanics of his injury is quoted above. At no
point does he directly explain how the post-hole at home plate caused his
injury. He uses the image that his foot was "caught," but his own photo (cl exh
6, as well as def exh M) show, to this trier of fact, that it is too small to
catch a shoe, or any part of it, including the heel of his Florsheim shoe. Nor
is there any credible evidence that the slight ridge between the dirt square
surrounding the post-hole and the Astroturf caused claimant's injury.
In addition, claimant was not a sufficiently credible witness. Without
reaching the dispute over what appears in the records of Dr. Kostas Velis as to
how the accident happened (def exh C), Mr. Rosario's testimony was marked by
evasions and inconsistencies. At trial as noted, he said he had never walked
across the field when there was no game; when shown his statement indicating
otherwise (def exh A), he unconvincingly responded that he meant he had never
been on the field with his grandson. Then he was asked by way of follow up:
"Q. Sir, prior to March of 1996, did you ever walk through the field? A. Maybe
so but I don't remember."
In view of the foregoing, Ramon Rosario has failed to meet his burden of
proving by the fair preponderance of the credible evidence that the negligence
of the defendant State of New York caused his fall on March 25, 1996, and his
claim (no. 97921) is therefore dismissed. Any prior motion that has not
been ruled upon is hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
April 1, 2003
HON. ALAN C. MARIN
Judge of the Court of Claims
He had not worked at Riverbank State Park
until he became its deputy director, having moved over from the regional
See cl exhs 4 and 8; def exhs E and J.
The defendant's photographs in evidence were
taken well after Mr. Rosario's accident, on October 23, 2002, the day before the
trial, but nothing from claimant's case, including its photographs, is
inconsistent therewith as to how the area under home plate looked.
Note that claimant's photo does not look to
be home plate - - the imprint is of a square base, not the five-sided home
plate - - there is no evidence to suggest that the post-hole is not the same at
all four corners of the infield.