New York State Court of Claims

New York State Court of Claims

LOPEZ v. STATE OF NEW YORK, #2003-018-247, Claim No. 103675


Synopsis


The Court granted defendant's motion to dismiss based upon claimant's assumption of the risk of being injured during a softball/baseball game by sliding into a base.

Case Information

UID:
2003-018-247
Claimant(s):
HERIBERTO LOPEZ
Claimant short name:
LOPEZ
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103675
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
HERIBERTO LOPEZPRO SE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 24, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant seeks damages for injuries he sustained during a softball or baseball game on June 4, 2000. Claimant was an inmate at the Watertown Correctional Facility (Watertown) at the time.

At trial claimant testified that on the day in question, he was playing baseball or softball with a group of inmates at the facility. While sliding into second base, claimant's leg caught in what he believed was a depression. He heard a loud snap, felt heat and pain, and when other inmates came to check on his condition, he told them he thought he had broken his leg. Although he said he could walk at the time, he was taken on a stretcher to the facility infirmary and then transported to a hospital in an ambulance for surgery on his, apparently, broken leg. The incident occurred in the afternoon at approximately 2:40 p.m.

Claimant testified further that he had surgery on his leg, he had ten screws inserted, one through his bone, and has been provided with orthopedic shoes. His leg swells regularly, and he cannot walk for long periods of time. Claimant further complained of the medical treatment he received; however, that was not contained in the claim, and the Court will not consider any allegations of improper or inadequate medical treatment.

On cross-examination, claimant reiterated that the game had been going on all afternoon; he had played on that field numerous times before, and he participated voluntarily in the activity. Defendant moved to dismiss after the close of claimant's case on the grounds of assumption of the risk which was raised in its answer as the fourth affirmative defense. Although claimant made a very cogent argument how assumption of the risk may be qualified in certain ways, and therefore, is not a complete defense; the Court finds in this matter that the claimant did assume the risk of playing. Sliding into a base and being injured is one of those risks that would be assumed in playing a sport such as softball or baseball; and that under these circumstances, it is a complete defense to the State's liability. Therefore, Defendant's motion to DISMISS claimant's case at the close of claimant's case is hereby GRANTED.

In addition, the State called Scott Hanson, who was employed on the date in question at Watertown, as a deputy fire and safety officer. He fully investigated the accident within minutes after the claimant was taken from the field. He also was the photographer for exhibits two and three. It was Officer Hanson's opinion that there were no hazards on the field and the field was in good condition. The Court would find that after all the evidence was considered, in addition to claimant assuming the risk, there was no defect of any type in the field that could be considered the proximate cause of claimant's injury and therefore would dismiss the case after close of all the evidence.

LET JUDGMENT BE ENTERED ACCORDINGLY.


September 24, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims