New York State Court of Claims

New York State Court of Claims

VAN HOUSEN v. THE STATE OF NEW YORK, #2004-009-127, Claim No. 102250


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
BY: Joseph P. Stanley, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Christopher Wiles, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
March 15, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

This is a claim for personal injuries suffered by claimant, who was injured while participating during practice as a member of the track team at the State University of New York at Cortland ("SUNY Cortland").

The uncontradicted evidence at trial established that on January 24, 2000, at approximately 4:00 p.m., claimant was running with other members of the track team at practice on the indoor track at Lusk Field House at SUNY Cortland. Claimant, a sprinter, was warming up with four other members of the track team, running on the inside lanes. Other members of the track team (distance runners) were utilizing the outside lanes. At the time, the entire inside of the track was surrounded by safety netting. Members of the shot put team, when warming up, would commonly throw the shot against this safety netting at the south end of the track. When the incident occurred, claimant was running on the inside portion of lane one, and as he rounded the south end of the track, he was struck in the head by a shot which had been thrown against the safety netting. Evidence established that although the safety netting "caught" the shot, the force of the thrown shot caused the netting to move into the running lane, where the impact with claimant occurred.

Although claimant has no recollection about anything which occurred on this day, the incident was witnessed by the other members of the track team who were running with claimant at the time. At the time of the incident, claimant was 24 years of age and in his third year as a member of the indoor track team at SUNY Cortland.

Claimant contends that the State breached its duty of reasonable care in the operation of Lusk Field House by installing and operating a netting system which was not intended for, nor safe for, shot put practice.

It is well-settled that a landowner has a duty to maintain its property in a reasonably safe condition (
Basso v Miller, 40 NY2d 233), and as a landowner, the State is subject to the same standard of care that applies to private landowners (Preston v State of New York, 59 NY2d 997). The State, therefore, has a duty to maintain its property "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk." (Basso v Miller, supra at 241). This duty extends to the State's operation of its athletic facilities (see, Valentine v State of New York, 192 Misc 2d 706).
When applying this duty of care to accidents suffered by voluntary participants in competitive athletic activities, however, the doctrine of "primary assumption of risk" must first be considered. This doctrine is best described that by electing to participate in such activities, the athlete has consented "to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation." (
Turcotte v Fell, 68 NY2d 432, 439). The doctrine of primary assumption of risk "is intended to facilitate free and vigorous participation in athletic activities," (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657), and if found, it completely bars any recovery against the defendant/owner (Turcotte v Fell, supra). An owner may therefore be relieved from liability for injuries suffered by a sports participant when "a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks." (Morgan v State of New York, 90 NY2d 471, 484). Those risks assumed, however, must be "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, supra).
It is defendant's contention that claimant is barred from any recovery in this action under this doctrine of primary assumption of risk. There is no dispute that claimant, a participant of the track team with three years of experience who practiced in the Lusk Field House on almost a daily basis, was aware that shots were thrown against this safety netting during practice. According to defendant, therefore, the risks of participating in track at Lusk Field House were apparent and appreciated by him.

Under the facts presented in this case, however, the Court does not find that the risk of being struck in the head with a thrown shot while running on a track during practice is "inherent" to the sport of track, but rather that such a risk "is not sufficiently interwoven into the assumed inherent risk category." (
Morgan v State of New York, supra, at 488). The Court therefore finds that the doctrine of primary assumption of risk does not apply to these facts, and that claimant did not legally assume the risk of injuries suffered in this incident so as to relieve the State from its reasonable duty of care. Liability, if any, must therefore be determined under typical negligence principles, including comparative negligence under CPLR § 1411.
At trial, William Steiner, a consultant with J-Pro Sports in Indiana, testified for claimant. Mr. Steiner was the owner of the company (subsequently purchased by J-Pro Sports) that manufactured the safety netting which had been sold to SUNY Cortland and installed in Lusk Field House. The netting apparently was installed in 1988, and consisted of four separate sections. One section of the netting (the east section, which was not the section involved in this incident), was different from the other three sections, since it had been specifically designed for golf ball hitting. The other three sections were of a mesh design with weights at the bottoms, but without permanent anchors. Mr. Steiner testified that this type of netting was used to return items such as tennis balls, basketballs, and volleyballs, but that these sections were not intended for the shot put, since the mesh netting could move (because it was not anchored at the bottom), and was not strong enough to stop an item as heavy as a shot.

Larry Czarnecki, the Assistant Shot Put Coach at the time of this incident, testified that he has previously tested the stability of this netting for shot put practice, and found it to be adequate and strong enough to withstand the impact of a thrown shot. He testified that it was common practice for members of the shot put team to warm up, by throwing the shot against the netting at the south end of the track. Mr. Czarnecki further testified that for safety reasons he had instructed members of the track team to stay out of the inside lanes (lanes one and two) when shot putters were warming up and using the safety netting. He testified, however, that he was concerned that a shot, once it struck the net and fell to the floor of the field house, could possibly roll out from under the netting and onto the inside lanes, but that he did not have any concerns that a thrown shot might actually strike a runner.

Mr. Czarnecki also testified that he gave verbal instructions to members of the track team to stay out of lanes one and two during warm ups while the safety netting was down. Mark Cerrone, a member of the track team who was directly behind claimant when he was struck by the shot, confirmed that he, and other members of the track team, had been given these instructions by Mr. Czarnecki. Despite such warnings, however, Mr. Cerrone was running in lane one directly behind claimant at the time of this incident, establishing to this Court's satisfaction that neither Mr. Cerrone nor the other members of the track team who were warming up in these lanes paid any attention to these warnings. Furthermore, the fact that there were at least five members of the track team running in these lanes at the time of the incident confirms that the verbal warnings, if given, were not enforced.

Michael Tavani, a student at SUNY Cortland at the time of the incident, was the member of the track team who threw the shot that struck claimant. He testified that shot putters had been told that they could throw the shot into the net during practice, and were never told that doing so could potentially create a danger for those runners using the track. He therefore did not pay any attention to runners when he was making his warm up throws.

Based on the testimony adduced at trial, the Court finds that the safety netting present at Lusk Field House was neither intended, nor safe, for use in shot put practice. Furthermore, the Court finds that the decision to utilize the netting for shot put practice was made without any informed or qualified study, without regard to the safety of runners utilizing the track. Finally, the Court also finds that any warnings given to participants of the track team were inadequate and obviously, not enforced. Based on the foregoing, the Court finds that the State breached its duty of care owed to claimant in this matter, and that such breach was a proximate cause of the injuries suffered by him. The State must therefore respond in damages.

However, even though this Court previously determined herein that the State could not escape liability under the doctrine of primary assumption of risk, it must now consider the comparative negligence, if any, of the claimant under CPLR § 1411. As previously indicated herein, at the time of this incident, claimant was a senior at SUNY Cortland, and in his third year as a member of the indoor track team. During the indoor track season, claimant routinely and regularly practiced inside Lusk Field House. Claimant was aware, as were other members of the track team who testified at this trial, that during practice, shots were thrown against the safety netting at the south end of the track. Admittedly, claimant was not paying attention to what was going on around him while he was running, and therefore he must be held proportionally accountable for the incident and his resulting injuries.

After due consideration and a review of all the evidence presented at trial, the Court finds that liability should be apportioned 60% against the defendant State of New York and 40% against the claimant.

Any motions not heretofore ruled upon are hereby denied.

The Clerk of the Court is hereby directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for trial on the issue of damages as soon as practicable.


March 15, 2004
Syracuse, New York

Judge of the Court of Claims