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
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
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
). 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
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
, 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.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY