New York State Court of Claims

New York State Court of Claims

POLLOCK v. THE STATE OF NEW YORK, #2004-028-534, Claim No. 106095, Motion No. M-67325


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:
Defendant's attorney:
BY: Michael C. RizzoAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 6, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion for summary judgment pursuant to CPLR 3212:

1) Notice of Motion and Supporting Affidavit of Assistant Attorney General Michael C. Rizzo (Rizzo Affidavit) filed with annexed Exhibits

2) Affirmation in Opposition of Craig J. J. Snyder, Esq. (Snyder Affirmation) filed with annexed exhibits A-C[1]

3) Reply Affidavit of Assistant Attorney General Michael C. Rizzo (Rizzo Reply)

Claimant asserts that he was injured as a result of the Defendant's negligence when it failed to properly supervisor an intramural flag football game and failed to provide protective equipment to players. Defendant has moved for summary judgment asserting the doctrine of assumption of risk bars this claim.

The following recitation of facts is based upon the Court's review of the papers submitted in connection with the instant motion. On September 9, 2001, Claimant was injured when he collided with a teammate as each pursued the ball carrier in a game of flag football. The game was being played on an 80 yard long field at Greene Correctional Facility (Greene CF) between two inmate teams. Greene CF ran an intramural flag football program with teams having a 16 to 20 game schedule as part of its recreational program. Participation was voluntary. Games were comprised of two 30 minutes halves and were supervised by a civilian recreation staff member and a corrections officer. Inmate referees, who completed a training course, officiated the games. A game crew was comprised of a referee, a timekeeper and a score keeper. The on-field team was comprised of eight players and as many as 12 additional players were on a team. Each team's substitute players were assembled along the same sideline. There was a written set of rules for flag football. Blocking was limited to contact between the waist and shoulders. The use of a straight arm - either to push a tackler's hand or the tackler himself away from the ball carrier - was prohibited. There was to be no head contact and players were prohibited from leaving their feet. There were penalties for rule violations. Players were provided no protective equipment or uniforms. A "tackle" was made by removing a flag that was attached by velcro to a belt worn around the waist.

On the day of the accident, Claimant was in his second season playing flag football with the "G dorm" team, which had won the league championship the prior year. He had played the positions of quarterback, wide receiver and defensive back. On the day of the accident, Claimant had played defensive back and wide receiver. At the time of the accident, Claimant was playing a defensive back position. Claimant did not consider the game as being overly rough although he believed the referee missed a couple of calls. There had been no prior altercations between the teams. Claimant was injured early in the second half of the game. Although Claimant has no recollection of the contact which resulted in his injury, he does recall pursuing the quarterback as he rolled out to the right and seeing someone coming at him as he reached for the flag to make the tackle.

Recreation program leader Gerry Ersken (Ersken), a civilian employee of New York State Department of Correctional Services (DOCS), supervised the flag football game on September 9, 2001[2]. After setting up the field for play, Ersken supervised the game from a chair located in front of the backstop[3]. From this vantage point he had a good view of the field although his view to the farthest end of the field might have been impeded. Ersken also brought work related reading materials out to the field with him that day. He was unaware of any rivalries or animosity between the teams playing that day. It was Ersken's understanding that the rules of flag football prohibited padding or wraps as a way to eliminate excessive contact. Ersken included within the ambit of excessive contact any contact which was intended to injure another player. As supervisor, Ersken would occasionally become involved in a game if he felt the rules were not being enforced correctly or to settle a dispute over a rule interpretation. In his tenure at Greene CF, Ersken never observed a head or facial injury in a flag football game. Ersken observed Claimant being injured when he collided with another player, whom Ersken believed was inmate Rambharose, a teammate of Claimant. From Ersken's vantage point, it appeared Rambharose was attempting a tackle and did not intend to run into Claimant. During the game Ersken gave out one warning for tackling during the game.

Inmate Robert Davis, the ball carrier at the time of Claimant's injury, offered an affidavit containing his opinion that if the recreation supervisor had paid closer attention to the game and was not reading a book, the game would not have gotten so rough. Davis stated that he had been tackled at least once. He further stated that Claimant's injury occurred when a teammate ran into Claimant with his head down while trying to "clothesline" Davis.

The rule governing summary judgment is well established: "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 NY2d 851, 853), and such showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562). Summary judgment should not be granted where there is any doubt as to the existence of a material issue of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; St. Lawrence County Dep't of Soc. Servs. v Genevieve VV, 2002 NY App Div LEXIS 12681[Third Dept., December 26, 2002]). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776). Once the proponent of the motion has established its entitlement to judgment, the burden shifts and the party in opposition to a motion for summary judgment "must assemble and lay bare affirmative proof to establish that the matters alleged are real and capable of being established upon a trial" (Izzo v Lynn, 271 AD2d 801, 802; see also Hasbrouck v City of Gloversville, 102 AD2d 905, affd 63 NY2d 916).

Pursuant to the doctrine of assumption of risk, an injured party may not seek compensation when the injuries in question were incurred as the consequence of some risk or danger normally associated with a pursuit which was voluntarily undertaken. Thus, when it is shown indisputably that a particular injury was caused by a condition or practice which is common to a particular sport (e.g. Turcotte v Fell, 68 NY2d 432, [one racehorse accidentally running into another]; Maddox v City of New York, 66 NY2d 270, [baseball field wet and muddy after rain]) or those associated with any open and obvious defect or obstacle in the place where the sport is played (e.g. Ward v State of New York, Ct Cl, Fitzpatrick, J., UID No. 2002-018-163, Claim No. 101210, August 27, 2002 [colliding with bleachers chasing overthrow]; Ciocchi v Mercy College, 289 AD2d 362 [badminton pole stored in corner of gymnasium]) assumption of risk will preclude recovery.

Defendant, through Claimant's deposition testimony, has established that the Claimant was an experienced flag football player who voluntarily participated in the flag football at the correctional facility. Defendant further established that the injury occurred when two players collided while attempting a "tackle". On Defendant's proof, it can not be said that a collision between teammates while pursuing a ball carrier in the field of play, even in a flag football game where contact is limited, was outside the risks assumed by Claimant (see Vega v County of Westchester, 282 AD2d 738 [a voluntary participant in the sport of ice skating assumed the risk of a sudden collision with other skaters]; see also Regan v State of New York, 237 AD2d 851 [The risk inherent in the sport of rugby is apparent, as is the risk inherent in football, basketball, lacrosse and other sports that involve contact]). Thus, Defendant has established entitlement to summary judgment thereby shifting the burden to Claimant to raise a triable issue of fact in order to avoid dismissal of his claim.

Claimant resists summary judgment by suggesting the game was improperly supervised - heightening the risk of injury and/or that the Defendant failed to provide adequate safety equipment[4].

Assuming arguendo the accuracy of Davis' statement that the player who collided with Claimant was attempting to make an illegal "clothesline tackle" of Davis[5], there is no evidence that Claimant's own teammate was attempting to injure Claimant. Rather, a risk existed that two players would collide as they converged on a running back, a risk which the Court finds to be an ordinarily assumed risk in any game of football. Nor does Claimant raise a triable issue of fact that teammate Rambharose's conduct created a dangerous condition over and above the usual dangers inherent in the game (see Lumley v Motts, 1 AD3d 573). An illegal play, without more, does not constitute an exception to the doctrine of assumption of risk (see Barton by Barton v Hapeman by Hapeman, 251 AD2d 1052). Lastly, Claimant fails to raise a material issue of fact that the supervision provided by Ersken was inadequate. The evidence adduced demonstrated that Ersken was able to observe the play and had, when necessary, stepped in to control the game. Moreover, the Claimant did not view the game that day as involving conduct which would have warranted an excessive contact penalty (cf Nunez v Recreation Rooms & Settlement, 229 AD2d 359). There is no requirement that the Defendant provide unremitting supervision of inmates in a correctional facility but rather the duty is one of reasonable supervision (see Schindler v State of New York, Ct Cl, Corbett, J., Claim No. 96692, UID No. 2001-005-006). As such Claimant has failed to raise a material issue of fact to preclude summary judgment.

For the foregoing reasons, Defendant's motion for summary judgment is GRANTED and Claim No. 106095 shall be and hereby is dismissed.

May 6, 2004
Albany, New York

Judge of the Court of Claims

[1] Exhibit B is the affidavit of Davis, the ball carrier.
[2] In addition to supervising the games, Ersken assigned the inmate officials to each game.
[3] This location placed the backstop and the off field players between Ersken and the field of play.
[4] Claimant has failed to adduce any evidence in support of his argument that protective equipment was necessary in flag football or that a particular piece of equipment would have prevented and protected Claimant from his injuries suffered on the field of play.
[5] Football players and fans know a "clothesline tackle" to consist of taking the ball carrier down by allowing him to run straight into the defensive player's outstretched arm making contact with the ball carrier's neck and/or head.