New York State Court of Claims

New York State Court of Claims

PERKINS v. THE STATE OF NEW YORK, #2004-030-041, Claim No. 106336


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:
Third-party defendant's attorney:

Signature date:
November 18, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Shawn Perkins, the Claimant herein, alleges in Claim number 106336 that he was injured while playing basketball because of Defendant's negligent failure to maintain a basketball court at Green Haven Correctional Facility (Green Haven).

Claimant testified that on June 3, 2002 at approximately 7:30 p.m. he was playing basketball in the West Yard of Green Haven in a tournament run by the facility when he slipped in the out of bounds area because of a height differential - or step - between the court itself and the main court. This step measured "3 to 4 inches."[1]
Claimant explained that he was "grabbing a rebound off of the backboard when [his foot landed] on the edge of the court where this step is. One foot slid off and because of this the other foot buckled an . . . [his] ankle was dislocated at that time."
Claimant said that the facility was aware of the "existing problem" in the court "four years prior to this incident, and there were numerous work orders requested but nothing was done to remedy the situation." In a memorandum Claimant submitted, dated July 31, 1998, apparently written in response to another inmate's letter, "G. Haponik, DSA" writes "Be advised that dirt is on order and shall be spread around the basketball court in the A & B yard as soon as is feasible." [Exhibit 6]. Another internal memorandum, dated January 17, 2001, that appears to memorialize the discussion of various issues in the facility between inmate representatives and the Superintendent notes ". . . It has been brought to the ILC attention that the basketball and handball courts throughout the facility are in desperate need of being repaired. Their have been quite a few injuries due to holes in pavement in these areas, etc. The ILC request that these repairs be done immediately to cut down on the injuries that have been occurring." [Exhibit 3]. In the Superintendent's response in that same document it is indicated ". . . that he is aware of the situation and that contractors have been in to evaluate and give an estimate of the costs. The costs of repairs are very high and he is looking for assistance from the inmate population to make the repairs."
[See Id].
Claimant said that because of his injury he experiences "pain on stormy days, and is unable to fulfill his workout routine," and that he wants damages to provide him with some funds for when he gets out of prison. He argued that the memoranda admitted show that there was a general awareness that the basketball courts were in bad shape.

On cross-examination, Claimant agreed that the basketball court at issue was an outside one, without any structural protection from the elements. The court itself is surrounded by dirt, that is walked on by inmates. Claimant agreed that the surrounding dirt had eroded, and that the condition was clearly visible on the day of his accident. He also conceded that he was aware of the change in elevation between the basketball court surface and the surrounding area, and that he nonetheless elected to play basketball on the date of his accident. There were areas where the transition from the court surface to the dirt area was level, and areas where there was a height differential of up to 3 inches. Claimant said that the area was "somewhat lit up" for the nighttime game because of lights in the surrounding buildings. He stated that there were times that is was sometimes difficult to see at night, but he could not say whether he had a problem seeing on that night. He agreed that he was aware of the height differential in some places - including the place where he fell - between the court and the surrounding area as he was playing basketball on June 3, 2002.

No other witnesses testified and no other relevant evidence[2]
was admitted.
Although the State has a duty to protect inmates from foreseeable risks of harm, it is not the insurer of inmate safety. Its duty is to exercise "reasonable care under the circumstances . . ." [
Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. Assuming that the State did not create the dangerous condition, a Claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual notice. Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 (1st Dept 1984), affd 64 NY2d 670 (1984). With respect to constructive notice, any ". . . defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit . . . [a defendant] to discover and remedy it . . . (citation omitted)." Gordon, supra, at 837.
Additionally, ". . . by engaging in a sport or recreational activity, a participant consents to those 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, 90 NY2d 471, 484 (1997), including risks due to "open and obvious defects in the construction of the playing field, as long as the participant is aware of the risks and appreciates the nature of the risks . . . (citations omitted)." Greenburg v Peekskill City School Dist., 255 AD2d 487, 488 (2d Dept 1998); See also Green v City of New York, 263 AD2d 385 (1st Dept 1999); Cross v State of New York, Claim No. 95789, UID 2000-013-511(Patti, J., September 12, 2000). " ‘[A]ssumption of risk is not an absolute defense but a measure of the defendant's duty of care . . . " Morgan, supra 483-484, quoting Turcotte v Fell, 68 NY2d 432 (emphasis in original).
Claimant's allegation of negligence is that a known defect - specifically a height differential where the basketball court meets the dirt covered out of bounds area - caused him to slip while playing basketball.

Claimant has not submitted proof that the defendant had actual or constructive notice of this defect at the time of his accident. Additionally, the condition of the court itself is one of those apparent features contemplated as inherent risks of participation in the sport. If one is playing on a court located outside, it may well be that parts of it will be damaged. Given the dirt base of the surrounding area - a clearly visible feature - natural erosion caused by the elements might create height differentials between the court and the surrounding area.

There was some evidence that there were surface problems with the basketball courts over different periods of time, for example, in 1998 dirt was to be spread around the court according to the memorandum responding to an inmate's complaint. [See Exhibit 6]. Then again in January 2001, there was discussion of the need to repair the basketball court with respect to holes in the pavement. [See Exhibit 3]. There was no direct evidence - other than Claimant's testimony - that these defects were either not remedied at the time, or were pertinent to the condition he alleged caused his fall and ultimate injury. There is no discussion of height differential issues in these memoranda.

Moreover, even if the irregular dirt levels created a dangerous condition, it was an open and obvious one about which the Claimant was thoroughly aware. Although the Court finds that Claimant presented as a credible individual, and sympathizes with the pain he must have suffered at the time, and his present frustration concerning his health and ambitions for his future, he was nonetheless proceeding in the face of a known hazard. Under these circumstances, no liability attaches.

Accordingly Claim number 106336 is dismissed in its entirety.

The Chief Clerk is directed to enter judgment accordingly.

November 18, 2004
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.
[2] Although a memorandum dated December 4, 2002 from Claimant to the facility FOIL officer - requesting documentation of work orders concerning the "east side/west side basketball courts surrounding area" - was admitted, it has no probative value or relevance to this Claim because, among other reasons, it postdates the accident. [Exhibit 1].