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."
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."
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,
No other witnesses testified and no other relevant
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).
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
, 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
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
, 255 AD2d 487, 488 (2d Dept 1998); See also Green v City of
, 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
quoting Turcotte v Fell
, 68 NY2d 432 (emphasis in
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
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.