In June 1999, claimant commenced this claim alleging negligence and medical
malpractice. Specifically, he alleges that while playing basketball at Hudson
Correctional Facility [hereinafter Hudson] on August 1, 1997, he fell into a
depression surrounding the access cover to a water supply valve along the edge
of the basketball court [Verified Claim]. Claimant further alleges that he
sustained a broken right foot as a result of this incident, and defendant failed
to provide diligent medical care for his injury [
]. After a one-day trial, the Court dismisses the
Only two witnesses testified at trial, claimant and the nurse who attended to
his foot on the date of his injury. Claimant testified that while running during
an intra-prison basketball game, his foot got caught in a hole approximately
three inches wide and two inches deep
Claimant's testimony regarding what happened next is somewhat different from the
allegations contained in his claim. Specifically, although his claim indicates
that he was not examined by a doctor until August 4, 1997, three days after his
injury [Verified Claim], he testified that he went to the infirmary the night he
was injured and was seen by the doctor and nurse on duty. The nurse wrapped the
injured foot in an ace bandage and gave him crutches , and claimant believes
the doctor put in a request for X-rays . The next day, claimant returned to
the infirmary due to pain and swelling . He testified he received Tylenol and
was told he would be put in for X-rays. Ultimately, X-rays were taken on August
5, 1997  and, after two more doctor visits, he received a cast on August 21,
1997 [Verified Claim].
On cross-examination, claimant stated that he had played basketball for
approximately 23 years and was aware that playing basketball could result in
injury . Indeed, claimant testified that he had previously broken a bone
while playing basketball .
Claimant also admitted that he had played basketball at Hudson since arriving in
1996, and previously played on this particular basketball court.
In addition to his testimony, claimant offered several exhibits into evidence,
including a Report of Injury he completed when he went to the infirmary, and a
Report of Injury from nine other inmates injured on the same basketball court
prior to the date of his injury. Claimant failed, however, to offer any
evidence, other than his own testimony, regarding his injury. At the close of
claimant's proof, defendant offered the testimony of the nurse who attended to
claimant's injuries. She testified that claimant completed the Report of Injury
and signed his name. She also testified that she advised claimant to use the
crutches and not to put any weight on his injured foot.
With respect to his negligence claim, claimant argues that defendant breached
its duty to him, and that it had notice of the injury-producing defect due to
the injuries suffered by numerous other inmates. Defendant counters that the
alleged defect did not cause claimant's injuries and, even if it did, claimant
assumed the risk of such an injury by participating in the basketball
It is well settled that "landowners * * * owe a duty to exercise reasonable
care in maintaining their property in a reasonably safe condition" (
Soich v Farone
, 307 AD2d 658, 659 [3d Dept 2003]). To be liable, however,
a landowner must have actual or constructive knowledge of the defective
condition (see e.g. Morrow v Ashley
, 3 AD3d 619, 620 [3d Dept
2004]). To constitute constructive notice, "a defect must be visible and
apparent and it must exist for a sufficient length of time prior to the accident
to permit a landowner to discover and remedy it" (id.
, quoting, Gordon
v American Museum of Natural History
, 67 NY2d 836, 837 ).
Here, although the Court credits claimant's testimony that the basketball court
contained a hole near the access cover along the edge of the basketball court,
there is no evidence that defendant had either actual or constructive notice of
this condition. Although claimant attempts to establish actual notice by
submitting reports of injuries from nine other inmates on the same basketball
court, none of the injuries sustained by these inmates were caused by this
condition. Further, with respect to constructive notice, there is no evidence
that the condition was present for a sufficient time so that it should have been
discovered and remedied.
Next, even if the Court was to conclude that defendant had notice of the
condition, the Court does not credit claimant's testimony that this condition
caused claimant's injury. At trial, although claimant testified that he broke
his foot when his foot fell into the hole [12-13], he also testified that he did
not know what happened until another inmate told him . Even if the Court
considered this statement, which it does
claimant's Report of Injury does not support this version. In this report, made
almost immediately after his injury, claimant states that "he was chasing the
ball, stopped short and heard a pop in foot area" [Exhibit 1]. Thus, when the
incident was the freshest in his mind, claimant did not refer to the hole on the
basketball court. In any event, even if the Court determined that claimant's
injury was caused by the hole, claimant would still be precluded from
A landowner is relieved from liability "for inherent risks of engaging in a
sport...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 ). Thus, "[a] person
who elects to engage in a sport or recreational activity ‘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' " (Huneau v
Maple Ski Ridge, Inc
., 17 AD3d 848, __ , 794 NYS2d 460, 461 [3d Dept 2005],
quoting Morgan v State of New York
, 90 NY2d at 484.
Here, claimant, by his own account, an experienced basketball player, admitted
that he was aware he could be injured while playing the game and, indeed, was
previously injured while playing basketball. Further, the Court determines that
a depression around a water valve along the edge of an outdoor basketball court
is not the type of defect that is a ‘ "dangerous condition over and above
the usual dangers inherent in the activity' "
(Huneau v Maple Ski Ridge, Inc
, 17 AD3d 848, __ , 794 NYS2d 460, 461 [3d
Dept 2005], quoting Rios v Town of Colonie
, 256 AD2d 900, 900 [3d Dept
1998]). As such, claimant has not established by a preponderance of the credible
evidence (see Burgos v Aqueduct Realty Corp.
, 92 NY2d 544, 550
) that defendant breached its duty to him (see Morgan
NY2d at 485).
With respect to claimant's second cause of action, the Court is likewise
unpersuaded. To establish a medical malpractice claim, a party "must prove, by a
preponderance of the evidence, a deviation or departure from accepted medical
practice and that such departure was a substantial factor in producing
[claimant's] injuries" (
Valentine v Lopez
, 283 AD2d 739, 741 [3d Dept 2001]). Further, "expert
medical opinion is required to demonstrate merit as to matters not within the
ordinary experience and knowledge of laypersons" (Quigley v Jabbur
AD2d 398, 399 [3d Dept 1986]). Here, claimant offers no evidence, expert or
otherwise, that his treatment deviated from acceptable medical practice.
Additionally, while claimant testified that he did not receive X-rays until five
days after the incident or that he did not receive a cast for 20 days after his
injury, he offers no expert opinion that this exacerbated his injury.
Accordingly, claimant has also failed to carry his burden of proof on this cause
Inasmuch as claimant has failed to demonstrate by a preponderance of the
credible evidence that defendant was negligent or committed medical malpractice,
his claim is dismissed. All motions not heretofore ruled upon are denied.
Let judgment be entered accordingly.