New York State Court of Claims

New York State Court of Claims

DIAZ v. THE STATE OF NEW YORK, #2007-029-016, Claim No. 107723


State found 50% liable for gymnasium injury to inmate, based on knowledge of long-term water problem in gym.

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:
PEDRO DIAZ, pro se
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Dennis Acton, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 20, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at Shawangunk Correctional Facility, alleges that defendant was negligent in failing to adequately maintain the gymnasium floor at the facility, allegedly causing him to be injured while playing basketball.

Claimant testified he was playing basketball at about 9:00 a.m. on January 13, 2003 when he went up for a rebound and landed on an area of the floor where there was a “bubble” [1] in the floor – an air pocket between the top layer of the floor and the layer immediately below – about 1.5 inches deep. Claimant alleged that the problem with the gym floor was caused by water leaking through the ceiling and getting under the floor layers. He claimed that this had been a long-term problem in the gym, but he asserted that one could not see the areas where separation had occurred, and he specifically stated that the area where he landed looked normal.

John Tumminia, recreation supervisor at Shawangunk since 1986, testified on behalf of defendant. He agreed that the facility had experienced long-term problems with the gym floor, acknowledging “we have had blisters on the court which have caused an imbalance of the surface . . . it’s been a continuing problem.” He stated the problem was caused by moisture getting under the floor and that “since 1986 and through the 1990’s we have attempted to repair the floor and keep it playable.” The problem manifested itself as circular blisters about 1/4 inch high and three to four inches in width, generally appearing at one end of the basketball court in the “key” area (the area in front of the basket).

Claimant filed a grievance after the incident and in the disposition, the facility’s superintendent noted : “Numerous attempts to repair a “bubbling” condition on the gym floor have been made since 1990. The problem re-emerges after each repair.” [2] In a memorandum to the watch commander written two months after the subject incident, Tumminia wrote: “There is a ‘no zone’ designated area (with orange cones) in the gym located on the far side of the court, by which inmates should not enter or play active or stationary activities within the cones.” [3] This policy was not in effect when claimant was injured.

At the conclusion of trial, defendant moved for an order of dismissal arguing that defendant had no notice of the problem, that it was a de minimus defect in any event and that claimant did not establish a causal connection between the condition of the floor and his injury. The court now denies the motion and finds in favor of claimant on the issue of liability.

The testimony of defendant’s own witness established that defendant was aware of the problem for over a decade and that there is no issue of notice here. The court does not agree that what was described at trial constituted a de minimus defect. Whether the subsurface depression at issue here was 1.5 inches in depth, as testified to by claimant, of 1/4 inch in depth as testified to by Tumminia (or, most likely, something in between), any evaluation of whether the defect may be characterized as de minimus must necessarily take into account the context. A defect that might be held to de minimus on a walkway or sidewalk is not necessarily so on a basketball court where grown men are engaging in strenuous physical activity such as basketball, involving running, jumping and physical contact among the participants. [4] Given the activities that took place in the gym, the court finds that the condition described by claimant and Tumminia, and reflected in defendant’s documents, constituted a dangerous condition and that, in view of defendant’s conceded awareness of the condition, it was negligence to allow inmates to play basketball in the gym, or at least in the portion of the gym in which the problem was known to exist.

With respect to the question of causation, the court finds defendant and claimant equally responsible. Initially, the court finds that claimant’s injury was not the result of a risk which was “inherent in and [arose] out of the nature of the sport generally and flow[ed] from such participation” so as to relieve defendant from potential liability under the principle of assumption of risk. [5] The condition of the gym floor alleged by claimant, and confirmed by the testimony of defendant’s witness and correctional facility records, was not the result of a risk normally associated with basketball, such as would be the case, for example, where a player is injured by contact with another player or by falling on an overly slippery floor. The defect that resulted in claimant’s injury did not arise from any inherent risk but rather was the result of the failure to remedy the ongoing water problem and the failure to prevent athletic activity on the portion of the floor where the problem existed; these facts implicate ordinary negligence.[6]

Nevertheless, while claimant’s injury was not the result of a risk inherent in the activity, and the proof indicated he was not aware of the specific depression that caused his injury, the fact remains that he was aware that this problem existed generally and he made the decision to play basketball with such knowledge. [7] The court finds that his decision to do so demonstrated less than due regard for his own safety and constituted negligence that must be deemed an equal cause of his injury. Accordingly, damages will be reduced by 50%.

Proof with respect to damages was limited. According to the facility’s health records, a physical examination showed that claimant was unable to bear weight and had minimal edema, with no apparent circulatory deficit. He was diagnosed with a sprained ankle, Motrin and Percocet were prescribed, an ace bandage and air splint were applied and claimant was given crutches for a 72-hour period and instructed not to bear weight on the right ankle. X-Rays showed evidence of an old injury, no recent fracture or dislocation and mild soft tissue swelling. [8] There was no proof of any permanency or continuing sequelae arising from claimant’s sprained ankle.

The court finds that the sum of $500.00 constitutes due compensation for claimant’s injury. Applying the 50% reduction arising from claimant’s comparative fault, claimant is entitled to entry of judgment in his favor in the sum of $250.00. The Clerk of the Court is directed to enter judgment in accordance with this decision.

April 20, 2007
White Plains, New York

Judge of the Court of Claims

[1].Unless otherwise indicated, all quotations are from the court’s trial notes.
[2].Claimant’s Exhibit 2.
[3].Defendant’s Exhibit A.
[4].See Trincere v County of Suffolk (90 NY2d 976 [1997]), where the court held there was no minimum dimension test with respect to premises defects. To the contrary, whether a dangerous or defective condition sufficient to create potential liability existed depends on examination of all of the surrounding facts, including the “time, place and circumstances” of the injury (id., 978, quoting Caldwell v Village of Island Park [304 NY 268, 274 (1952)].
[5].Morgan v State of New York (90 NY2d 471, 484 [1997]), in which the court affirmed the continuing viability of assumption of risk as a complete defense in certain cases, finding that voluntary participants in athletic events assume the risks inherent in the sport. In its decision, which involved four separate cases joined for appeal, the court affirmed the dismissal of three of the cases on assumption of risk grounds but reversed the dismissal of an action based on the allegation that a torn tennis net was the cause of injury, noting that a torn or damaged net is not a risk inherent in tennis and that the plaintiff in that case should not be deemed legally to have assumed the risk of injury caused by it (id., 488-489).
[6].The Morgan court wrote, in reversing the dismissal of the case based on the torn tennis net: “because a torn net is not an ‘inherent’ part of the game of tennis in and of itself, [plaintiff] should not be deemed legally to have assumed the risk of injuries caused by his tripping over it. Our precedents do not go so far as to exculpate sporting facility owners of this ordinary type of alleged negligence” (90 NY2d 471, 488-489). This reasoning is equally applicable here.
[7].See e.g. Fairchild v J. Crew Group, Inc. (21 AD3d 523, 524 [2d Dept 2005]): plaintiff’s awareness of sidewalk defect “did not negate the defendant’s duty to maintain its premises in a reasonably safe condition, but rather, may raise an issue of fact as to the plaintiff’s comparative negligence.”
[8].Exhibit 1.