New York State Court of Claims

New York State Court of Claims

JOMARRON v. THE STATE OF NEW YORK, #2007-033-569, Claim No. 107041


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):

James J. Lack
Claimant’s attorney:
Mallilo & GrossmanBy: Jessica Kronrad, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney General
By: White, Fleischner & Fino, LLPBy: Daniel M. Stewart, Esq.
Third-party defendant’s attorney:

Signature date:
March 30, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This claim is brought by Jovany Jomarron (hereinafter "claimant") due to the alleged negligence of the defendant, the State of New York (hereinafter “State”). The alleged negligence occurred on July 29, 2001, at softball field 2, at Jones Beach State Park, Wantagh, New York. On October 26, 2006, a trial was held on the question of liability.
Claimant testified that he was invited by his friend to play softball on July 29, 2001. His friend played on a team that belonged to a league that played at Jones Beach State Park (hereinafter “Jones Beach”). While claimant had played softball many times before this date, he had never played at Jones Beach. Claimant arrived at the field at approximately 8:30 a.m. Claimant went to the bleachers on the first base side and began to get ready to play. On the bleachers, claimant put on his sweatpants and cleats and was talking to his friend Benny.[1] Claimant testified that no one told him about any rules for this particular field nor did he see any signs posted with rules for the field. After he was ready, at about 8:45 a.m., claimant went onto the field to warm up and practice before the game.

Claimant described the softball field as a typical ballfield surrounded by a fence. There was a gate in the fence adjacent to the right field foul area (hereinafter “right field fence”) and one in the fence adjacent to the left field foul area. Claimant saw three maintenance workers on the field when he got there. They were standing toward the outfield on the third base side of the field. According to claimant, the workers were not doing anything other than standing around. Claimant saw the workers from the time he got to the field until right before his accident. Claimant did not see any tractors on the field. On direct testimony, claimant stated that the bases were in place on the infield when he arrived in the morning. Claimant stated that the gate in the right field fence was closed at all times that morning.

Claimant took a position in right field facing into home plate when the team went on the field to warm up. The only sound claimant could hear was the crack of the bat when it hit the ball. Claimant testified that he could not hear anyone else talking, he did not hear the sound of a tractor, he did not hear anyone shouting, and he was not engaged in any conversation with his friend Benny. Benny was standing in right center field. Another member of the team was at home plate and hitting balls to fielders. Claimant had one ball hit to him which did not require him to move when he caught it.

While claimant was waiting for another ball to be hit to him, he looked around. The same three maintenance workers were standing along the left field line. Claimant did not see a tractor on the field and the gate in the right field fence was still closed. Finally, another ball was hit to claimant. He testified that he had to run directly to his left (not one step in or out). Claimant began to run as hard as he could, estimating that he was moving approximately 15 m.p.h. As claimant ran to the ball, his left hand was extended and he kept his eyes on the ball. Claimant could see to his left out of his peripheral vision. Claimant did not see anything to his left. In addition, claimant did not hear anyone who may have been shouting at him. As claimant ran toward the foul line in right field, he testified that a tractor drove into him.

Claimant states that he came into contact with the tractor approximately three times and was thrown into the air for six seconds, knocking claimant to the ground and causing him to drop the ball. Claimant came to rest on the ground and when he looked up he saw and heard a tractor. On direct, claimant testified the tractor drove into him. However, on cross-examination, claimant admitted that he never saw the tractor until he was laying on the ground. At this point, the tractor was stopped. Claimant admitted that he was unable to say that the tractor was moving.
Testifying on claimant’s behalf, was Benny Taormina (hereinafter “Taormina”), claimant’s friend and teammate. Taormina stated he arrived at the field at about 8:30 a.m. When he arrived he noticed two tractors on the field. The witness stated that he was aware that players were not allowed on the field while workers performed maintenance on the field. At trial, Taormina did not recall being told on the incident date not to go onto the field by the coach until the tractors left. However, on cross-examination, he acknowledged having previously testified his coach told players not to take the field until the tractors left. Taormina stated that one of the tractors left the field and he saw the other heading for the open gate in the right field fence, but he never saw it leave the field. At trial, Taormina testified that the bases were already in place. During cross-examination, his trial testimony was shown to conflict with his earlier deposition testimony. At his deposition, Taormina stated that the bases were not in place because it is easier for the tractor to drag the infield dirt without the bases in place.

The witness said he did not see the tractor anywhere on the field. He also could not hear it. The witness could not hear the bat striking the ball, but he could hear other people all around him. While practicing on the field, Taormina stated he was chatting with claimant.

Taormina and his teammates, including claimant, went onto the field to practice. Taormina testified he was in right center and claimant was in right field. According to the witness, claimant had successfully caught a ball and was waiting for another. When the ball was hit to claimant again, claimant had to go left to catch the ball. Taormina was watching claimant and saw him running with his left arm extended and his eyes on the ball. All of a sudden, Taormina saw claimant come into contact with a tractor near the right field foul line. The witness could not say whether or not the tractor was moving and said he never saw or heard the tractor until it came into contact with claimant. Taormina saw claimant get knocked off his feet and on the ground a second later.

Given the unavailability of Walton Bird (hereinafter “Bird”), the tractor driver, the parties submitted various portions of his deposition testimony into evidence. The Court has reviewed the testimony.

Bird was an employee of defendant on the incident date. It was his responsibility to ready the softball field for games on the date of claimant’s accident. Setting up the field takes anywhere from half an hour to an hour and twenty minutes. Part of his duties in setting up the field entail wetting the field if it is dry, dragging the infield dirt and setting up the bases after the field is dragged. In order to drag the field, equipment is attached to the back of the tractor and then dragged across the infield dirt and around home plate. The bases are placed after the field is dragged to make it easier for the tractor going around the infield. Bird began working for defendant in 1995 and worked there for eight years before leaving.[2] The witness was trained in the use of the tractors at Jones Beach.

On the date of the incident, Bird testified that he got to the field at approximately 7:30 a.m. Bird drove to the field in a truck on the incident date and someone else dropped off the tractor to him. The witness then set to putting all of his equipment onto the field. Bird was clear that the equipment he uses is placed inside the fence surrounding the field and the gates are open. The equipment is left near the right field fence and is retrieved from that location when needed. The witness testified that he took the tractor to the right field fence to retrieve the mat for dragging the field and the bases. Bird had not placed the bases in place yet because he had not dragged the infield.

Bird testified that he was going to get the equipment he needed and the bases and then drive them into home plate, where he would attach the equipment to the tractor. When Bird parked the tractor in right field near the equipment he noticed some players coming from the parking lot. Bird told the players that they were still not permitted on the field. According to Bird, these players went out to the left field area and were throwing the ball around. Bird retrieved what he needed and began to drive back toward the infield. As he began, Bird saw one of the players running across the field, trying to catch a ball. The player was watching the ball and was not looking where he was going. Upon seeing the player, Bird stopped the tractor and was yelling for the player to stop. The player never reacted to the tractor or Bird’s calls and ran into the tractor.

Helene Richardson (hereinafter “Richardson”) testified on behalf of defendant. She is the supervisor of permits for defendant at Jones Beach. A softball league must obtain a permit to play on the Jones Beach softball fields. Jones Beach imposes certain rules upon the league in order for them to maintain a permit. One of the rules (defendant’s Exhibit J, Rule 6) is that players are not permitted on the infield while maintenance work is being performed.

As the owner and operator of the park, the State’s duty is to use reasonable care in maintaining the property in a reasonably safe condition to prevent the occurrence of foreseeable injuries (Basso v Miller, 40 NY2d 233). The duty of care is limited by claimant's reasonable expectations under the circumstances. The defendant's obligation in such a situation is to make the premises as safe as they appear to be so that claimant can fully comprehend and see the risks which will be assumed (Drew v State of New York, 146 AD2d 847; see also, Walter v State of New York, 185 AD2d 536). A landowner has no duty to warn of an open and obvious danger that can be readily observed by the use of one’s senses (Tagle v Jakob, 97 NY2d 165); "[u]nder such circumstances, the condition is a warning in itself" (Tarricone v State of New York, 175 AD2d 308, 309).

According to Taormina, the only players allowed on the field to play were those that were registered in the league. The league that was playing at Jones Beach required ID cards (defendant’s Exhibit M). Admittedly, claimant was not a registered member of the team. Taormina and claimant decided that playing in this game as an unregistered player was going to be claimant’s tryout for the team. Jones Beach was permitting the league to play with a permit. Thus, it established a duty to the league. As a non-league player on the incident date, claimant failed to establish defendant owed him a duty.

Even in the event that claimant could prove defendant owed him a duty, the Court does not find a breach of its duty. Given the opportunity to listen to and observe claimant and Taormina testify, the Court lends little credibility to their version of the events on the incident date.

Taormina knew that his team was not to be on the field while maintenance was being done, yet he, his teammates and claimant went onto the field without making sure that all maintenance was completed. The Court gives credit to Bird’s testimony that the bases were not in place, which is also what Taormina stated at his deposition.

At times, Taormina’s trial testimony seemed at direct odds with his deposition testimony. Any prior testimony which was not favorable to claimant’s case, seemed to be forgotten by the witness. In examining one conflict, Taormina’s coach told the team not to take the field when they did. At trial, Taormina did not recall such instruction by the coach.

Claimant’s and Taormina’s testimony as to the phantom existence and appearance of the tractor is another detracting factor from their credibility. Claimant who was with Taormina never saw any tractors at all, while Taormina saw two tractors. However, once on the field neither claimant nor Taormina saw a tractor. Claimant did not see a tractor until after he ran into it. Taormina did not see the tractor (even while claimant was running at it) until it somehow magically appeared in this muggle[3] world the instant before claimant ran into it. Claimant could hear the crack of the bat at home plate, but could not hear the other people talking, the motor of the tractor or the words directed to him by Taormina.

Just prior to claimant’s accident he looked around and there was not a tractor in sight anywhere, three maintenance workers were on the left field line doing nothing and the gate of the right field fence was closed. Yet miraculously, while claimant was achieving his top speed of 15 m.p.h., a lazy worker found a stealthy tractor, opened the gate and achieved a greater speed to get on the field and hit claimant before he covered 20 feet. Claimant’s testimony is incredible on its face.

It is clear that maintenance was running late on the incident date and the players were anxious to play. However, the lateness of the maintenance does not give the league the right to cut the maintenance short. The players, including claimant, were attempting to play around the maintenance worker. The Court finds no credit that claimant’s team was conducting batting and fielding practice using the infield. Rather, the Court credits Bird’s testimony that claimant was one of the players in the left field area having a catch and was running his way to catch up to the ball. Bird had just told the players not to take the field and they did anyway. According to Bird, he told the players not to go onto the field and then he went to get the tractor, drag mat and bases to go to the infield. Bird was just turned around and heading back to the infield when the accident occurred. The Court finds this based on the testimony of the equipment location and the accident location. A tractor, operating on a ballfield is a very open and obvious condition that can be readily observed or heard. The Court will not attribute liability to defendant when claimant should not have been on the field, or could have easily avoided a large (defendant’s Exhibits K and L) and loud tractor.

Based upon the foregoing, the Court finds in favor of defendant and dismisses the claim. All motions not specifically ruled upon are denied.

Let judgment be entered accordingly.

March 30, 2007
Hauppauge, New York

Judge of the Court of Claims

[1].While claimant and Benny had been friends for a number of years, claimant was not sure how to pronounce Benny’s last name.
[2].At the deposition, there was some confusion by both counsel and the witness in using 1985 as opposed to 1995 - both years seemed to be used interchangeably. Given that the accident occurred in 2001 and there is no question Bird was the operator of the tractor (defendant’s Exhibits B, C, D and F), the Court finds Bird was employed by defendant from 1995 to 2003.
[3].The term “muggle” refers to non-magical people as defined by J.K. Rowling in the Harry Potter book series.