New York State Court of Claims

New York State Court of Claims

MORRIS v. STATE OF NEW YORK, #2007-037-031, Claim No. 106569, Motion No. M-73718


Case Information

DALE J. MORRIS, Individually and as Parent and Natural Guardian of STEPHANIE MORRIS, an infant
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:
Burden, Gulisano & Hickey, LLC
By: Donna L. Burden, Esq.

Hurwitz & Fine, P.C.By: V. Christopher Potenza, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Wilson, Elser, Moskowitz, Edelman & Dicker, LLPThomas M. Witz, Esq.
Third-party defendant’s attorney:

Signature date:
July 30, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following were read and considered with respect to Defendant’s motion for summary

1. Notice of motion and supporting affirmation of Thomas M. Witz, Esq., dated July

23, 2007,[1] with annexed Exhibits A-E;

2. Defendant’s supporting memorandum of law, dated July 12, 2007;

3. Opposing affidavit of Donna L. Burden, Esq., sworn to July 18, 2007;

4. Opposing affidavit of Scott Burton, sworn to July 18, 2007, with annexed Exhibits


5. Claimant’s opposing memorandum of law;

6. Reply affirmation of Thomas M. Witz, Esq., dated July 23, 2007.

Filed papers: Claim filed September 3, 2002; Answer filed April 30, 2007.

This is an action for personal injuries arising out of an incident which occurred on July 16, 2001 when then fifteen year old Stephanie Morris was injured when she was hit on the head by a soccer goal which she and other children of similar age were moving at the direction of the coach of the soccer goalie camp she was attending at State University College at Buffalo. Defendant moves for summary judgment alleging that Defendant did not breach a duty owed to Claimants, and further alleging that Claimants have no claim for negligent supervision as there was adequate supervision and no amount of supervision could have prevented the accident.

On a motion for summary judgment, the Court is called upon to determine whether a bona fide issue of fact exists. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The Court must review the submissions in the light most favorable to the party opposing the motion (Robinson v Strong Mem. Hosp., 98 AD2d 976 [1983]). Summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Initially, Defendant argues that it did not breach its duty to make the premises as safe as they appear to be, and that the infant Claimant assumed all risks inherent in the sport of soccer including the risk of moving the soccer goal. In its proprietary function the State owes a duty to participants in sporting activities to make the conditions as safe as they appear to be (Morgan v State of New York, 90 NY2d 471 [1997]). While not an absolute defense, assumption of the risk in athletics is a measure of the State’s duty of care (Turcotte v Fell, 68 NY2d 432 [1986]). The risks assumed by the participant include those risks inherent in and which arise out of the nature of the sport or recreational activity, including any obvious conditions involved in the playing field (see e.g. Colucci v Nansen Park, 226 AD2d 336 [1996]; see also Cook v Komorowski, 300 AD2d 1040 [2002]). “If the risks of the activity are fully comprehended or perfectly obvious, [the infant Claimant] has consented to them and defendant has performed its duty” (Morgan, 90 NY2d at 484, quoting Turcotte, 68 NY2d at 439). The Defendant is relieved from liability once it is established that the participant was aware of the risks, appreciates those risks, and voluntarily assumes them (Morgan, 90 NY2d at 484).

Here, however, the infant Claimant was not injured while engaged in a game of soccer or while participating in one of the goalie exercises taught at camp. Nor was she injured due to any condition in the playing field. Rather, she was injured while moving a soccer goal with other similarly aged children to be stored for the night. Questions of fact exist as to whether the moving of soccer goals is part of the soccer culture as Defendant argues and if Claimant fully appreciated and assumed all risks involved in moving the goal. Questions of fact also exist as to how the incident occurred and even as to how many children were involved with moving the goal at the time of injury. Under these circumstances, it simply cannot be concluded as a matter of law that Defendant is entitled to summary judgment.

Defendant further argues that the infant Claimant has no claim for negligent supervision as Defendant supervised the moving of the soccer goal and as no amount of supervision could have prevented the incident. This argument too must fail as numerous questions of fact exist as to how the incident occurred, how many students were involved, the propriety of the instructions and the sufficiency of the supervision (see e.g. Driever v Spackenkill Union Free School Dist., 20 AD3d 384 [2005]; Baker v Briarcliff School Dist., 205 AD2d 652 [1994]).

Summary judgment is a drastic remedy that should be employed only when it is clear that no triable issue of fact exists (Zuckerman v City of New York, 49 NY2d 557 [1980]; Lebanon Val. Landscaping v Town of Moriah, 258 AD2d 732 [1999]). The proponent of such a motion must establish sufficient evidence to eliminate any material issues of fact and to establish summary judgment as a matter of law (Tiano v Lane, 260 AD2d 908 [1999]). If the proponent fails to make a sufficient showing, the motion must be denied “regardless of the sufficiency of the opposing papers” (Winegrad, 64 NY2d at 853). The Court is not convinced that Defendant has met its threshold burden of proof. Thus, it is not necessary for the Court to review or consider the sufficiency of Claimants’ proof or the propriety of their expert affidavit as the burden of proof never shifted to them. Accordingly, it is hereby

ORDERED, that Defendant’s motion for summary judgment (M-73718) is denied in its entirety

July 30, 2007
Buffalo, New York

Judge of the Court of Claims

[1]. Originally, Mr. Witz filed and served an unsworn affidavit in support of Defendant’s motion for summary judgment. Realizing this error, Mr. Witz subsequently filed an affirmation dated July 23, 2007, which is identical to his initial unsworn affidavit.