New York State Court of Claims

New York State Court of Claims

GLOVER v. THE STATE OF NEW YORK, #2007-044-020, Claim No. 110458


Claim for injuries incurred in prison-yard basketball game dismissed, where defects on playing court were open and obvious, and claimant had substantial prior knowledge of condition of court

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:
GREENE & REID, LLPBY: Jeffrey G. Pomeroy, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 30, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate, seeks damages from defendant State of New York (defendant) for injuries sustained when he fell while playing basketball at an outdoor court at Elmira Correctional Facility (Elmira) on May 30, 2004. Trial of the matter was bifurcated and held in the Binghamton District on September 11, 2007. This decision addresses only the issue of liability.

Claimant testified that he was sent to Elmira from another correctional facility in March 2004, and that he was put into protective custody (PC) at the end of March due to threats he had received from other inmates. The PC inmates took their daily recreation in an isolated recreation yard known as the PC yard, which contained a weight area, a basketball half-court, some picnic tables and a guard shack. Most of the yard was covered with blacktop. Claimant described the PC yard as “pretty tore up,”[1] with cracks “all over,” and three-to four-foot-deep holes in the blacktop near the weight area.

Claimant said he went outside for recreation “pretty much every day.” He generally sat at the picnic table and played cards or dominos with other inmates. The picnic table was adjacent to the basketball court, and he stated he was readily able to observe the condition of the court during recreation every day for “at least” two months. Usually there were about 20 inmates playing basketball, while others exercised in the weight area. He said that the guards usually sat in the guard shack, located opposite the basketball court, and read newspapers and did crossword puzzles.

May 30, 2004 was Memorial Day, and claimant described it as a dry, sunny, beautiful day. His recreation period started at approximately 12:45 p.m. He said he decided to play basketball that day because there were only two people on the court, and only six to eight inmates outside. He was wearing a short-sleeved shirt and sneakers, which he said were “double-tied” and “knotted.” He was sure that the sneakers were relatively new, because he said he never kept sneakers for longer than four to six months. He did not recall whether he was wearing shorts or pants. He said that he was acquainted with the two inmates who were playing basketball, and they decided to shoot around and play “21,”[2] rather than playing a formal game.

Claimant described his accident as follows. One of the other inmates shot the ball, which bounced off the rim and went toward the right side of the yard in the direction of the fence. Claimant started running toward the ball, but his right foot caught in a hole and he fell forward. He put his right arm out to break his fall, and the bone(s) snapped as he hit the ground. He didn't think he ran far before he fell, but he landed off the blacktop. He described the hole as being three to four inches deep and triangular in shape, and said he did not see it until after he fell. He said the two other players helped him up, and then one of the guards took him inside, where he was then taken to the facility's infirmary.

On cross-examination, claimant stated that he was generally sedentary during the recreation period. He said he was 6 feet 1 inch tall, and also stated that he weighed 250 pounds at the time of the accident. He acknowledged, however, that he had testified at his deposition that he weighed 280 pounds at the time of the accident.

Robert Ruppel, a Maintenance Supervisor 3 at Elmira both currently and at the time of the accident, also testified on claimant's behalf. Ruppel said that his job was to coordinate all repairs to the entire facility, and to maintain logs and records pertaining thereto. He testified that he wrote up a work order directing that the PC yard's blacktop be repaired “as needed” on May 20, 2004 (prior to the accident date of May 30, 2004), shortly after he received a complaint that the blacktop had “divots.” [3] He did not recall who made the complaint, but said that it was more than likely a correction officer. He believed that he inspected the condition of the PC yard prior to preparing the work order, as that would have been his practice. He did recall that the blacktop of the basketball court had cracks and divots, and described its condition as “fair to poor,” saying it needed repair. He testified that the condition of the court was attributable to various causes, including snowplows and frost heave.

In the work order, Ruppel assigned a priority code of two to the blacktop repair.[4] He said that he gave it a relatively high priority code because it was a health and safety issue to both the inmates playing on it and the guards walking across it. Ruppel acknowledged that he saw the hole claimant says he fell in when he (Ruppel) inspected the yard, although he did not specify that the hole be repaired in the work order. He said that the hole was not on the court itself, but was located on the outside perimeter of the blacktop.

Repairs were made pursuant to the work order on June 8, 2004. Ruppel said that, between the time he prepared the work order and the date of the repair, he neither blocked off the court nor put up cones, and he did not instruct inmates not to play on the court. He acknowledged that it was physically possible for the repairs to have been made within a day or two of the date of the work order, if he had made a temporary repair with cold-patch asphalt and a hand-tamper.

However, he said that at the time of the accident, his maintenance staff was short by four to five people. He received approximately 400 work orders per month, and had 12 people available to complete those repairs. In this instance, due to the volume of the repairs necessary, he preferred to use a mechanical tamper, rather than a hand-tamper, which the facility would have had to rent. Additionally, in order to perform all the repairs, he had to take the fence down to get a backhoe into the yard, and had to order the volume of cold-patch needed. When the court was repaired on June 8, 2004, a mechanical tamper was used. Ruppel said that the date the repairs were made was the earliest date the repairs could feasibly have been made in the manner he thought appropriate.

At the time the repairs were made, Ruppel discussed the fact that the entire court needed to be repaved. However, funds for a project of that magnitude were not in his budget, and funding approval would have taken months to obtain. Funds were eventually obtained, and the court was repaved in 2005.

Craig Desormeau, a licensed engineer, testified as claimant's expert. In addition to owning a consulting engineering firm, Desormeau is also a certified and trained code enforcement officer. He specializes in municipal engineering, and testified regarding his experience in designing asphalt play areas and asphalt drainage issues.

He estimated the size of the hole, based on the photographic evidence (pictures taken with a ruler set into the hole), as being approximately 12 inches by 12 inches, and approximately 3 inches deep. He opined that the hole was caused by both storm water runoff and the freeze/thaw cycle. In his opinion, the asphalt was “generally uneven” and in “poor condition,” and was neither adequate nor safe for playing basketball. In fact, he stated that it posed a tripping hazard for anyone simply walking across it.

On cross-examination, Desormeau acknowledged that he did not visit the PC yard at Elmira to see the scene. He also admitted that the availability of resources could affect the timing of maintenance in this particular situation. He also readily acknowledged that the hole in question was open and obvious.

At the conclusion of claimant's case, defendant moved to dismiss the claim on the ground that claimant had not established a prima facie case with regard to various elements of the cause of action. Defendant's counsel contended that claimant had not established the existence of a dangerous condition, or that defendant, once it had notice of such a condition, failed to correct it in a timely manner. Moreover, counsel contended that claimant failed to show that the defect in question was the proximate cause of the injuries. The Court reserved decision on defendant's motion.

Correction Officer Brenzo testified on defendant's behalf. Brenzo was one of the guards on duty in the PC yard when claimant had his accident. He said that he had seen claimant in the PC yard on other occasions prior to the accident, and that claimant was always playing cards and dominos. He had never seen him play basketball before.

Brenzo said he did not remember the weather conditions that day, nor did he remember how many inmates were in the PC yard or how many were playing basketball. He did recall claimant's accident, however, and said he was watching claimant from the guard shack because it was unusual for him to play basketball. He testified that he saw claimant fall, and that claimant did not fall at the edge of the court in the hole identified by claimant in his testimony, but rather fell inside the court itself, some distance from the hole. Brenzo had no specific recollection of any unusual holes or cracks in the area where claimant fell. Brenzo said he left the guard shack and helped claimant to his feet, and then escorted him to the PC unit, where he was then taken to the infirmary.

On cross-examination, Brenzo acknowledged that he had not created any report or log entry memorializing the incident, so that all of his testimony was based solely on his recollection at the time of trial. He had no recollection of any comments by claimant at the time of the accident. However, he did recall that there were cracks on the blacktop, but stated that there were no holes in the court area itself. He had never received any complaints about the condition of the court, nor had he made any complaints himself about its condition.

Correction Officer Carpenter, the other guard on duty in the PC yard at the time of the accident, also testified for defendant. Carpenter also said he had never seen claimant play basketball before, and that usually claimant played cards with other inmates during the recreation period. Carpenter said that claimant fell three to five feet from the basket, in the area identified by Brenzo. Carpenter stated that the hole where claimant said he fell was approximately 10 feet away from where claimant actually fell. Carpenter said that neither he nor Brenzo left the shack immediately after claimant fell. He stated that claimant got up shortly after he fell, and then Brenzo left the shack to help him.

Carpenter stated, both on direct and cross-examination, that there were no defects in the pavement in the area where claimant fell. He acknowledged that there were cracks and holes, and that the pavement surface was uneven, and he believed that the blacktop needed to be repaired. He admitted that he had made some complaints to his supervisor regarding the condition of the blacktop, but did not remember when the complaints were made. He also said that some of the inmates complained about the condition of the blacktop prior to claimant's fall.

Peter Buzzetti, Elmira's plant superintendent, was defendant's final witness. He testified regarding the maintenance staff being short some people at the time of the accident, as well as the difficulties involved in getting both funding and approval for projects over $50,000 (such as repaving the PC yard blacktop). He characterized the basketball court as “playable, but in need of repair.” He did not believe the PC yard needed to be shut down pending repairs, because it was in “good shape.” Buzzetti recalled a discussion with Ruppel regarding the condition of the blacktop in the PC yard in May, 2004, but did not recall whether Ruppel recommended repaving it.

It is well established that the State has a duty to maintain its facilities in a reasonably safe condition (Preston v State of New York, 59 NY2d 997 [1983]). However, the State is not an insurer of the safety of its inmates, and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850 [1985]; Condon v State of New York, 193 AD2d 874 [1993]).

Moreover, the law is well settled that “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 participation” (Morgan v State of New York, 90 NY2d 471, 484 [1997]). This encompasses those risks associated with the construction of the playing field and any open and obvious defects thereon (Maddox v City of New York, 66 NY2d 270, 277 [1985]).

There is no dispute that the condition of the court - complete with cracks, crevices and holes - was open and obvious, and that the court was in need of repair. While claimant was clearly not an accomplished basketball player, he sat next to the court every day for at least two months while other inmates played basketball. This was clearly an adequate amount of time within which to gain sufficient knowledge and appreciation of the risks inherent in running and competing for a ball on an outdoor court, particularly given the completely obvious faulty condition of that court, which claimant must certainly have observed. Claimant's injury due to his voluntary decision to play basketball on an outdoor court in poor condition cannot be held to be attributable to a violation of defendant's duty to maintain its facility with reasonable care, and the claim is therefore dismissed on the merits (see Sykes v County of Erie, 94 NY2d 912 [2000]; Cruz v State of New York, 1 AD3d 747 [2003]; see also Cevetillo v Town of Mount Pleasant, 262 AD2d 517 [1999]).[5]

Any motions not previously determined, including defendant’s motion to dismiss, are hereby denied. Let judgment be entered accordingly.

November 30, 2007
Binghamton, New York

Judge of the Court of Claims

[1]. All quotes are taken from the Court's recording of the proceedings.
[2]. “21” is a variation of basketball in which there are no teams, but rather the players all play against each other; the first person to score 21 points wins.
[3]. He said that he was not certain when he received the complaint, but that it was his practice to write up work orders in response to complaints within a day or two after receiving the complaints.
[4]. Ruppel said that the priority codes ranged from one to five, with one being an emergency and five being very low priority. He said that 80 to 90 percent of the work orders were assigned a code three.
[5]. In light of this finding, there is no need to determine the issues of credibility raised regarding the actual location of claimant's fall. However, the Court notes that claimant presented as a competent and credible witness. On the other hand, the testimony of the two guards was inconsistent. The Court's observation of the demeanor of CO Brenzo in particular led to the conclusion that the accident unfolded as set forth by claimant, rather than in the different location described by the guards.