New York State Court of Claims

New York State Court of Claims

BROOKSTONE v. THE STATE OF NEW YORK, #2007-044-024, Claim No. 109167


Claimant, an experienced basketball player, was deemed to have consented to the inherent risk and foreseeable consequence of a potentially serious injury, which occurred when he was playing basketball and landed out of bounds on an uneven surface (which is not a unique condition on an outdoor asphalt court in upstate New York).

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:
BY: Edward B. Flink, Esq., of counsel Christopher A. Guetti, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 14, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Mitchell S. Brookstone[1] seeks to recover damages from defendant State of New York (defendant) for injuries incurred by him during a pick-up basketball game at Gilbert Lake State Park (the park) in Otsego County. Trial of the matter was bifurcated and held in the

Binghamton District on February 20 and 21, 2007, and the parties thereafter belatedly submitted post-trial memorandums of law. This decision addresses only the issue of liability.

Claimants, together with four other couples, traveled from Long Island to the park for a camping trip over the Fourth of July holiday weekend in 2003. Claimants arrived at the park on Friday, July 4. They got settled in, cooked dinner and had a campfire with their friends that evening. Claimant testified that he might have had one or two beers during the course of the evening.

The following day was hot and sunny, and claimant dressed in a T-shirt, shorts, socks and sport sneakers. Claimant and three other men in the group drove over to the park's basketball court to “shoot hoops”[2] at approximately noon. Claimant had never previously been to this court. When they arrived at the court, there were already people playing there. Claimant thought approximately 10 people were playing, with several more “standing around.” Claimant and his friends discussed whether to leave, but decided to stay and “substitute in.” After approximately 15 minutes, claimant and his friends began to rotate into the game.

Claimant's injury occurred approximately one-half hour after he began playing. He said he was standing about 10 feet from the end line, and the ball was about to go out of bounds. He ran to “save” it, and jumped, planting his left foot inside the court before the endline and reaching toward the ball with his right hand. He was aware that he was running out of the boundary lines, but did not realize he was coming to the end of the paved area. He said that when he landed on his right foot, he heard his leg break. He stated that he landed squarely on the sole of his foot, and could feel that he was landing on an uneven surface. He was subsequently transported to the hospital, where it was determined that he had a fracture of the medial tibial plateau of his right leg.

Claimant testified that he was a good athlete, and had played varsity basketball in high school. He said he toned down his athletic activities after marrying and purchasing his dental practice. At the time of his accident, he was 6 feet tall and weighed approximately 200 pounds.

The existing basketball court in the park was resurfaced with asphalt in 1999 while the roads throughout the park were being paved. At that time, the Park Manager was Edwin Winslow. Winslow testified, on behalf of claimant, that he provided a hand-drawn sketch to the paving company for the resurfacing. The sketch was based on a plan from a physical education handbook he had acquired in college, approximately 30 years earlier. That handbook indicated that basketball courts should have a minimum safety zone width outside the boundary lines of 3 feet, with a recommended width of 10 feet. Winslow stated that the decision to resurface the court was within his discretion as Park Manager. He said that the court was used solely for recreation by park patrons, and had not been used for organized leagues. He was not aware of any previous safety issues.

Park Supervisor Brian Gregory also testified on claimant's behalf. Gregory described the asphalt at the end of the court, as shown in the pictures, as tapering off to an oil-and-stone surface, which was presumably the material comprising the surface of the court when it was originally constructed. Although Gregory did not witness the accident itself, he was called to the scene, and facilitated the preparation of the accident report by questioning the witnesses and having them fill out relevant information on the report. He stated that he was not aware of any safety problems or injuries at the court prior to the accident.

David Brookstone, claimant's brother and also a participant in the basketball game, testified as well. He had been to the park several times previously, and had played basketball on the court in question on other occasions. He said he had played basketball with claimant “hundreds” of times in the past. He essentially described the same set of events as testified to by claimant. At the time of the accident, David Brookstone was at the top of the key, and claimant was near the baseline. The ball was heading toward the baseline, and claimant attempted to keep the ball from going out-of-bounds. He described claimant's movement as “athletic,” and said claimant's leg buckled as he was landing, and he tumbled to the ground. David Brookstone described the area where claimant landed (which he viewed more closely later in the day) as being an “uneven asphalt surface.” He said he had made no observations prior to the accident regarding the “drop-off” between the asphalt surface of the court and the older, underlying oil-and-stone surface. He attributed his failure to notice the difference in elevation between the asphalt and the underlying surface to the fact that the two surfaces were similar in color.

David Brookstone said that a park employee arrived at the court while he and his friends were maneuvering a vehicle as close to the court as possible to get claimant. They took claimant to the hospital, rather than waiting for an ambulance. After taking claimant to the hospital, David Brookstone and the other members of the party packed their belongings to go home. On their way out of the park to the hospital to pick up claimant, they stopped at the basketball court, where David Brookstone took some pictures which were admitted into evidence at trial.

Alvin Epstein testified as claimant's expert on the issue of construction of the court. Epstein had previously been employed as a director of health and physical education for a school district. He had been involved in children's camping activities for 46 years, had officiated and coached basketball for more than two decades, and consulted with various attorneys regarding physical education and recreation.

Epstein testified that the game of basketball has become increasingly more competitive and physical, and is played both inside as well as outside of the court's boundary lines. Epstein said that a three-foot-minimum safety zone standard had been set many years ago, when the game was different. He said that the standard size for the safety zone when he retired in 1991 was 8 feet, and should now be 10 feet. He further stated that if it could not be 10 feet, there should be warning indications - whether padding, signs, or double-striped lines - to indicate that a player is leaving the safety zone. He did acknowledge, however, that the “books” still “reflect” a three-foot safety zone. However, he said that practically all courts are now constructed with a 10-foot safety zone. The difference between indoor and outdoor courts is that outdoor courts need to be graded in order to insure proper drainage. He said that the appropriate grade for an outdoor court is 1 inch over 10 feet, but there should be no sudden drop-offs.

Epstein personally inspected the court. He said that the safety zone in the area where claimant fell was approximately 33 inches in width. During his inspection, he examined the area where the accident occurred, and observed that there was approximately a two-inch drop-off from the baseline to the end of the safety zone. Further, where the new asphalt met the old surface, there was an additional drop-off of just over another inch. Epstein also said that the surface of the safety zone was uneven, particularly in the area where the surfaces joined.

Epstein opined that the surface, where claimant's foot landed, was defective and unsafe, in that the safety zone was insufficient in width, there was a “steep” drop, and uneven terrain. Also, because the colors of the two different surfaces were similar, the difference in elevation was difficult to distinguish. Moreover, he stated that play in that area is an inherent part of the game of basketball. Also, he said, there was sufficient space to put in an adequate safety zone. In his expert opinion, defendant did not use reasonable care in the design and construction of the resurfaced court.

On cross-examination, Epstein acknowledged that he did not have a background in construction. He also conceded that the “standards” to which he referred when discussing how wide the safety zone should be were merely recommendations.

Claimant also offered the testimony of Dr. Watnik, claimant's treating orthopedic surgeon, who has treated hundreds of tibial plateau fractures. He opined that the only way to sustain a medial tibial plateau fracture is for the leg to be in a varus, or bowlegged, position at the time of impact. According to him, these types of fractures usually only occur in a fall from a height onto an uneven surface, or where the leg falls into a hole. He said that such a fracture is rare in basketball because the court is normally a flat surface. He opined that the injury occurred because claimant's leg came down onto an uneven surface.

At the close of claimant's case, defendant moved to dismiss the claim on the ground that claimant had failed to establish a prima facie case. The Court reserved decision on the motion.

Defendant's expert, Mari Truman, is a professional engineer licensed in the State of Ohio. Immediately before the trial, claimant's counsel moved to preclude her testimony on the ground that she is not licensed in the State of New York, suggesting that if she were to render a professional opinion in Court, she would be engaging in the unlicensed practice of engineering, thus committing a misdemeanor. At trial, the Court denied the motion to preclude, citing the cases of Cutro v Duffy (88 AD2d 1007 [1982]) and Eagle Pet Serv. Co. v Pacific Empls. Ins. Co. (175 AD2d 471 [1991], lv denied 79 NY2d 753 [1992]). Those cases held that it is appropriate for a court to allow testimony by someone who can demonstrate the appropriate experience and knowledge, even if that person is not licensed in the jurisdiction, and that the lack of a license merely affects the weight the court should accord the testimony (see also Pember v Carlson,

45 AD3d 1092 [2007]).

Truman initially testified that the injury was due to claimant's poor landing “mechanics.” She opined that he landed straight-legged, and that this imparted sufficient force through the foot and into the knee to fracture the medial tibial plateau. However, she acknowledged on cross-examination that landing on an uneven surface could have caused the poor landing mechanics leading to the fracture. She finally acknowledged that, if claimant had landed on a flat surface, the forces exerted on the leg could have been substantially less, and claimant might not have sustained that particular injury, or even any injury at all. Truman acknowledged that claimant's testimony about the circumstances of the injury “appear[ed] to be consistent with all the other facts.”

Frederick Bremer, a licensed architect, also testified on defendant's behalf. He opined that the court was reasonably safe and in good condition, given that it was located outdoors and was intended for unorganized recreational play. He acknowledged that the safety zone ranged in size from two feet seven inches to four feet four inches, depending on the location. The difference in height between the newer asphalt surface and the older, underlying surface ranged from “near nothing” to three and one-quarter inches, according to his measurements. He said that the recommendations cited by claimant's expert with regard to the size of the safety zones, were just that: recommendations, without the force of law. He said that there are no codified laws, statutes or regulations in New York which would apply to the construction of outdoor basketball courts. To make a court perfectly safe, he said, would require a controlled indoor environment, with a smooth non-slip floor and padding around the court. An asphalt-paved outdoor court, on the other hand, is never going to be as smooth as a wooden indoor court, and is of course subject to the deleterious effects of the weather. Moreover, Bremer said, his observation was that the color of the top layer of asphalt was darker than that of the lower layer.

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 law is also 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 is known as the “primary assumption of risk” doctrine, and it 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]).

It should be noted, however, that a participant cannot be deemed to have assumed the risk if that risk was “unique and resulted in a dangerous condition over and above the usual dangers inherent in the activity” (Rios v Town of Colonie, 256 AD2d 900, 900 [1998]). Moreover, the participant's awareness of the risk should be assessed against the background of his or her skill and experience (Morgan v State of New York, supra at 486).

Claimant urges that the primary assumption of risk doctrine does not apply in this instance, on the ground that the condition causing claimant's injury[3] was a faulty safety feature (and moreover that the condition was not open and obvious, which argument shall be discussed infra), thus falling within an exception to the doctrine. Claimant argues that the instant case is “easily distinguishable” from that of Sykes v County of Erie (263 AD2d 947 [1999], affd 94 NY2d 912 [2000]), where the Court found that claimant had indeed assumed the risk of injury when he stepped into a recessed drain located within the boundary lines of the court. Claimant suggests that the Sykes Court was able to reach a determination on primary assumption of risk because the “defect” was not a “defective” safety feature of the court, whereas claimant's injury occurred “outside and away from the regular playing surface.”[4] Claimant simultaneously, however, also asserts that attempting to “save” the ball outside the boundary lines is a normal and routine part of the game of basketball, as was testified by claimant's expert (this assertion was made in an attempt to show that claimant was not contributorily negligent).

While the area immediately outside the boundaries of the court itself may be designated the “safety zone,” it cannot actually be considered a safety feature “not directly used in playing the game” (Claimants’ Post Trial Memorandum of Facts and Law, p 22). Rather, as claimant, his brother and his expert all testified, play in the safety zone is a routine and normal part of the game of basketball, and the risk of injury encountered by playing in that zone is clearly an inherent risk of the game.

Expert testimony that the size of a safety zone was inadequate (it being at the location of the accident three inches less than the three feet acknowledged to still be “on the books” by claimant's expert) might be sufficient to raise a triable issue of fact and defeat a motion for summary judgment (see Greenburg v Peekskill City School Dist., 255 AD2d 487 [1998]). However, in this case, as finder of fact, the Court finds that the dimensions of the safety zone in the area where claimant was injured were adequate for an outdoor, asphalt basketball court, and did not constitute a dangerous condition (cf. Clark v State of New York, 245 AD2d 413 [1997] [Appellate Division affirmed trial court's finding that a basketball player did not assume the risk of an injury caused by a “steep drop-off several inches from the edge of the playing area's asphalt surface, since [that] ‘created a dangerous condition over and above the usual dangers . . . inherent in the sport’ ” quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 (1992)]).

In this instance, claimant was an extremely experienced basketball player, by his own admission. Accordingly, he must be held to have been aware that playing around and outside of the boundaries is inherent in the nature of the sport of basketball. The pictures of the court, and in particular the location where claimant fell, clearly reveal that the uneven surface at the edge of the most recent paving was both open and obvious. In playing on an outdoor, asphalt-paved court, this experienced claimant must be deemed to have consented to the foreseeable consequences of landing on an uneven surface (certainly not a unique condition on an outdoor, asphalt court located in upstate New York, with the attendant deleterious weather impacts upon asphalt surfaces), and the potential of an injury arising therefrom (see also Rodriguez v State of New York, Ct Cl, Sept. 29, 2000, O'Rourke, J., Claim No. 98647 [UID # 2000-017-603]; Sykes v County of Erie, supra; Green v City of New York, 263 AD2d 385 [1999]; Paone v County of Suffolk, 251 AD2d 563 [1998]).

The claim is therefore dismissed on the merits. Any motions not previously determined, including defendant’s motion to dismiss, are hereby denied. Let judgment be entered accordingly.

December 14, 2007
Binghamton, New York

Judge of the Court of Claims

[1]. Claimant Leigh A. Brookstone, claimant Mitchell S. Brookstone’s wife, asserts a derivative cause of action. Accordingly, unless otherwise indicated or required by context, the term “claimant” shall refer to claimant Mitchell S. Brookstone.
[2]. All quotes are taken from the Court's recording of the proceedings.
[3]. The Court fully credits both claimant's testimony and Dr. Watnik's conclusion that the injury was caused by claimant landing on the uneven surface at the edge of the newer paved surface.
[4]. In support of his argument, claimant also cited Owens v City of New York (2003 NY Slip Op 51133[U] [AppTerm 2003]), where a basketball player was injured in a collision with a bench located along the end line of the basketball court. However, that case was reversed in 2005 on the ground that defendant’s alleged negligence did not cause the plaintiff’s injuries, with the Court noting that the plaintiff had assumed the risk of his injuries (Owens v City of New York, 17 AD3d 552 [2005]).