New York State Court of Claims

New York State Court of Claims
MORRIS v. THE STATE OF NEW YORK, # 2008-037-502, Claim No. 106569, Motion No. M-73852, Cross-Motion No. CM-73856


Case information

UID: 2008-037-502
Claimant(s): DALE J. MORRIS, individually and as Parent and Natural Guardian of STEPHANIE MORRIS, an infant
Claimant short name: MORRIS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 106569
Motion number(s): M-73852
Cross-motion number(s): CM-73856
Claimant's attorney: Hurwitz & Fine, P.C.
By: V. Christopher Potenza, Esq.
Burden, Gulisano & Hickey, LLC
By: Donna L. Burden, Esq.
Defendant's attorney: Wilson, Elser, Moskowitz, Edelman & Dicker LLP
By: Thomas M. Witz, Esq.
Third-party defendant's attorney:
Signature date: September 5, 2008
City: Buffalo
Official citation: 67 AD3d 1376 (2009)
Appellate results: Affirmed
See also (multicaptioned case)


This is a claim to recover for injuries allegedly sustained by Claimant Stephanie Morris(1) while participating in a youth soccer day camp on the campus of the State University of New York College at Buffalo (SUCB). The issues at trial were bifurcated and this decision relates solely to the issue of Defendant's liability.

On July 16, 2001, then fifteen-year-old Claimant was attending the first day of the Buffalo State College Soccer Goalie Camp (Camp) at SUCB in the City of Buffalo, New York. The Camp consisted of five days of intensive training for soccer goalies from different age groups ranging from 8 to 18 years of age under the direction of Rudy Pompert (Pompert), head soccer coach at SUCB (Claimant's Exhibits 20, 21 & 22). Claimant testified at trial that she had been playing organized soccer since elementary school both with school teams and private soccer leagues and had previously attended soccer camps. At the beginning of the Camp, Pompert divided the participants into two groups based upon age and skill levels and Claimant was assigned to the upper level group. He advised her group that at the end of the day's session they would be responsible for moving the soccer goals and equipment from the recreation field to an outdoor storage area for safekeeping. Pompert testified that the reason for moving the goals was to place them "face to face" so that two goals could be chained and locked together to prevent unauthorized individuals from hanging or climbing on the goals when not in use, thereby reducing the risk of tip-over accidents.

At approximately 4:00 P.M., Pompert requested that Claimant's group move one of the regulation-sized, professionally manufactured soccer goals weighing about 138 pounds and Claimant voluntarily participated in moving the goal. A factual dispute exists as to the exact method used to move the goal. Claimant testified that she and three other campers of similar age and size(2) lifted and carried the goal in an upright position a considerable distance without any instruction or assistance from the coaches. To the contrary, Pompert stated that before the goal was moved he tipped it face down on the grass and positioned six campers (including Claimant) along the sides of the tipped goal to distribute its weight among the campers and then directed them to lift and carry it approximately twenty-five yards while he continuously observed them. Notwithstanding the factual discrepancy over the method of moving the goal, there is no dispute that Claimant's injury occurred when, for reasons unknown, one of the other participants carrying the goal suddenly dropped the corner he was carrying causing the goal frame to strike the back of her head. Claimant estimated that the boy who dropped the goal was at least her age and possibly a year or two older. Claimant also admitted that she never made any attempt to identify the individual or determine why he dropped his portion of the goal.

Claimant stated that as a result of being struck on the head by the goal frame she was dazed, fell to the ground and suffered blurred vision. She also alleged that no one in a supervisory capacity came to her assistance after the accident. Pompert testified that Claimant did not fall to the ground and did not appear to be seriously injured. Nevertheless, he immediately sent her to be examined by the SUCB trainer, Sean Roberts, who was on duty at the Camp. Although Mr. Roberts did not testify at trial, his written injury report (Claimant's Exhibit 25) confirms that he examined Claimant after the accident but it is not clear whether the examination occurred on July 16 or July 17, 2001. In any event, Dale Morris testified that when he picked Claimant up on the day of the accident she was escorted to his car by an unidentified adult male who treated her head injury with an ice pack.

In support of her case, Claimant offered the testimony of Scott Burton (Burton), a recreation safety consultant and owner of a company that designs, manufactures and installs playground and sports equipment such as soccer goals, as her expert witness. Defendant objected to Burton being accepted as an expert and moved in limine to preclude his testimony contending that he is unqualified to render an opinion as to the safe or proper way to move a soccer goal. The Court reserved decision on Defendant's motion and allowed Burton's testimony pending a determination on the objection. For the reasons which follow, Defendant's motion no. M-73852 is denied.

The law is well-settled that where the proximate cause of an injury is beyond the ordinary knowledge and experience of the trier of facts, expert testimony is required to establish a causal link to the accident (Madsen v Merola, 288 AD2d 520 [2001]). Assuming, without deciding, that this is such a case, "the expert should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable" (Matott v Ward, 48 NY2d 455, 459 [1979]; see also Beeley v Spencer, 309 AD2d 1303, 1305 [2003]). Where objection is made to the qualifications of a witness to testify as an expert, the trial court has the initial responsibility of determining whether the witness, based on experience and study, has the necessary standing to be regarded as an expert (Payant v Imobersteg, 256 AD2d 702, 704 [1998]). Once the threshold determination is made that an expert possess the necessary qualifications, any purported lack of skill or expertise goes to the weight of his or her testimony as evidence, not its admissibility (see Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831 [2005]; Payant v Imobersteg, supra). Preclusion is therefore inappropriate where the proffered expert possesses the necessary qualifications to be regarded as such but is not a specialist in the subject matter involved (Adamy v Ziriakus, 92 NY2d 396 [1998]).

Here, the Court finds that Burton's knowledge, education, background and experience as a certified playground safety inspector, recreation safety consultant and manufacturer of recreational equipment is sufficient to qualify him as an expert. Any purported lack of expertise or training relating specifically to the safe or proper method of moving a portable soccer goal goes to the weight of his testimony and not its admissibility. Therefore, Defendant's motion to preclude Burton's testimony and certain documents is denied.(3)

In his testimony at trial, Burton opined that regardless of the method used or the number of campers involved in moving the goal it should not have been moved by children of Claimant's age. He described the situation as "an accident waiting to happen" (Transcript at 332) and indicated that the supervision of the move by Pompert was unreasonable and inadequate (Transcript at 335, 337). Burton also stated that requiring teenagers to move a soccer goal is not part of the "soccer culture" as suggested by Pompert and is, in fact, a violation of standards promulgated by the Consumer Product Safety Commission (CPSC) and the American Society for Testing and Materials (ASTM) (Transcript at 337-338).

Pompert, a native of the Netherlands, testified as both a fact and expert witness, stating that he has had a lifetime association with the game of soccer as a player and coach. He earned an advanced national diploma from the National Soccer Coaches Association of America, purportedly the world's largest soccer coaches organization, and he holds both "A" and "B" licenses from the United States Soccer Federation. He indicated that it was his experience in the Netherlands that soccer players engaged in moving portable soccer goals at fourteen or fifteen years of age as part of the "soccer culture" and he has observed that the same practice is followed in the United States. Pompert admitted that he is not familiar with the CPSC/ASTM guidelines referenced by Burton or the safety instructions for the moveable goal involved in this incident.

Thomas Garigen, a member of the United States Soccer Foundation, a soccer coach for the Olympic Development Program, director of coaching for Buffalo United Soccer Club and a former soccer coach at State University of New York at Buffalo, also offered expert testimony for Defendant. He testified that it is common practice in youth soccer for participants as young as thirteen or fourteen years old to move portable soccer goals without adult assistance as part of ordinary practice and training sessions. He also stated that while using six players to move a goal is normal, it is appropriate to use as few as four players because modern goal frames are constructed of light weight aluminum rather than steel.

To sustain a cause of action for negligence, Claimant must prove that Defendant had a duty to Claimant, breached that duty, and that the breach was the proximate cause of Claimant's injury. Claimant contends that Defendant breached its duty of reasonable care by directing or permitting her to participate with other teenagers in moving a soccer goal which is inherently dangerous.

It is well-settled that the State, as a landowner, has a duty to maintain its property " in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v Miller, 40 NY2d 233, 241 [1976]; Preston v State of New York, 59 NY2d 997 [1983]). This duty extends to the State's operation of its athletic facilities (see Valentine v State of New York, 192 Misc 2d 706 [2002]).

Defendant counters 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 Defendant 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 Defendant'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, [Claimant] has consented to them and defendant has performed its duty" (Morgan v State of New York, supra at 484, quoting Turcotte v Fell, supra 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 (id.).

On the other hand, a defendant generally has a duty to exercise reasonable care to protect such participants from "unassumed, concealed or unreasonably increased risks" (Benitez v New York City Bd. of Educ., 73 NY2d 650 [1989]). "To establish [claimant's] assumption of risk, a defendant must show that [claimant] was aware of the defective or dangerous condition and the resultant risk, although it is not necessary to demonstrate that [claimant] foresaw the exact manner in which his injury occurred" (Lamey v Foley, 188 AD2d 157, 164 [1993], citing Maddox v City of New York, 66 NY2d 270, 278 [1985]). Whether that conclusion can be made depends on "the openness and obviousness of the risk, [claimant's] background, skill, and experience, [claimant's] own conduct under the circumstances, and the nature of defendant's conduct" (Lamey v Foley, supra at 164; see Benitez v New York City Bd. of Educ., supra at 657-658; Turcotte v Fell, supra at 440). "Perhaps the most important factor, however, is whether the risk is inherent in the activity" (Lamey v Foley, supra at 164).

It is Defendant's contention that Claimant is barred from any recovery in this claim under the doctrine of primary assumption of risk. There is no dispute that Claimant, although relatively young, because of her acknowledged background and experience with soccer and soccer goals would presumably know what "[a] reasonable person of participatory age or experience [would] be expected to know" (see Morgan v State of New York, supra at 488). According to Defendant, therefore, the risks of participating in moving a soccer goal were apparent and appreciated by her.

Under the facts presented in this case, however, 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 children of similar age to be stored for the night. Under the circumstances, the Court finds that the risk of being struck on the head while moving a soccer goal is not "inherent" to the sport of soccer, and that such a risk "is not sufficiently interwoven into the assumed inherent risk category" (id.). The Court therefore finds that the doctrine of primary assumption of the risk does not apply to these facts, and that Claimant did not legally assume the risk of injuries suffered in this incident so as to relieve Defendant from its ordinary and reasonable duty of care.

Claimant's second theory is that Defendant did not adequately supervise the moving of the soccer goal. Generally, a university does not stand in the position of in loco parentis to adult students and may not be held liable for failing to supervise their activities (Eiseman v State of New York, 70 NY2d 175 [1987]; see also Rydzynski v North Shore Univ. Hosp., 262 AD2d 630 [1999]). A duty to supervise may arise, however, in a setting where it is reasonable for students to expect that someone is monitoring their activities. "This responsibility includes the obligation not to direct a student to do that which is unreasonably dangerous . . . (citations omitted), to see that any equipment supplied is reasonably safe for its intended use . . . (citations omitted) and to provide such instruction and supervision as is reasonably required to safely perform the directed tasks or to use the supplied equipment (citations omitted)" (Yarborough v City Univ. of N.Y., 137 Misc 2d 282, 285 [1987]). What is reasonable will, of course, vary with, among other factors, the age and abilities of the student (Mintz v State of New York, 47 AD2d 570 [1975]) and his or her reasonable expectations of due care under the circumstances (Turcotte v Fell, supra). Nevertheless, schools are not insurers of their students' safety "for they cannot reasonably be expected to continuously supervise and control all movements and activities of students" (Mirand v City of New York, 84 NY2d 44, 49 [1994]; see De Los Santos v New York City Dept. of Educ., 42 AD3d 422 [2007]). In the context of injuries caused by fellow students, because a school cannot be held liable for "every thoughtless or careless act by which one pupil may injure another" (Lawes v Board of Educ. of City of N.Y., 16 NY2d 302, 306 [1965]), a claimant must establish that school authorities had "sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated" (Mirand v City of New York, supra at 49). Thus, a school's actual or constructive knowledge that the offending student had engaged in prior similar conduct is generally required (id.).

It is Claimant's burden to prove her case by a preponderance of the credible evidence. As the trier of fact and law, charged with assessing the credibility (see Raynor v State of New York, 98 AD2d 865 [1983]) of the various witnesses and evaluating the evidence, and upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence established that Defendant is not responsible for Claimant's unfortunate accident and resultant injury.

The evidence regarding the degree of supervision at the time of the incident on the date in question was conflicting. Claimant's testimony was that she did not see any coaches or receive any instruction prior to voluntarily moving the soccer goal, and that no one in a supervisory capacity came to her assistance after the accident. Pompert, however, testified that he instructed six of the campers, including Claimant, on the proper method of carrying the goal, supervised its move, witnessed the accident and directed Claimant to seek treatment from the SUCB trainer. Although the Court found Claimant and Pompert to be credible witnesses, Pompert had a better recollection of the events and the Court credits his testimony. The Court was not persuaded that Claimant's recall was reliable given the nature of her injuries and the passage of time since the accident.

Based upon the foregoing, the Court concludes that Pompert's instructions to the participants and presence on the field during the moving of the soccer goal constituted adequate supervision under the circumstances. Furthermore, the Court determines that the alleged inadequate supervision by Pompert was not the proximate cause of Claimant's injuries. Rather, the injuries resulted from a spontaneous and unforeseeable act committed by a fellow camp participant who apparently dropped his portion of the goal without warning (see Wuest v Board of Educ. of Middle Country Cent. School Dist., 298 AD2d 578 [2002]). The record contains no evidence of any prior incidents involving Claimant and her fellow camper that would have placed Defendant on notice that the fellow camper's act that allegedly caused Claimant's injuries could reasonably have been anticipated (see Baker v Trinity-Pawling School, 21 AD3d 272 [2005], lv dismissed 7 NY3d 739 [2006]).

While it is unfortunate that Claimant was injured by the falling soccer goal, and the Court is sympathetic to her situation, the mere fact that an accident occurred cannot alone establish Defendant's liability.

Defendant's motion to dismiss, upon which decision was reserved at trial, is hereby granted and Claim Number 106569 is dismissed in its entirety. All trial motions not otherwise disposed of or withdrawn are hereby denied.


September 5, 2008

Buffalo, New York


Judge of the Court of Claims

The following were read and considered with respect to Defendant's motion in limine M-73852 to preclude and Claimant's cross-motion in limine CM-73856 to preclude:

1. Notice of Defendant's motion in limine M-73852 and supporting affidavit of Thomas

M. Witz, Esq. sworn to August 10, 2007, with annexed Exhibits;

2. Defendant's memorandum of law in support of motion in limine dated August 10,


3. Notice of cross-motion in limine CM-73856 and affidavit of Donna L. Burden, Esq.

in opposition to Defendant's motion and in support of Claimant's cross-motion, sworn to August 16, 2007, with annexed Exhibits;

4. Affirmation of Benjamin F. Neidl, Esq. in opposition to Claimant's cross-motion in

limine and reply in support of Defendant's motion in limine.

1. Claimant Dale J. Morris instituted this claim, individually and as parent and natural guardian of his daughter, Stephanie Morris, who was an infant at the time of the accident and has since reached the age of majority. The individual claim asserted by Dale J. Morris is purely derivative in nature. Hereafter, the term "Claimant" shall refer to Stephanie Morris unless otherwise noted.

2. The other campers involved in this incident were not identified and did not testify at trial. The record reflects that Claimant was 5' 7" tall and weighed 117 pounds at the time of the accident.

3. Claimant's cross-motion in limine CM-73856 to preclude Defendant's experts is similarly denied.