New York State Court of Claims

New York State Court of Claims

HARDWICK v. THE STATE OF NEW YORK, #2009-038-104, Claim No. 100497


Synopsis



Case Information

UID:
2009-038-104
Claimant(s):
LAMAR HARDWICK and CELESTE M. HARDWICK
Claimant short name:
HARDWICK
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100497
Motion number(s):

Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
ANDREW H. ROSENBAUM, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Robert J. Schwerdt, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 20, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants Lamar and Celeste Hardwick[1] seek to recover damages for injuries claimant allegedly sustained when he slipped on a puddle of water while playing basketball in an indoor gymnasium at Roberto Clemente State Park in Bronx County on June 13, 1998. The liability phase of the trial of this claim was conducted on April 7 and April 8, 2009[2] in New York, New York. Claimants presented the testimony of: (1) claimant Lamar Hardwick; (2) claimant Celeste Hardwick; (3) Office of Parks, Recreation and Historical Preservation (hereinafter OPRHP) Engineer John Bagley; (4) OPRHP Recreation Activities Specialist Rafael Muriel; and (5) former OPRHP Parks Police Officer Roberto Martinez. Defendant did not present the testimony of any live witnesses, but presented a DVD recording of the examination before trial (EBT) testimony of former OPRHP Recreational Specialist Angel Rodriguez, who was out of the state on the trial dates.[3] Numerous documentary, photographic and other exhibits were received into evidence. The parties made closing arguments and submitted post-trial memoranda for the Court’s consideration. After considering all of the evidence received at trial and the applicable law, the Court makes the following findings of fact and conclusions of law.
FACTS

The gymnasium at Roberto Clemente State Park in the Borough of the Bronx in New York City was open to park patrons on Saturday, June 13, 1998. The gymnasium had a basketball court, recreation department administrative offices, a maintenance area, a weight room and a game room on the first floor. Above the basketball court floor was a balcony that ringed and overlooked the basketball court, off which were several offices, including a police base. The basketball court had a rubberized playing floor that was beige in color that, according to the testimony of Rafael Muriel, an OPRHP Recreation Activities Specialist who worked in the gymnasium, could become slippery when wet. The basketball court was a regulation-size full court that ran north and south. In addition to the baskets at each end of the full-sized court, there were two baskets on each side of the court, which allowed the court to be divided and used as four half courts. The ceiling above the basketball court was approximately 50 feet above the playing surface.

John Bagley, who has been employed in various titles as an OPRHP engineer from 1969 through the trial date, testified that he became aware in 1995 that the “high roof”[4] – a 90-foot by 90-foot flat roof – over the basketball court had begun to leak badly, and that water frequently dripped onto the basketball court floor. OPRHP staff had set up evaporation and drip pans and leader pipes – and eventually plastic tarpaulins – to catch the leaking water and divert it so that it would not drip onto the basketball court. As these temporary remedial measures were not fully successful, garbage cans were often placed on the gym floor under the leaks to catch the dripping water. In October 1995 Bagley initiated the process to repair or replace the roof. Following a lengthy process that included inspection of the leaking roof, design of a new roof, several budget-related processes, and the contract bidding process, a contract for replacement of the roof was awarded in July 1997.[5] The contract provided for a completion date of seventy-five (75) days after receipt of written authorization to proceed with the work (Claimant’s Exhibit 11).

According to Bagley, physical work on the project started in December 1997, and the project was expected to last one month, weather permitting (Claimant’s Exhibit 14). By March 10, 1998 approximately eighty percent (80%) of the work on the project had been done, but unanticipated problems were identified in the course of the project, and new leaks in the roof were discovered in areas where new roofing had been installed (see Claimant’s Exhibits 15 and 16). A letter from the project manager to Bagley dated June 18, 1998 indicated that there were still “heavy leaking conditions” in the gymnasium (Claimant’s Exhibit 18). The roof replacement project was finally “substantially complete by December 1998” (Claimant’s Exhibit 23).

Substantial amounts of rain fell in New York City on June 12 and 13, 1998 (see Claimant’s Exhibit 37). Claimant’s slip and fall, as discussed in greater detail infra, occurred in the early afternoon on June 13, 1998. On that day, OPRHP Recreation Specialist Angel Rodriguez arrived at the gymnasium at approximately 9:00 a.m. to start his shift overseeing athletic activities in the gymnasium. According to Rodriguez’s EBT testimony, he inspected the basketball court at approximately 9:25 a.m. and observed that water was dripping onto the basketball court floor from a single leak in the ceiling on the “north court” (Defendant’s Exhibit B, at 14). Rodriguez stated that he observed only a couple of drops of water on the floor, and that water was dripping from the leak at a rate of approximately a drop every one to two seconds.

At approximately 9:45 a.m. Rodriguez located a mop and bucket in the maintenance area and mopped up the water that had leaked onto the court. According to his EBT testimony, Rodriguez then placed an uncovered large plastic round garbage can under the leak to catch the dripping water, and placed approximately four cones around the can about two to three feet from its outer edge to warn patrons of the condition. The large plastic garbage can was between three and four feet high and two to three feet in diameter; John Bagley described the garbage cans that he occasionally saw on the court as “88 gallon” cans. Rodriguez stated that the cones he placed were bright orange, approximately two feet in height, and with a white stripe around them. At his EBT, Rodriguez did not remember checking the garbage can/cone setup or the area where the water was leaking onto the basketball court at any point during the day after he performed his inspection that morning, nor did he recall whether any maintenance workers changed the garbage can/cone setup or otherwise attended to the leak.

Muriel testified that the proper practice in dealing with water leaking onto the basketball court was to mop up the water, put a garbage can under the leak, create a three-foot perimeter around the can with ten to fifteen cones, place “wet floor” signs down, and take any basketball hoops in the vicinity out of service by wrapping them with plastic. Muriel further testified that it was the duty of the recreation staff to check on the area to make sure that it was safe.

In the early afternoon of June 13, 1998, claimant walked from his parents’ home in the Bronx to the gymnasium. Arriving at the gym’s southern entrance at approximately1:00 p.m., claimant headed to the northeast half-court where a three-on-three half-court basketball game was in progress. Claimant – an experienced basketball player who had played basketball in the gymnasium on several occasions – waited on the sidelines for about ten to fifteen minutes while awaiting his opportunity to play, talking to other players and watching the game as he did so. Ten to fifteen minutes after entering the game, claimant chased a loose ball that was headed westward away from the basket toward the three-point line. Claimant testified that his left foot slid in a puddle of water on the court, four or five feet beyond the three-point line, his legs split “spread-eagle,” and he fell to the floor in the puddle. According to claimant, he was helped off the court and over to a bench by OPRHP Parks Police Officer Roberto Martinez. Claimant testified that after his accident he sat on the bench trying to gain his composure and that Martinez gave him an ice pack for his knee. Claimant testified that after sitting for 45 minutes to an hour, he left the gymnasium on his own and returned to his parents’ home.

Claimant testified that the puddle in which he fell was oval in shape, and was a “nice size,” approximately three feet by five feet in dimension. It extended approximately four to five feet from a large garbage can. Claimant testified that he did not observe the puddle, the garbage can or any cones before he slipped and fell.

Rodriguez stated in his EBT that he was on the basketball court on the south side of the court at the time of claimant’s accident. Rodriguez asserted that he saw claimant – whom he knew by the nickname of “Slick” (id. at 21) – playing basketball on the northeast court, while a group of about twelve children were playing football on the south side of the basketball court. Rodriguez stated in his EBT that he observed claimant chase a loose basketball in a westerly direction – in the direction of where the leak was located – and slip and fall when he was about three feet from the “cone area” (id. at 27). Rodriguez estimated that he was approximately fifteen to twenty feet from where claimant fell, and that he went over to help claimant. In his EBT testimony, Rodriguez initially stated that claimant got up from the floor on his own and, while grabbing his knee, walked with a limp to a bench that was fifteen feet from where he had fallen. Under examination by claimant’s counsel, Rodriguez stated that he may have helped claimant off the floor, but he could not remember whether he helped claimant over to the bench. Rodriguez initially stated in his EBT that he went to look for an ACE bandage and an ice pack for claimant’s knee, returned three to four minutes later with the ice pack and a bandage, and wrapped claimant’s knee with the bandage and placed ice on the knee to reduce swelling. Rodriguez later stated in his EBT that he could not recall whether he applied the ice before or after wrapping the knee, and further, that he was not sure whether he had even wrapped claimant’s knee. On subsequent questioning, Rodriguez stated that he initially went to look for ice for claimant’s knee and that it took him three to four minutes to find the ice and return to claimant, and that he then went to look for an ACE bandage and returned with it five minutes later, but he could not remember whether he helped claimant put the bandage on. According to his EBT testimony, Rodriguez remained with claimant for approximately “fifteen minutes or more” (id. at 139) while claimant was on the bench recovering, and that claimant eventually left the gymnasium on his own, limping as he went.

OPRHP Police Officer Martinez testified that he was positioned on the balcony above the basketball court floor at the time of claimant’s accident, and had a clear and unobstructed view of the basketball court. Martinez testified that he observed claimant run to retrieve a ball and slip and fall in a puddle of water that was within the bounds of play. Martinez ran downstairs to aid claimant and found him lying in the puddle of water. Martinez testified that claimant was in considerable pain, so he gave him a few moments to gain his bearings and then helped him over to a bench outside the game room.[6] According to Martinez, the puddle was a “pretty hefty puddle” that was oval or round in shape, approximately three feet by five feet in dimension and was plainly observable both from his perspective on the balcony and on the basketball court floor. Martinez testified that a garbage can was in the vicinity of where claimant fell, approximately five to ten feet from the puddle, but it was not positioned under any leak. Martinez further testified that there were no cones set up near the garbage can at the time of claimant’s accident.

According to Martinez, he did not see any of the recreation staff on the basketball court right after he helped claimant over to the bench, but he did see some maintenance staff whom he directed to get a mop and clean up the puddle, which they did. Martinez testified that he sat with claimant on the bench and he told one of the “kids” on the basketball court at the time to locate Rodriguez, who was supposed to be monitoring the basketball court at the time, and tell him to bring some ice for claimant’s knee. Martinez testified that an ice bag was eventually brought to him – although he was not sure who brought it – and claimant applied it to his knee. According to Martinez, Rodriguez eventually showed up at the scene approximately eight to ten minutes after the accident, and Martinez told Rodriguez that he had seen claimant slip in a puddle of water and that he had directed maintenance staff to mop up the puddle.

Rodriguez stated in his EBT that he commenced an investigation after claimant left, and observed that the area in which claimant fell was “clear and dry” (id. at 142). Rodriguez subsequently prepared two reports about the accident – an OPRHP form entitled “Patron Accident Report” completed on the date of the accident, and a handwritten narrative report entitled “Roberto Clemente State Park Incident Report” on June 16, 1998 (Defendant’s Exhibit A). Rodriguez stated in his EBT testimony that he did not remember much about the events of June 13, 1998 until the morning of his EBT, when he reviewed the aforementioned reports, as discussed in greater detail infra.

In the Patron Accident Report completed on the day of claimant’s accident, Rodriguez recorded the date, time and place of the accident, and in the box requiring the reporter to describe the accident in detail, Rodriguez wrote the words “See attached.” The next page of the report appears to be a typewritten narrative description of the accident entitled “Patron Accident Report for ‘Slick’ ” that was signed by Rodriguez. The attachment reports that claimant “lost his footing and fell to the gym floor,” and that claimant was able to get up off the floor unassisted, but that Rodriguez assisted claimant over to a bench. According to the attachment, Rodriguez applied an ice pack to claimant’s knee for approximately an hour and wrapped the knee with an ACE bandage. The attachment notes that “[a]pproximately three (3) feet from where ‘Slick’ fell, a section of the gym was closed off with safety cones,” and that the cones surrounded an area where a garbage can was set up to catch water leaking from the gym ceiling. The attachment concluded that Rodriguez inspected the area where claimant fell and that the “floor was dry and free of any defects.” Under examination by claimant’s counsel in his EBT, Rodriguez stated that he had not written the attachment, and that it was most likely written by his supervisor, Luis Lugo, who gave it to him to sign, and that he signed it sometime after he completed the Incident Report dated June 16, 1998. In the box on the Patron Accident Report where it required the reporter to list all witnesses, Rodriguez noted only that “Police Officer Martinez” was a witness to claimant’s accident.

The handwritten “Roberto Clemente State Park Incident Report” that Rodriguez completed on June 16, 1998 indicates that the “north court (middle/main) was closed due to a leak” and that Rodriguez set up a garbage can to catch water leaking from the ceiling and surrounded the can with cones. The Incident Report indicates that as claimant was chasing a loose ball in the direction of the can and cones, he slipped when he got close to the cones and fell to the floor. The Incident Report then notes that Rodriguez went over to claimant to see if he was alright, and claimant “got up on his own and walked to a bench in the gym.” The Incident Report continues to state that Rodriguez gave him a bag of ice and bandaged his leg and claimant “left the building shortly [thereafter].”

Another handwritten “Roberto Clemente State Park Incident Report” dated June 13, 1998 completed by Luis Lugo notes that Rodriguez was looking for an ACE bandage for someone who had fallen (see Defendant’s Exhibit A). The report notes that Lugo went to the scene of the accident and asked the injured party (“Mr. Slick”) whether he wanted “EMS,” the answer to which was “NO” (id.). The report states that “[t]he area in question was closed for the day due to a leak from the roof. A garbage can & cones were placed to provide a safe area[.] Floor was mopped before this incident occurred. According to Angel Mr. Slick fell about 3 ft. away from the garbage can & cones” (id.).

Martinez, however, did not prepare any report immediately following claimant’s accident. Rather, Martinez made a signed written statement in his handwriting about the incident on January 23, 2000 (see Claimant’s Exhibit 28). Although the statement indicates that the statement was “[a]ffirmed under penalty of perjury,” there is no indication that Martinez’s statement was sworn or notarized. According to the statement, Martinez was patrolling the gymnasium at approximately12:30 p.m. when he observed claimant running to retrieve a basketball and slip and fall in a puddle of water on the gymnasium floor that was not “roped off” (id.). On cross-examination, Martinez indicated that he did not make a written statement immediately following the accident because he verbally told Rodriguez what had happened so Rodriguez would put it in the report he would complete about the accident. Martinez testified that he made the written statement nineteen months after claimant’s accident after being directed to do so by one of his superiors, although he could not recall the identity of the individual who directed him to do so.
DISCUSSION
It is well-established that the State has a duty to maintain its premises “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], quoting Smith v Arbaugh’s Rest., 469 F2d 97, 100 [1973], cert denied 412 US 939 [1973]). In this “slip and fall” claim, in order to establish a breach of the State’s duty to maintain its premises in a reasonably safe condition, claimant must establish the existence of a dangerous condition, that defendant either created the dangerous condition or had actual or constructive notice of the dangerous condition, and that the dangerous condition was a proximate cause of claimant’s fall (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

“When an injury arises in the context of a sporting activity, the question of [the applicability of the doctrines of] assumption of risk must be considered” to determine the scope of defendant’s liability (Masline v State of New York, UID #2004-032-502, Claim No. 104521, Hard, J. [March 31, 2004]). There are two distinct doctrines of assumption of risk. “The first is embraced within the CPLR article 14-A concept of ‘culpable conduct attributable to the claimant’ (CPLR 1411) . . . [that] is akin to comparative negligence; it does not bar recovery, but diminishes recovery in the proportion to which it contributed to the injuries” (Lamey v Foley, 188 AD2d 157, 163 [4th Dept 1993]). The second is the “primary assumption of risk” doctrine, which can eliminate or reduce a tortfeasor’s duty of care to a participant who voluntarily engages in a sporting activity (id.; see also Morgan v State of New York, 90 NY2d 471 [1997]; Turcotte v Fell, 68 NY2d 432 [1986]). Under the primary assumption of risk doctrine, a defendant may be relieved of liability “when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” (Morgan, supra at 484). “Although the scope of a [claimant’s] assumption and consequent limitation upon a defendant’s duty may vary depending upon a particular [claimant’s] capacity to appreciate the risks of an activity, generally one is deemed to have assumed ‘those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation’ ” (Roberts v Boys & Girls Republic, Inc., 51 AD3d 246, 247 [1st Dept 2008], quoting Morgan v State of New York, supra at 484). The claimant “also assumes risks attributable ‘to any open and obvious condition of the place where [the sporting activity] is carried on’ ” (id. at 247-248, quoting Maddox v City of New York, 66 NY2d 270, 277 [1985]). “A defendant’s duty, then, is limited under the doctrine to ‘exercis[ing] care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, [the claimant] has consented to them and [the] defendant has performed its duty’ ” (id. at 248, quoting Turcotte, supra at 439).

The Court is unpersuaded by defendant’s contention that claimant is barred from recovery under the doctrine of primary assumption of risk based upon claimant’s status as an experienced basketball player who had played basketball in the gymnasium and who knowingly played basketball on a surface that had an open and obvious risk. “If an athlete is injured as a result of a defect in, or feature of, the field, court, track, or course upon which the sport is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk as long as [the] risk presented by the condition is inherent in the sport (Cotty v Town of Southampton, 64 AD3d 251, 254 [2d Dept 2009] [emphasis added]). Thus, “for purposes of determining the extent of the threshold duty of care, knowledge plays a role but inherency is the sine qua non” (Morgan, supra at 484). While an irregular playing surface or substances on an outdoor basketball court – including perhaps a puddle of water – may be a risk inherent in playing basketball on an outdoor court (see e.g. Sykes v County of Erie, 94 NY2d 912 [2000] [recessed drain]; Lincoln v Canastota Cent. School Dist., 53 AD3d 851 [3d Dept 2008] [“very wavy” pavement]; Mendoza v Village of Greenport, 52 AD3d 788 [2d Dept 2008] [hole]; Green v City of New York, 263 AD2d 385 [1st Dept 1999] [open and obvious defect]; McKey v City of New York, 234 AD2d 114 [1st Dept 1996] [hole]), “[a] wet floor on an indoor basketball court is not a risk inherent in the sport” (Porter v State of New York, UID #2008-015-501, Claim No. 112727, Collins, J. [Mar. 24, 2008]; see also Brathwaite v State of New York, UID #2009-040-050, Claim No. 109578, McCarthy, J. [June 26, 2009] [hole in indoor basketball court not a risk inherent in the sport]). The Court concludes that regardless of whether the puddle was open and obvious, a puddle of water on an indoor basketball court is not a risk inherent in the game. While defendant’s assertions as to claimant’s experience and familiarity with the gymnasium and the open and obvious nature of the puddle find support in the evidence, the fact that claimant slipped on a puddle on an indoor basketball court renders the primary assumption of risk doctrine inapplicable to this claim.

To establish defendant’s liability in this slip and fall claim, claimant must first prove that a dangerous condition existed. Both claimant and Martinez testified that claimant slipped in a puddle of water within the bounds of play on the basketball court and there was testimony that the basketball court could become slippery when it was wet.[7] Defendant, however, argues that the testimony of claimant and Martinez are not credible and should not be credited by the Court. Moreover, defendant notes that the reports prepared by Rodriguez failed to note the existence of a puddle of water and that Martinez did not make a statement about the accident until nineteen months after the accident.

After listening to Martinez testify and observing his demeanor as he did so, the Court finds Martinez to be a credible witness and credits his testimony that he saw claimant slip and fall in a puddle. The Court finds defendant’s attempts to impeach Martinez’s credibility unpersuasive, and while the Court finds it unusual that Martinez was asked to complete a statement about the accident more than a year and a half after the accident, the Court declines to draw any negative inference from this fact. Further, while the Court finds claimant’s testimony to be far less credible – and patently not credible with respect to certain portions of his testimony, as discussed infra – the Court will credit claimant’s testimony that he slipped in a puddle of water, as it is corroborated by Martinez’s testimony.

The Court further finds that failure of the reports prepared by Rodriguez and Lugo after the accident to note the existence of a puddle of water is unavailing and not dispositive. As an initial matter, the Court finds Rodriguez’s EBT testimony to be riddled with inconsistencies and uncertainties, and the Court concludes that his recollection of the events of that day is less reliable than that of Martinez. Indeed, Rodriguez admitted during his EBT testimony that he did not remember much from claimant’s accident before having the opportunity to review the Incident Reports prior to his EBT. The reports completed by Rodriguez and Lugo do not persuade the Court to find that claimant did not slip in a puddle. The typewritten attachment to the OPRHP Incident Report that was signed by Rodriguez and which noted that he inspected the floor and it was “dry and free of any defects” was not authored by Rodriguez, was made at some undetermined date after the accident, and the observation that the floor was dry and free of defects was made after the floor had been mopped at Martinez’s direction and after claimant had left the gymnasium. The Incident Report authored by Lugo sheds little or no light on whether claimant slipped in a puddle, as Lugo did not witness the accident and his observations were made some time after the accident. Accordingly, the Court finds that claimant slipped in a puddle of water on the basketball court, and that the puddle was a dangerous condition.

Claimant contends that defendant created the puddle since it channeled and diverted the leaks in the roof through the system of evaporation and drip pans and leader pipes. A contention that the State created a dangerous condition must be supported by proof that the hazard was “created by [defendant’s] own affirmative act” (Mercer v City of New York, 223 AD2d 688, 689 [2d Dept 1996], affd 88 NY2d 955 [1996]). While there was evidence adduced that evaporation and drip pans and leader pipes were set up to catch water and channel it so it would not drip onto the basketball court, there was no evidence adduced at trial as to the source of the leak that caused the puddle, i.e. did the leak come directly from a leak in the ceiling, from a leader pipe, or from a pan that overflowed? Thus, it would be speculative for the Court to conclude that the leak that caused the puddle was created by an affirmative act of defendant, and the Court does not so find.

Claimant argues that defendant had actual notice of the puddle, as Rodriguez had observed that water was dripping onto the basketball court during his inspection of the court that morning. Further, claimant argues that defendant had known for years that there were leaks in the roof and that it therefore had actual notice of the leaky roof that caused the puddle. A general awareness that a dangerous condition is present is legally insufficient to constitute notice of a dangerous condition (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]). While Rodriguez knew of the leak and defendant’s agents knew that the roof had leaks, those facts alone do not support a finding of actual notice. In proving actual notice, claimant must prove that defendant’s agents knew that there was a puddle on the basketball court floor in the early afternoon of June 13, 1998. As there was no evidence adduced at trial that any of defendant’s agents had actual knowledge of the puddle in which claimant slipped, the Court cannot find that defendant had actual notice of the puddle.

The claimant contends that defendant had constructive notice of the puddle as defendant’s actual knowledge of the leaks in the roof causing puddles on the basketball court floor constituted a recurrent dangerous condition under which defendant can be charged with constructive notice. Further, claimant argues that the puddle of water existed for a sufficient period of time prior to the accident to permit defendant’s agents to discover and remedy the dangerous condition.

“A [claimant] may establish constructive notice by demonstrating a recurring dangerous condition in the area of the slip and fall that was routinely left unaddressed” Solazzo v New York City Tr. Auth., 21 AD3d 735, 736 [1st Dept. 2005], affd 6 NY3d 734 [2005]). In this case, the evidence demonstrates that while there was a recurring dangerous condition in the gymnasium – to wit, the leaky roof that allowed water to drip onto the gym floor – there was no evidence that the dangerous condition was “routinely left unaddressed” (id.). To the contrary, the evidence demonstrates that defendant’s agents took temporary steps to address the leaky roof so that patrons could continue to use the basketball court. First, OPRHP staff set up evaporation and drip pans, leader pipes and plastic tarpaulins to catch the leaks and divert it so that it would not drip onto the basketball court. Second, in the event that water did leak onto the basketball court, OPRHP staff would set up garbage cans to catch the leaking water, set up cones around the can to warn patrons and take basketball hoops out of service if necessary. Moreover, OPRHP was in the process of providing for a permanent solution to fix the leaky roof through the roof replacement project. Thus, while OPRHP’s actions that day in preventing the puddle from forming may not have achieved its desired result, the Court finds that the recurring dangerous condition was not routinely left unaddressed.

“To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Gordon, supra at 837). The credible evidence demonstrates that a large puddle roughly fifteen square feet in size was plainly and visibly present on the northeast basketball court while claimant was playing basketball. The credible evidence also shows that the puddle extended several feet to the garbage can that was placed on the basketball court that morning by Rodriguez, and that the water leaking from the ceiling was not landing in the garbage can. Moreover, the evidence demonstrates that notwithstanding his initial effort to catch water that was dripping onto the gym floor, Rodriguez failed to check the area anytime after he set up the garbage can and cones in the morning. Therefore, the Court finds that the visible and apparent puddle was created by water dripping from a leak in the ceiling. The evidence that the water was dripping slowly – a drop every one to two seconds, according to Rodriguez – and that the puddle was approximately fifteen square feet in size supports the Court’s further finding that water had been allowed to accumulate and exist on the basketball court for a sufficient period of time to allow defendant’s agents to discover and remedy the dangerous condition. Accordingly, the Court finds that defendant had constructive notice of the puddle.

Having found that defendant had constructive notice of a dangerous condition that it failed to remedy, and finding that the dangerous condition was a proximate cause of claimant’s injury, the Court finds that the State is liable to claimant.

The Court now turns to the question of whether claimant was comparatively negligent and if so, whether his recovery will be diminished in proportion to his culpable conduct. “[P]roof that a dangerous condition is open and obvious does not preclude a finding of liability against a landowner for the failure to maintain the property in a safe condition but is relevant to the issue of [claimant’s] comparative negligence” (Cupo v Karfunkel, 1 AD3d 48, 52 [2d Dept 2003]). “There is no bright line test for determining what is open and obvious. The test is whether ‘[a]ny observer reasonably using his or her senses would see’ the condition” (Centeno v Regine’s Originals, 5 AD3d 210, 211 [1st Dept 2004], quoting Tagle v Jakob, 97 NY2d 165, 170 [2001]).

Claimant testified that he did not see the large puddle that caused his injury and further that he did not see the garbage can that was set up to catch the leaking water. However, Martinez credibly testified that the “pretty hefty” puddle of water was plainly visible when he went down onto the basketball court to assist claimant. Thus, as an initial matter, the Court credits Martinez’s testimony and finds that the puddle was indeed an open and obvious condition. After listening to claimant testify and observing his demeanor as he did so, and in consideration of all the other evidence received at trial, the Court finds claimant’s testimony that he did not see the puddle prior to his fall to be patently not credible. Claimant’s testimony that he had been alongside and on the basketball court for a total of twenty to thirty minutes before his accident but failed to notice the fifteen-square-foot puddle as well as the garbage can that was three or four feet high is simply not believable. Therefore, the Court is of the opinion that claimant did not testify truthfully, and the Court finds that claimant did in fact see and appreciate the open and obvious puddle of water before he slipped and fell. The Court concludes that claimant bears the lion’s share of responsibility for this accident, as he knowingly chose to play basketball on an indoor basketball court that had a plainly apparent large puddle of water on its playing surface.
CONCLUSION
Accordingly, the Court finds that both claimant and defendant share culpability for claimant’s accident, and the Court apportions that culpability seventy-five percent (75%) to claimant and twenty-five (25%) percent to defendant. The Chief Clerk is directed to enter an interlocutory judgment to this effect. Any motions not previously ruled upon are hereby DENIED. The claim will be scheduled for trial on the issue of damages as soon as possible.

Let judgment be entered accordingly.


November 20, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims




[1]. The claim of Celeste Hardwick, the wife of claimant Lamar Hardwick, is derivative in nature, and all references in this decision to “claimant” refer to Lamar Hardwick unless otherwise noted.
[2].As certain evidence was not available to both parties as of the last scheduled date of the trial, April 8, 2009, the Court held the record open for the receipt of such evidence into the record. The record was closed on May 14, 2009 after the Court received the remaining evidence, and the parties rested and made their closing arguments.
[3].The transcript of Angel Rodriguez’s testimony was received into evidence as Defendant’s Exhibit B, without objection. Claimants also introduced portions of Rodriguez’s testimony in their case in chief.
[4]. All quotations are to the Court’s trial notes or the digital audio recording of the trial, unless otherwise indicated.
[5]. The steps in the process were set forth in detail during Bagley’s testimony, and are documented in claimant’s exhibits 1-5 and 7-10.
[6].Martinez actually testified that the bench was located outside the “recreation room” which the Court interprets to mean the “game room.”
[7].The Court dismisses defendant’s observation that claimant failed to provide expert testimony to demonstrate whether the playing surface had skid resistant qualities, as claimant demonstrated through the credible testimony of fact witness Rafael Muriel that the floor in this gym could get slippery when wet.