New York State Court of Claims

New York State Court of Claims
FERREIRA v. THE STATE OF NEW YORK, # 2010-015-502, Claim No. 112230


Pro se inmate claim for injuries sustained when inmate fell in hole in outfield while playing softball was dismissed for lack of notice following trial. Although claimant did not assume risk of falling in the hole, notice of condition was still a prerequisite to recovery.

Case information

UID: 2010-015-502
Claimant short name: FERREIRA
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112230
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Felipe Ferreira, Pro Se
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Kent Sprotbery, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 21, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, a pro se inmate, seeks damages for personal injuries sustained when he allegedly fell in a hole while jogging. The claim proceeded to trial on October 21, 2009.

The claim filed on April 19, 2006 alleges, in part, the following:

"4. On and prior to April 24th, 2004, the defendants disregarded their duty by negligently and carelessly permitting the recreational area at Mount McGregar [sic] to be improperly and dangerously maintained in an unsafe condition in that the recreational area where jogging exercise was designated to take place had holes in the ground.

5. On the 24th day of April, 2004 claimant, Fellpe [sic] Ferreira, while jogging in this area appropriated for such exercise fell through one of these holes and injured my left knee, at approximately 9:45 PM. The need for repairs was well known by the Superintendent of Mount McGregor Correctional Facility."

Claimant alleges that as a result of the above incident he sustained a tear of both the anterior cruciate ligament (ACL) and medial collateral ligament (MCL) of his left leg, swelling, bruising, and recurring headaches.

Although the claim would appear to indicate that the claimant was jogging at the time of his injury, his testimony at trial as well as the admission history provided by the claimant on April 24, 2004, and the report of inmate injury of the same date, indicate that the claimant was participating in a baseball game when he encountered a "hole" while attempting to retrieve a fly ball. While the claim speaks in terms of an unsafe condition in an area "where jogging exercise was designated to take place", claimant testified at trial that the hole into which he stepped, which he described as approximately twelve inches deep, was located "in the middle of the yard". The claimant testified that he stepped in the hole and "heard something pop".

Following the incident the claimant was taken to the facility infirmary where he remained until April 26, 2004. The claimant was readmitted to the infirmary on April 27, 2004 and the admission form for that date indicates that the claimant was "readmitted after hamstring strain". While in the infirmary the claimant's left leg was elevated, his knee was treated with ice and crutches were issued. An X-ray of the claimant's left knee was taken on May 18, 2004. A subsequent MRI performed at Coxsackie Correctional Facility on July 16, 2004 revealed a tear in both the claimant's left ACL and MCL. A medical examination of the claimant's left knee by R. Mitchell Rubinovich, M.D., resulted in a recommendation that "we do a Scope and an ACL Reconstruction with a Hamstring Tendon Autograft".

On cross-examination Mr. Ferreira testified that he arrived at the Mt. McGregor Correctional Facility in approximately August, 2003. He testified that he did not participate in baseball games at Mt. McGregor during the late summer and fall of 2003. Although he was in the yard during the aforementioned time period, the claimant testified at trial that he did not participate in any sporting events in the recreation yard at Mt. McGregor during 2003. Claimant further testified that the date of his injury, April 24, 2004, was the first day the recreation yard at Mt. McGregor was open in calendar year 2004. On April 24, 2004 the claimant participated in an afternoon baseball game but did not play in the outfield. He was aware that the playing field was not perfectly level but stated "I didn't know that they got a hole". That evening he participated in a second baseball game which began at approximately 6:00 p.m. At approximately 9:45 p.m. the claimant was in the outfield when, as he attempted to catch a ball, he stepped in a hole approximately twelve inches deep which was located in the deepest portion of left field. He stepped in the hole, heard a popping sound and fell to the ground. Correction officers responded to his location and later escorted him to the infirmary.

The defendant presented no witnesses and moved to dismiss the claim at the close of the claimant's proof for failure to establish a prima facie case and upon the claimant's assumption of the risk of injury as a result of his participation in a baseball game. The Court denied both motions at trial.

The doctrine of primary assumption of risk relieves an operator of a sporting venue from liability for "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]). A defendant's duty in such cases is to exercise that degree of care necessary to make the conditions as safe as they appear to be (Morgan, 90 NY2d at 484; Turcotte v Fell, 68 NY2d 432, 439 [1986]). The risks assumed by the participant therefore include those which commonly inhere in the sport, including any obvious condition on the playing field or court (see Trevett v City of Little Falls, 6 NY3d 884 [2006]; Sykes v County of Erie, 94 NY2d 912 [2000]; Scaduto v State of New York, 86 AD2d 682 [1982], affd 56 NY2d 762 [1982]; Maddox v City of New York, 66 NY2d 270, 277 [1985]; Brookstone v State of New York, 64 AD3d 1023 [2009]; Cruz v State of New York, 1 AD3d 747 [2003]; LaSalvia v City of New York, 305 AD2d 267 [2003]; Mendoza v Village of Greenport, 52 AD3d 788 [2008]; Ciocchi v Mercy Coll., 289 AD2d 362 [2001]; Colucci v Nansen Park, 226 AD2d 336 [1996]). Conversely, a participant in a sporting event does not assume "risks that are unreasonably increased . . . or above the usual dangers inherent in the sport" (Lapa v Camps Mogen Avraham, Heller, Sternberg, 280 AD2d 858, 859 [2001] [citations and quotation marks omitted]). Such risks include concealed holes in the playing field (Schmerz v Salon, 26 AD2d 691 [1966], affd 19 NY2d 846 [1967]; Ellis v City of New York, 281 AD2d 177 [2001]; Lester v City of New York, 234 AD2d 92 [1996]) or other hazards which, while obvious, unreasonably increased the usual dangers which inhere in the sport (see Cruz v City of New York, 288 AD2d 250 [2001] [high school football player collided with a push sled improperly located three or four feet from the sideline]; Greenburg v Peekskill City School Dist., 255 AD2d 487 [1998] [basketball player crashed into an unpadded brick wall located less than the recommended distance beyond the endline]; Clark v State of New York, 245 AD2d 413 [1997] [basketball player was injured due to steep drop-off several inches from the edge of the playing area's asphalt surface]). In Henig v Hofstra Univ. (160 AD2d 761 [1990]), where a football player was injured due to a hole in the playing field, the Court held that a question of fact existed regarding whether or not the hole, which was described by the plaintiff to be several feet wide and several inches deep, was "representative of the various hazards to which football players normally expose themselves" (Id. at 762). Here, the facts adduced at trial do not permit the conclusion that the injury-producing hole in the outfield, which was described by the claimant as approximately twelve inches deep, was representative of the hazards to which softball players normally expose themselves. In the Court's view, the presence of a twelve-inch deep hole in the outfield unreasonably increased the usual dangers inherent in the sport. Under these circumstances, the doctrine of primary assumption of risk does not exculpate the defendant from liability. Notwithstanding this determination, however, claimant failed to establish by a preponderance of the credible evidence that the defendant was negligent. As a landowner, the State owes the same duty of care as a private individual to maintain its property in a reasonably safe condition under the circumstances (Preston v State of New York, 59 NY2d 997, 998 [1983]; Gonzalez v State of New York, 60 AD3d 1193 [2009]; see also Basso v Miller, 40 NY2d 233 [1976]). In order to establish liability in a premises liability case, the claimant was required to prove that the defendant either caused the dangerous condition or had actual or constructive notice of its existence (Reid v State of New York, 61 AD3d 1063 [2009]; Gonzalez v State of New York, 60 AD3d 1193 [2009]; Seaman v State of New York, 45 AD3d 1126 [2007]; Heliodore v State of New York, 305 AD2d 708 [2003]). "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 a defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837[1986] [citations omitted]). The notice requirement is no less applicable in the context of a sports- related injury. For example, in Siegel v City of New York (90 NY2d 471 [1997]), one of the four cases decided by the Court of Appeals in Morgan v State of New York (90 NY2d 471 [1997]), the plaintiff was injured when he snagged his foot in a torn hem at the bottom of a net dividing indoor tennis courts. While the Court held that the doctrine of primary assumption of risk did not exculpate the sporting facility owner from liability for the ordinary type of negligence alleged (Id. at 488-489), it also noted the fact that plaintiff had known for over two years that the net was ripped and other members of the sporting facility had advised the facility's management of the problem. In that case, therefore, the defendant's actual knowledge of the allegedly dangerous condition clearly foreclosed summary dismissal of the claim (cf. Quackenbush v City of Buffalo, 43 AD3d 1386 [2007]; Schiff v State of New York, 31 AD3d 526 [2006]; Engstrom v City of New York, 270 AD2d 35 [2000]; Mc Bride v City of New York, 17 Misc 3d 1119 [A] [2007]; Black v State of New York, 8 Misc 3d 1025 [A][2005]). Here, by contrast, the proof adduced at trial failed to establish that the defendant had either actual or constructive notice of the condition. Nor was any evidence presented as to the cause of the hole. As a result, claimant failed to establish the defendant's negligence by a preponderance of the credible evidence.

Accordingly, the claim is dismissed and the Clerk of the Court is hereby directed to enter judgment accordingly.

January 21, 2010

Saratoga Springs, New York


Judge of the Court of Claims