Opinion
# 2014-028-002 Claim No. 119276
04-17-2014
ALLYSIA ROHLEHR v. CITY UNIVERSITY OF NEW YORK
PHILIP J. RIZZUTO, P.C.KENNETH R. SHAPIRO, ESQ. HON. ERIC T. SCHNEIDERMAN, ATTORNEYGENERALBY: Edward J. Curtis, Jr., Esq.Assistant Attorney General
Synopsis
Claimant, a basketball play was injured when she ran into an unprotected area that had been cutout of the surrounding padded walls, did not assume the risk of injury from that defect, which isnot a risk inherent in the sport of basketball.
Case information
| UID: | 2014-028-002 |
| Claimant(s): | ALLYSIA ROHLEHR |
| Claimant short name: | ROHLEHR |
| Footnote (claimant name) : | |
| Defendant(s): | CITY UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119276 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | PHILIP J. RIZZUTO, P.C.KENNETH R. SHAPIRO, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEYGENERALBY: Edward J. Curtis, Jr., Esq.Assistant Attorney General |
| Third-party defendant'sattorney: | |
| Signature date: | April 17, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
This action arose on March 11, 2010 in a gymnasium located on the sixth floor of abuilding at 17 Lexington Avenue in New York City, which was owned by the City University ofNew York (CUNY). Trial of the action was bifurcated, and this decision relates only to the issueof liability.
At the time she was injured, Claimant Allysia Rohlehr was a 16-year-old junior at St.Michael's Academy and a member of the school's girls' basketball team. She had been amember of the team for several years and testified that they practiced every weekday andoccasionally on weekends. They used a number of gyms in the area for their practices. Theseincluded gyms in Harlem, on the Lower East Side, and at St. John's University, as well asDefendant's gym at 17 Lexington Avenue. Each afternoon, the team's coach, Apache Paschall,would send a text message to the team members telling them in which gym practice was to beheld.
Coach Paschall is now deceased.
The girls' basketball team had practiced at the subject gymnasium on at least tenoccasions prior to the March 11th session, Claimant stated, and she considered herself familiarwith its layout. She was aware that the walls, including those at the far end of the basketballcourt behind the hoops, were padded and that at certain locations, there were sections of thepadding ("cutouts") where there was no padding. She was not aware, however, that there weremetal plates or locks within any of the cutout sections. She said she did not realize the threat tosafety that was posed by the cutouts.
Although these spaces are referred to throughout as "cutouts", it appears from the photographic evidencethat the openings were planned features and the padding removed when the pads were originally installed, since theedges and sides of the cutouts were covered with the same outer material as the rest of the padding and had finishedseams.
Asked whether she would have objected if she had thought about it, Claimant said sheprobably would not have done so, because she would be concerned that her coach would viewher unfavorably and might not keep her on the team. She acknowledged, however, that the coach had instructed the players to be careful when practicing in this particular gym, saying "thewall is pretty close, so be careful." She described this distance between the court's edgeline andthe wall as "less than a stride.," and said that players "often" hit the wall in the course of a gameor practice. On cross-examination, Claimant stated that she depended on the presence of thepadding to "soften" any contact she might have with the wall.
Unless otherwise indicated, all quotations are from the Court's notes written during the trial.
When shown Exhibits 2 through 8, Claimant identified the gymnasium where they wereplaying on the day of her accident, and she pointed out Exhibits 7 and 8 as showing the wall withwhich she collided. There are three cutouts in the padding along that wall, the largest beingalmost immediately behind the hoop. Exhibits 3 and 6 show close-ups of that larger rectangularcutout. In that space is a divided metal plate, with a hasp across the division and a padlock in thehole sticking out from the hasp. In addition, a wire runs from the padlock to a hole in the platefurther above. It appears that one could remove the lock, open the hasp, and then open a "door"created by two parallel sections of the padding. Rohlehr indicated that she came into contactwith the wall at the location of that cutout.
On March 11th, Coach Paschall had directed the players to perform a drill in which theplayers were lined up on both sides of the foul lane. The Assistant Coach would then call out thenumbers of two players and roll a ball forward. Both players were to attempt to recover the balland shoot a basket, and the player who did not get the ball was to defend against the shot. On theoccasion when she was injured, Claimant was initially located at one of the elbows of the foullane near the foul line, while the other teammate whose number was called was located closer tothe basket at the opposite lane block. Her teammate recovered the ball and attempted to shoot asClaimant ran forward and jumped high in an effort to block the shot. She did not succeed inblocking it, and while she was still in the air after jumping, she turned to watch the ball go intothe basket. She stated that she did not look ahead to see how close she was to the wall or whereshe might hit it. Her feet had not yet landed on the floor when she struck the wall, at the locationof the described cutout, with her right shoulder and right collarbone. Immediately thereafter, shefell to the floor. She was transported to a hospital by ambulance, where a broken collarbone wasdiagnosed.
Prior to 2009, the building in which the gymnasium was located had been occupied for anumber of years by Baruch College Campus High School, which is operated by the New YorkCity Department of Education. The school's principal, Alicia Perez-Katz, testified that evenafter the high school moved to another location, it continued to rent the gymnasium for itsathletic team. The high school did not, however, perform any maintenance or repairs to thegymnasium, and it was her understanding that at all times, even prior to 2009, the entityresponsible for operating and maintaining the property was Baruch College, which is part ofCUNY.
Raymond Rankis, Athletic Department Coach for Baruch College, testified that at thetime of the accident, the gym was in essentially the same condition as it had been when he wasfirst hired in 1984. It was used by Baruch College as a gymnasium until 2002, and for awhileafter that by the Baruch College Campus High School. He confirmed that Baruch College was apart of CUNY while the high school was not. It was the college that was responsible formaintaining the gymnasium, even during the period when the building was used by the highschool. After the high school moved to another location, it was one of several entities, such ascollege clubs and school teams, that rented the gymnasium for certain times for its basketballpractices or other activity. Rankis did not know whether St. Michael's had a written agreementwith Baruch College for its use of the gym and, in fact, prior to Claimant's accident he had notheard of St. Michael's Academy.
The gym's padding, he stated, was placed on the walls to provide protection forbasketball players who ran beyond the court's baselines. The protection was especially needed inthis court, he said, because the distance from the baselines to the walls was shorter than in manyother gymnasiums. The distance from the baseline to the wall behind the baskets was 3 feet,while in most of the gymnasiums he had seen, the distance was 5 to 10 feet.
Rankis said the padding had been replaced sometime in the 1990s, but that during theentire time he had worked there (27 years), portions of the padding were cut out, leaving exposedwhatever was on the wall itself behind the cut out padding. The cutout pictured in Exhibits 3and 6 was needed to provide access to an area behind the wall that was used to store equipment. Rankis acknowledged that the unpadded sections of the wall posed a potential danger to players,as the surfaces at the back of the cutouts were hard, made of metal or wood. He said thatsomeone playing basketball might be aware that there was a cutout at a certain location, but stillnot know what surface features were exposed unless they went up to the opening and looked in.
When questioned, Rankis stated he was not aware of anything that would have preventedthem from filling the cutout area with a piece of padding that was secured with velcro, making itremovable when the storage area had to be accessed. He said they never thought of taking sucha step, because there had been no prior accidents of this nature. When asked to estimate the usethat the gym received, Rankis said there were as many as 1,000 players every month. He furtherestimated that probably once a game some player would come into contact with the wall. Theseincidents were written up only when there was an injury.
Ilya Ashmyan, Chief Administrative Superintendent of Building and Grounds for BaruchCollege, identified Exhibit 1 as the incident report relating to Claimant's accident. He describedit as a document that is completed whenever an accident occurs. The report merely indicated thatwhen EMS personnel arrived, Claimant was sitting down "holding her right shoulder andgrimacing in pain." The report contains a statement attributed to Coach Paschall, stating she"ran into the wall (injuring her right shoulder)." No additional details were provided. Ashmyanconfirmed the gymnasium had looked the same since he was hired in 2007, and there had alwaysbeen certain cutout areas where there was no padding. He also agreed that the purpose of thepadding was to protect the safety of those who used the gym.
The incident report lists the date of the occurrence as March 12, 2010. All other evidence and testimonyindicates that it occurred on March 11.
Director of the Athletic Facility and Operations Machli Joseph testified that schools(other than Baruch College itself) or clubs needed the college's permission to use thegymnasium. He was aware St. Michael's basketball team used the gym, although he had neverseen them there. He said some of the organizations making use of the gymnasium had writtenrental agreements, but he could not recall having such an agreement with St. Michael's.
When asked about the storage area behind the cutout with which Claimant collided,Joseph said he had never seen anyone go into that room but knew it had been used as a supplyroom by the Baruch High School team. He understood that the same high school team used thesupply room even after the high school moved. According to Joseph, the baselines of thebasketball court were 2 to 3 feet from the surface of the padding, and he also indicated that thisdistance was much shorter than it was in other facilities he had seen. Joseph said that he himselfhad crashed into the wall when playing in this gym on prior occasions.
Steve Bernheim was Claimant's expert and had many years experience in riskmanagement and forensic investigations in the sports and leisure world. He testified he hadphysically inspected the basketball court, in the company of Mr. Rankis, and takenmeasurements. He found the distance between the baseline and the wall behind the basket inquestion to be 32 inches, which he said was "minimal" and shorter than the required standardsfor either the High School Federation or the National Collegiate Athletic Association (NCAA). This particular gymnasium was not required to meet either of these standards, but theorganizations' requirements provide evidence of standards and usage within the sport. Theoverall court dimensions also did not conform to recommendations of the Architectural GraphicsAssociation, being ten feet shorter than their recommended gymnasium dimensions. As ageneral rule, he stated, in any gymnasium the area behind a basket should be at least 3 feet deep,while 12 feet is the recommended depth.
In Bernheim's opinion, the cutouts in the walls' padding created a dangerous conditionthat should have been repaired. There were a variety of ways that the repair could have beeneffected and still preserved the access to areas behind the wall, if that was needed. One relativelysimple way would be the one previously mentioned: filling at least the larger cutout areas withpieces of padding, 2 ½ inches thick like the padding on the wall, and securing it by velcro strapsso that it could be removed when necessary. It would also be possible to shorten the court itself,although doing so would rule out certain categories of games. He stated that encounteringuneven, exposed metal surfaces and objects on a wall that was otherwise padded is not one of therisks normally associated with playing basketball, and he indicated that he had never seen acondition similar to this one in any gym used for basketball.
APPLICABLE LAW AND DISCUSSION
A Primary assumption of risk
When injuries occur to someone engaged in a sporting activity, the doctrine ofprimary assumption of risk may relieve the operator of the facility or venue in which the injuryoccurs from liability if the injury arises from the "inherent risks of engaging in a sport . . . when aconsenting participant is aware of the risks; has an appreciation of the nature of the risks; andvoluntarily assumes the risks" (Morgan v State of New York, 90 NY2d 471, 484 [1997]). Aparticipant in sporting activities "accepts the dangers that inhere in it so far as they are obviousand necessary" (Murphy v Steeplechase Amusement Co., 250 NY 479, 482 [1929]). Assumptionof risk in competitive athletics "is not an absolute defense but a measure of the defendant's dutyof care." and the duty of the property owner in this context is simply to make the conditions "assafe as they appear to be" (Turcotte v Fell, 68 NY2d 432, 439 [1986]).
The doctrine of primary assumption of risk applies not only to the activity itself but alsoto "any open and obvious condition of the place where it is carried on" (Maddox v City of NewYork, 66 NY2d 270, 277 [1985] [citation omitted]). Consequently, in Perez v New York CityDept of Educ., (2014 WL 1228208 [2d Dept 2014]), a basketball player put his arm through apane of glass in one of the gym's entrance doors, doors that were in plain view and situatedbeyond the baseline. His action against the gym's owner was dismissed because he was held tohave assumed "the obvious and inherent risk of coming into contact with the pane of glass in theentrance door" when he elected to play basketball on that court. For a sports participant toassume the risk of both the sporting activity and the condition of the place where such activity istaking place, however, he or she must have "not only knowledge of the injury-causing defect butalso appreciation of the resultant risk" (Maddox v City of New York, 66 NY2d at 278). Theparticipant's awareness of such risk is to be assessed in light of his or her background in the sportand experience (Hyde v North Collins Cent. School Dist., 83 AD3d 1557 [4th Dept 2011]).
While knowledge of obvious defects and appreciation of the danger they pose plays a rolein determining whether a specific risk has been assumed, "inherency is the sine qua non"(Morgan v State of New York, 90 NY2d at 484). The critical inquiry, therefore, is "whether theconditions caused by the defendants' negligence are 'unique and created a dangerous conditionover and above the usual dangers that are inherent in the sport' " (Id. at 485, quoting Owen vR.J.S. Safety Equip., 79 NY2d 967, 970 [1992]; see also Gerry v Commack Union Free SchoolDist., 52 AD3d 467, 469 [2d Dept 2008] [same]). As one Justice has framed it, "while someknown or open and obvious conditions of a playing surface or space may be inherent in a sport,not all such conditions can be considered risks that are inherent" (Palladino v Lindenhurst UnionFree School Dist., 84 AD3d 1194, 1200, Skelos, J.P., concurring opn [2d Dept 2011] [extendeddiscussion]). An example of injury caused by an open and obvious condition that did not triggerassumption of the risk is found in (Cruz v City of New York, 288 AD2d 250, [2d Dept 2001]).In that case, a large piece of equipment (a push sled) was left close to a football field rather thanbeing placed far away to keep players who ran out of bounds from hitting it. The Court held thatthe sled's location "created a dangerous condition over and above the usual dangers" inherent inthe sport of football (see also Robinson v New York City Dept of Educ., 94 AD3d 428, 429 [1stDept 2012] [basketball player injured his finger on a wire cage built to protect a light fixture nearthe basket; the cage was visible and player knew it was there]).
Relevant to determining whether the condition in question created a risk of danger overand above those naturally inherent in the sport are "rules and customs whose purpose is toenhance the safety of participants" in a particular sport and "the standards maintained by othersimilarly used facilities" (Turcotte v Fell, 68 NY2d at 440, 442; see also Wilkes v YMCA ofGreater New York, 68 AD3d 542 [1st Dept 2009] [no liability because expert failed to identifyany specific industry standard that was violated]; Ribaudo v La Salle Inst., 45 AD3d 556, 557 [2dDept 2007] [same]). Particularly important are the rules and customs developed to enhance thesafety of players (Braithwaite v State of New York, 26 Misc 3d 1239 (A) [Ct Cl 2009]), becausean inadequate or improperly secured safety feature can give a false sense of security to those itwas designed to protect (Manias v Golden Bear Golf Ctr., Inc., 21 Misc 3d 1126 [A] [Sup. Ct.,Erie County 2006], affd 46 AD3d 1461 [2007].
A decision frequently referenced by those attempting to distinguish a risk that is inherentin the sport from one that was not assumed by the participant is Siegel v City of New York, (230AD2d 782 [2d Dept 1996] revd sub nom. Morgan v State of New York, 90 NY2d 471 [1997]). The Appellate Division had dismissed the action in which an indoor tennis player tripped and fellwhen he snagged his foot in a torn vinyl hem of the net that divided the court because the player"assumed the risk of becoming injured through contact with the dividing net." Despite the factthat the player had known for some time that the net was ripped, the Court of Appeals reversed,holding that "a torn or allegedly damaged or dangerous net--or other safety feature--is by itsnature not automatically an inherent risk of a sport as a matter of law" or, stated another way "atorn net is not sufficiently interwoven into the assumed inherent risk category" (id. at 488) (seealso Bunn v Town of N. Hempstead, 109 AD3d 627 [2d Dept 2013] [basketball player tripped onmetal cap in the floor which was part of a defunct sprinkler system]; Clark v State of New York,245 AD2d 413 [2d Dept 1997] [steep drop-off several inches from the edge of the basketballcourt's playing area created a dangerous condition that was over and above the usual dangers thatare inherent in the sport]).
While a player overrunning the baseline of a basketball court and hitting against whateverlies there in the course of a game or practice session is an expected and normal part of playingthe sport, the defendant is not necessarily absolved from liability for injuries caused by suchcollisions. In Greenburg v Peekskill City School Dist., 255 AD2d 487 [2d Dept 1998] abasketball player crashed into a brick wall behind the basket. Despite the fact that the shortdistance between the wall and the endline of the court (less than 3 feet) was obvious, the courtheld that there was a question of fact as to whether the dimensions coupled with the lack ofpadding "created a dangerous condition over and above the usual dangers inherent in the sport." There are other situations in which a feature that was open and obvious but nevertheless found tocreate a risk of harm beyond that inherent in the sport itself. Examples include a uniqueguardrail design and the unusual placement of barrels around the guardrail that may have created"a dangerous condition over and above the usual dangers that are inherent in the sport of autoracing" (Owen v R.J.S. Safety Equip., 79 NY2d 967 [1992]); an unpadded wall that can create arisk beyond those inherent in the sport if lack of padding violates applicable standards relating tobasketball courts (Ribaudo v La Salle Inst., 45 AD3d 556, 557 [2d Dept 2007]); and large objectsbeing placed within three feet of the edge of a basketball court, representing unreasonableincreases beyond the normal risks of the game (Owens v City of New York, 2003WL 21709582[NY App Term. 2003]).
In the instant case, the cutouts that were present all along the padded walls of thegymnasium were immediately observable. Whether they would be immediately perceived as athreat to safety, however, is another matter. Most of the cutouts were small and would pose nohazard (see Exhibits 2, 4-5, 7-8), and Rankis testified that it was difficult for someone using thegym to know what was within each cutout space unless they specifically went close to each andlooked in. Perhaps most importantly, the fact that they were intentionally-made cutouts upon asignificant safety device would logically suggest that they were harmless, for why would anyonecreate a danger at the same time they were creating something for protection of the players? Thesurrounding protection of 2 ½ inches of padding along all four walls would inevitably give theplayers a sense of security that they would have no reason to question. To be able to say that aplayer has assumed the risk of participating in a sport in a particular setting, it must beestablished that he or she had knowledge of the injury-causing defect and also appreciated therisk of harm that it presented. While Claimant was aware of the cutouts, the Court is notconvinced that Claimant either recognized them as defects or realized that they posed a danger tobasketball players like herself.
In addition, the legitimate confusion created by Defendant's actions - providingprotective padding but at the same time directing removal of portions of it so as to create adangerous condition - has nothing to do with the inherent risks of participating in the sport ofbasketball. It is, along with the examples given above, something that is "over and above" thoseusual dangers. Consequently, in the circumstances presented here, Defendant cannot rely on thedoctrine of primary assumption of the risk in this claim.
B. Negligence
Determining that the primary assumption of the risk doctrine does not apply does not doaway with the requirement that claimant must still prove a cause of action for simple negligence. The elements of such a cause of action are: (1) the existence of a duty owed on the part of thedefendant to the plaintiff, (2) a breach of that duty, and (3) injury suffered by the plaintiff as aresult of the breach (Solomon v City of New York, 66 NY2d 1026 [1985].
With respect to the duty owed Claimant in this situation, Defendant asserts that the St.Michael's Academy girls' basketball team was a trespasser on its property and thus was owed alesser duty than that which would be owed to licensees or invitees. There are two significant problems with this argument.
Under traditional analysis, the duty owed by property owners to those who are invited onto their propertyis the general duty of using ordinary or reasonable care to render the premises reasonably safe while the invitee is onthe property (4 Pattern Discovery Tort Actions § 36:9). For licensees, the duty owed is a particular, rather thangeneral, duty of using reasonable care to avoid creating any condition on the premises which to one of ordinaryprudence and foresight could be reasonably held to be a dangerous instrumentality for harm (id.). With respect totrespassers, who have no invitation or licence to be on the property, the landowner owes no duty to safeguard thatperson from harm, although there are certain basic duties owed if the landowner is aware that a trespasser is makinguse of the property (id.)
--------
First, if Claimant's status as a trespasser was legally relevant, there is no credibleevidence to support this assertion and good reason to doubt it. The fact that neither Rankis norJoseph could recall whether there was a written rental agreement with the school is far fromproving that there was no such agreement or that the Academy's right to make use of thegymnasium had not been established in some other way, perhaps an oral contract orunderstanding. Further, Claimant stated that she had participated in practices at this location onat least ten occasions, and it is highly unlikely that this would have escaped notice of those incharge of the building or that they had no conflict with another club or team that was also makinguse of the gym. No credible evidence was presented that would lead to the conclusion thatClaimant and/or her basketball team was a trespasser on Defendant's property.
More importantly, the rigid classifications of people coming onto property and thevarying duties owed to them (see Footnote 4) have been abandoned in New York and the singlestandard requiring that at all times a property owner should "act reasonably to maintain safeconditions in view of all the circumstances" has been adopted (Basso v Miller, 40 NY2d 233,241 [1976]). The circumstances that must be considered include "the likelihood of injury toothers, the seriousness of the injury, and the burden of avoiding the risk" (id. quoting Smith vArbaugh's Rest., Inc., 469 F2d 97 [DC Cir 1972]). Also shaping the landowner's duty are factorssuch as " [t]he use to which [the] property is put, and the frequency of that use by others" (Taylorv Lands End Realty Corp., 93 AD3d 1062, 1064 [3d Dept 2012], citing Peralta v Henriquez, 100NY2d 139, 144 [2003]).
In the instant case, Defendant's property was used, frequently, for recreational activity bya number of clubs, school teams, and similar entities, meaning that there were a large number ofpeople, many of them quite young, who engaged in vigorous activity within the gymnasium. The likelihood of this type of harm occurring from the defect that was created by Defendant,given the number of years the gymnasium had been in use for such activity with apparently norecord of similar accidents, was low. On the other hand, as Claimant's injury demonstrates, anyinjury that would occur from forceful contact with the exposed irregular metal plates was likelyto be serious. Finally, and most significantly, the burden of totally avoiding the risk of this typeof harm is so slight as to be almost nonexistent.
The Court holds that under these circumstances, Defendant failed to carry out its duty toact reasonably to maintain safe conditions and consequently is liable to Claimant for the injuriessuch failure caused. Furthermore, the Court determines that Defendant is 100% liable for theseinjuries and that Claimant is not at fault. Her inattention to where she would contact the wallwas behavior entirely normal and expected in the course of a basketball practice or game. In fact,it was because such behavior is normal and expected that Defendant installed the surroundingpadding in the first place.
The Chief Clerk is directed to enter interlocutory judgment in Claimant's favor, holdingDefendant 100% liable for her injuries. This matter will be scheduled for trial on the issue ofdamages as soon as practicable..
April 17, 2014
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims