Opinion
# 2016-015-609 Claim No. 123948
08-10-2016
RAYMOND GASTON v. THE STATE OF NEW YORK
Franzblau Dratch, P.C. By: Brian M. Dratch, Esquire Honorable Eric T. Schneiderman, Attorney General By: Michael T. Krenrich, Esquire Assistant Attorney General
Synopsis
Claimant, an inmate, alleged damages for injuries sustained during the course of a prison soccer game when his foot came in contact with the ground. Although claimant testified that he observed a nearby hole in the wet grassy ground after the incident, a post-accident inspection of the area revealed no defect or hole in the playing field and claimant's statement that his foot came in contact with the ground was equally consistent with the absence of a hole. As a result, the claim was dismissed for claimant's failure to establish the existence of a concealed risk or that any such risk was a proximate cause of his injury.
Case information
| UID: | 2016-015-609 |
| Claimant(s): | RAYMOND GASTON |
| Claimant short name: | GASTON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123948 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Franzblau Dratch, P.C. By: Brian M. Dratch, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Michael T. Krenrich, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 10, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks damages for injuries sustained in a soccer game while an inmate in the custody of the Department of Corrections and Community Supervision. This decision follows a bifurcated trial on the issue of liability.
The claimant testified that in 2013 he had been an inmate at Shawangunk Correctional Facility for three years and that he had participated in a voluntary facility soccer league each year. He testified that in prior years he had observed what he described as "holes" in the E-Yard field where the soccer games were held. He testified that the holes were made by correction officers while inspecting the soccer field for possible weapons.
All quotations are taken from the audio recording of the proceedings at trial. --------
On August 22, 2013 at approximately 8:00 p.m. the claimant was playing in a soccer game, following an opponent, when a loose ball occurred. Claimant testified that as he attempted to clear the ball from his zone, he heard a crack and observed a "hole in the field" which he described as wet and grassy. An inmate injury report (Exhibit 2) prepared following the incident indicates the claimant suffered a lower right leg injury and was sent to an outside hospital for treatment. A statement attributed to the claimant contained in Exhibit 2 indicates that he attempted to kick a soccer ball, heard a loud crack and his "right foot broke in half inside a ditch hole". In a grievance filed on September 12, 2013, claimant requested that any holes in the soccer field created by Correction Officers searching for weapons be covered to prevent potential injuries. Claimant submitted Exhibits 4 and 4-A, photos depicting the Shawangunk Correctional Facility soccer field where the claimant was injured. Claimant marked Exhibit 4 (Exhibit 4-A) to indicate his location on the field at the time he was injured.
On cross-examination claimant testified that he had played in the Shawangunk Soccer League since his arrival at the facility in 2011. He agreed that participation was voluntary and the same field had been used for league soccer games in each of the three years he had participated in the league.
On August 22, 2013 claimant was participating in a play-off game which had been underway for approximately 40 to 45 minutes. He estimated that he was in the area where the alleged "hole" was located for approximately five minutes prior to being injured. Although he was aware that the Shawangunk soccer field was uneven, claimant testified that he did not see the hole before he encountered it, nor was he aware that the hole was there prior to the time he stepped into it. Claimant was unable to describe either the width or depth of the hole and agreed that although he had played on the field for three years, he had never filed a complaint or grievance regarding the condition of the field.
The defendant called as a witness Glenn McCord who testified that he has been a Correction Officer at Shawangunk for 24½ years, 17 or 18 years of which he has spent as a Tower Relief Officer. Officer McCord testified that on August 22, 2013 he was in the rear tower which overlooks E-Yard watching the soccer game in which the claimant was participating. He observed the claimant attempt to hit the ball with his foot but, instead, his foot came in contact with the ground after which the claimant immediately fell and appeared to be injured. The witness testified that the yard is mowed each week and that although correction officers search the yard, sometimes visually and sometimes using metal detectors, he never observed correction officers digging holes in the field as part of their search process.
On cross-examination, Officer McCord testified that the rear tower in which he was located is approximately 40 feet high and located approximately 70 yards from the place where the witness observed the claimant fall to the ground. He stated that although correction officers sometimes use metal detectors in inspecting the E-Yard field, and sometimes probe the field if metal is detected, he has never seen correction officers digging in the E-Yard field.
Defendant also called Lieutenant John Lellek who testified that he was a Sergeant at Shawangunk Correctional Facility in August 2013. On August 22, 2013 the witness responded to a medical emergency call in the E-Yard. Arriving at the scene, the witness observed the claimant on the ground accompanied by a correction officer. Claimant was holding his leg and when asked what had occurred responded that he was attempting to kick the ball when he missed and his foot struck the ground. Lieutenant Lellek testified that he searched the area where the claimant was lying and did not observe any defects in the field surface. In a memorandum dated August 22, 2013 the witness related the facts of claimant's injury as reported to him by Correction Officer McCord stating "[w]hile going to kick the ball, Inmate Gaston missed the ball, kicked the ground and hurt his right leg. Inmate Gaston fell to the ground" (Exhibit A).
On cross-examination, the witness testified that correction officers sometimes search the E-Yard field using metal detectors but he has never observed officers digging holes in the field. He again related his testimony that the claimant informed him he had been injured when his foot came in contact with the ground as he attempted to strike a soccer ball. He also confirmed that the factual information contained in Exhibit A was provided to him by Correction Officer McCord who observed the event from his position in the rear tower.
On redirect examination, Lieutenant Lellek testified that the soccer game was restarted after the claimant was removed from the field and transported to the infirmary.
Defendant called Perry Nenni who testified that he has been a Correction Officer at Shawangunk for 26 years, and the fire and safety officer at Shawangunk for the last nine years. He testified that the E-Yard is regularly inspected for contraband, sometimes using metal detectors, although he has never observed the officers using tools to dig in the yard.
Officer Nenni testified that he inspected the E-Yard soccer field in response to the grievance filed by the claimant. He testified that he walked the entire field looking for the holes described by claimant in his grievance but that no defects in the field surface were observed.
In an Inmate Grievance Program Investigation Report, Maintenance Supervisor R. Clark states that he and the witness surveyed the playing field in E-Yard and "did not find any holes, divots, etc." (Exhibit B).
"To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" (Solomon v City of New York, 66 NY2d 1026, 1027 [1985]). The State, like any other landowner, has a duty to maintain its property in a reasonably safe condition (Preston v State of New York, 59 NY2d 997, 998 [1983]). Here, however, claimant failed to establish by a preponderance of the credible evidence that the defendant breached that duty, or that any such breach was a proximate cause of his injuries. While it is undisputed that claimant sustained an injury when his foot came in contact with the ground, Lieutenant Lellek testified that he inspected the area of the incident immediately after it occurred and did not observe any defects in the surface of the playing field. Nor did Officer Nenni observe any defects in the playing field upon his inspection of the area in response to claimant's grievance. Moreover, the information claimant provided to Lieutenant Lellek after the accident - that he was injured when his foot came in contact with the ground as he attempted to kick the ball - is consistent with the testimony of Correction Officer McCord. As a result, the Court concludes that claimant's injuries occurred as the result of his own conduct rather than any negligence on the part of the State in maintaining the playing field. While it is true that primary assumption of risk does not apply to risks created by a defendant's negligence which are unique and create dangers beyond those that inhere in a sport (see Morgan v State of New York, 90 NY2d 471, 485 [1997]; Dann v Family Sports Complex, Inc., 123 AD3d 1177 [3d Dept 2014]; McGrath v Shenendehowa Cent. School Dist., 76 AD3d 755 [3d Dept 2010]; Zelie v Town of Van Buren, 79 AD3d 1801 [4th Dept 2010]; Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605 [3d Dept 2003]), the Court is unpersuaded that such a concealed risk existed or that, if it did, it was a proximate cause of claimant's injury. As a result, the claim is dismissed.
Let judgment be entered accordingly.
August 10, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims