Opinion
# 2014-039-399 Claim No. 112054
02-10-2014
MICHAEL HILLER v. STATE OF NEW YORK
Claimant's attorney: Michael Hiller, pro se Defendant's attorney: Hon. Eric T. Schneiderman Attorney General of the State of New York By: Thomas Trace Senior Attorney
Synopsis Following a trial, the Court finds that claimant failed to prove his negligence claim against defendant by a preponderance of the evidence. By voluntarily participating in a pick-up game of basketball, claimant assumed the risk of colliding with partially-extended bleachers located approximately 3 to 5 feet behind the basket.
Case information
UID: 2014-039-399 Claimant(s): MICHAEL HILLER Claimant short name: HILLER Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 112054 Motion number(s): Cross-motion number(s): Judge: James H. Ferreira Claimant's attorney: Michael Hiller, pro se Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Thomas Trace Senior Attorney Third-party defendant's attorney: Signature date: February 10, 2014 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case)
Decision
Claimant Michael Hiller, an inmate proceeding pro se, filed this claim with the Chief Clerk of the Court of Claims on March 7, 2006. In it, claimant seeks damages arising from an injury he allegedly suffered on June 16, 2005 while playing basketball in the indoor gymnasium at Oneida Correctional Facility (hereinafter CF) in Rome, New York. Claimant specifically alleges that, while playing basketball, he
"encountered a wet area on the floor in the vicinity of the bleachers causing him to slide into the lower section of the bleachers that extended out onto the basket[]ball [c]ourt. Upon impact with the bleachers, the lower seat which was not bolted, shifted, exposing an unprotected sharp metal edge which impaled [c]laimant on his lower left leg" (Claim ¶ 4).
Claimant alleges that defendant State of New York was negligent in failing to "exercise ordinary and reasonable care to protect [c]laimant . . . from foreseeable injury by leaving the bleachers extended out onto the [b]asket[]ball court" (id.).
A trial on this claim was conducted on December 3, 2013 via videoconference technology. Claimant testified on his own behalf, and defendant called one witness, a correction officer with the Department of Corrections and Community Supervision (hereinafter DOCCS), to testify. Defendant offered documentary evidence, which was received into evidence without objection. The parties also submitted post-trial letter briefs to the Court.
At trial, claimant testified that his accident occurred around 2:00 P.M. on June 16, 2005 while he was playing a pick-up game of basketball in the gymnasium at the Oneida CF. Someone shot the ball, and it bounced off the rim. As claimant was chasing the ball, he slipped on the floor and "ran into the bleachers." Claimant testified that, at the time of his accident, half of the bleachers were "pulled out, and half [were] pulled in." His leg went inside the portion of the bleachers that were pulled out, causing a "gash" on his leg eight inches long and four inches wide. Claimant estimated that the exposed part of the bleachers that he struck was about four to five feet behind, and to the right of, the basket/backboard, and about four to five feet from the "out of bounds line" that marked the perimeter of the court. Claimant testified that, after the accident, he was taken to the hospital, where he received 20 stitches and 20 staples. The Court observed a pale but visible scar in the shape of an upside down "J" on the inside of claimant's lower left leg. Claimant estimated that his scar was approximately 6 inches long. He affirmed that he had played basketball about 10 times in the gymnasium before his accident.
Unless otherwise indicated, all quotations are from the electronic audio recording of the trial.
Defendant's witness, Sergeant David Giannini, testified that he has worked for DOCCS for 20 years. On the date of the accident, he worked at Oneida CF. Giannini testified that he wrote an unusual incident report and a memorandum to his area sergeant concerning the accident (see Defendant's Exhibit A, at 1-2). The accident occurred around 2:00 P.M. during general recreation time. Giannini affirmed that, during general recreation time, inmates are permitted to go to the gym and play basketball if they choose to. With respect to the layout of the gymnasium, Giannini testified that it can be used lengthwise for one full-court basketball game, or it can be used width-wise for two half-court basketball games using side baskets. The gym has bleachers located on the left wall. He explained that claimant was playing a half-court game on the day of his accident, and the bleachers were underneath the basket on the court where claimant was playing. He testified that he had no knowledge of any prior accidents regarding bleachers in the gymnasium, and had no knowledge of a wet area on or off the playing surface that day.
Giannini was shown a series of eight color photographs and affirmed that the photographs fairly and accurately depicted the bleachers as they appeared on the date of the accident (see Defendant's Exhibit A, at 10-12). These photographs are labeled "Bleecher [sic], Gym" and are dated June 16, 2005 at 2:30 P.M. (see Defendant's Exhibit A, at 10-12). The photographs show a set of wooden bleachers and what appears to be blood on the gymnasium floor next to the bleachers. One portion of the bleachers is extended, and the edges of each bleacher step are exposed. The exposed edges appear to be made of metal. A ruler in one of the photographs shows that the extended portion measured more than one foot. Giannini estimated that the extended section of the bleachers was about three to five feet from the playing surface of the basketball court.
It is well settled that, in order to establish a prima facie case of negligence, " 'a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff' " (Comack v VBK Realty Assoc., Ltd., 48 AD3d 611, 612 [2008], quoting Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565, 566 [2005]). The State, as a landowner, has a duty to maintain its facilities " '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' " (Miller v State of New York, 62 NY2d 506, 513 [1984], quoting Preston v State of New York, 59 NY2d 997, 998 [1983] [internal quotation marks omitted]; see Covington v State of New York, 54 AD3d 1137, 1137-1138 [3d Dept 2008]). This duty extends to the State's correctional facilities (see Braithwaite v State of New York, UID No. 2009-040-050 [Ct Cl, McCarthy, J., June 26, 2009]). The State, however, "is not an insurer against every injury that might occur on its property" (Covington v State of New York, 54 AD3d at 1137-1138), and "[n]egligence cannot be presumed from the mere happening of an accident" (Mochen v State of New York, 57 AD2d 719, 720 [4th Dept 1977]; see Melendez v State of New York, 283 AD2d 729, 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]).
Defendant argues that the doctrine of assumption of risk bars claimant's recovery in this case. Although assumption of risk is no longer an absolute defense to a negligence action (see CPLR 1411), the doctrine of primary assumption of risk, if applicable, serves to relieve a defendant of its duty of reasonable care and is a complete bar to recovery (see Morgan v State of New York, 90 NY2d 471, 485 [1997]; Turcotte v Fell, 68 NY2d 432, 437-439 [1986]; Buchanan v Dombrowski, 83 AD3d 1497, 1499 [4th Dept 2011]). In other words, when the doctrine of primary assumption of risk applies, " 'the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence' " (Cotty v Town of Southampton, 64 AD3d 251, 254 [2d Dept 2009], quoting Turcotte v Fell, 68 NY2d at 438; see Shay v Contento, 92 AD3d 994, 995 [3d Dept 2012]).
Defendant raised the defense of assumption of risk in its verified answer. It also raised the issue at trial and in its post-trial letter brief to the Court.
"Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity" (Cotty v Town of Southampton, 64 AD3d at 253-254; see Toro v New York Racing Assn, Inc., 95 AD3d 999, 1000 [2d Dept 2012]). "Risks inherent in a sport generally include 'those . . . associated with the construction of the playing surface and any open and obvious condition on it" (Simmons v Saugerties Cent. School Dist., 82 AD3d 1407, 1408 [3d Dept 2011], quoting Lincoln v Canastota Cent. School Dist., 53 AD3d 851, 852 [3d Dept 2008]), as well as "those associated with any open and obvious defect or obstacle in the place where the sport is played" (Ciocchi v Mercy Coll., 289 AD2d 362, 363 [2d Dept 2001]; accord Morant v State of New York, UID No. 2002-028-510 [Ct Cl, Sise, J., Dec. 27, 2002]). However, "participants will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks" (Morgan v State of New York, 90 NY2d at 485; see Pantalone v Talcott, 52 AD3d 1148, 1149 [3d Dept 2008]). Even so, "where the risks of the activity are fully comprehended or perfectly obvious, the defendant has performed its duty by making conditions as safe as they appear to be" (Toro v New York Racing Assn., Inc., 95 AD3d at 1001; see Morgan v State of New York, 90 NY2d at 484; Turcotte v Fell, 68 NY2d at 439). "The assessment of awareness must take place against a particular plaintiff's skill and experience" (Toro v New York Racing Assn, Inc., 95 AD3d at 1000-1001).
Upon application of these principles to the facts presented here, and after weighing the evidence proffered at trial, including the exhibits received into evidence and considering the testimony and demeanor of the witnesses, the Court finds that claimant has failed to establish, by a preponderance of the credible evidence, his claim of negligence against defendant.
As a preliminary matter, the Court notes that claimant alleged in his claim that he "encountered a wet area on the floor" that caused him to slide into the bleachers (Claim ¶ 4), but presented no evidence or argument at trial with respect to this allegation. At trial, claimant proceeded under the theory, as alleged in the claim, that defendant was negligent with respect to the condition of the bleachers. Thus, the Court will limit its analysis to that issue, and will not consider the issue of whether defendant was negligent with respect to any alleged wet condition on the gymnasium floor.
The evidence before the Court unequivocally establishes that claimant was injured while he was attempting to retrieve a ball that had bounced off the rim of the basketball hoop during a pick-up basketball game. In so doing, claimant collided with the exposed portion of bleachers that were located between three and five feet behind the basketball hoop. The Court finds that the risk of colliding with out-of-bound bleachers located behind the basket is a commonly appreciated risk inherent in participation in a game of basketball played on an indoor court (see e.g. Ribaudo v La Salle Inst., 45 AD3d 556, 557 [2d Dept 2007], lv denied 10 NY3d 717 [2008] [risk of colliding with the wall in an indoor gymnasium was a risk inherent in the sport of basketball]; Trevett v City of Little Falls, 24 AD3d 1197, 1198 [4th Dept 2005], affd 6 NY3d 884 [2006] [risk of colliding with a pole supporting the backboard was a "perfectly obvious type of harm inherent in playing basketball on that court"]; Marturano v State of New York, UID No. 2003-009-113 [Ct Cl, Midey, J., June 25, 2003] [the risk of running into a wall during a basketball game was a risk inherent to the game of basketball]; Curriere v State of New York, UID No. 2004-013-049 [Ct Cl, Patti, J., Sept. 29, 2004] ["the risk of running out-of-bounds after blocking a shot and colliding with [metal] stairs [located more than 7½ feet from the out of bounds line behind the basket] was a risk inherent in the game of basketball"]; Morant v State of New York, UID No. 2002-028-510 [Ct Cl, Sise, J., Dec. 27, 2002][player assumed the risk of colliding with a radiator located in close proximity to the basketball court]; compare Robinson v New York City Dept. of Educ., 94 AD3d 428, 429 [1st Dept 2012][player did not assume the risk of catching a finger on a emergency light fixture on the basketball backboard]).
The Court further concludes that the evidence before it - in particular the photographs of the bleachers - demonstrates that the condition of the bleachers alleged to have caused claimant's injury - the exposed edge of the partially-pulled-out bleachers - was an open and obvious condition. Claimant argues in his post-trial letter brief that he was not aware of the specific dangerous condition that caused his injury; however, "it is not necessary to the application of the doctrine that the injured plaintiff may have foreseen the exact manner in which the injury occurred 'so long as he or she is aware of the potential for injury of the mechanism from which the injury results' " (Joseph v New York Racing Assn., 28 AD3d 105, 108 [2d Dept 2006], quoting Maddox v City of New York, 66 NY2d 270, 278 [1985]). Here, claimant acknowledged that he had played basketball in the Oneida CF gymnasium approximately 10 times prior to his accident. Thus, claimant knew or should have known that falling and/or sliding into the bleachers was a reasonably foreseeable consequence of playing basketball there (see Martin v State of New York, 64 AD3d 62, 64-65 [3d Dept 2009]; Morant v State of New York, UID No. 2002-028-510 [Ct Cl, Sise, J., Dec. 27, 2002]). The Court does not find that the fact that the bleachers were partially pulled out "unreasonably increased [the] risks" to claimant (Morgan v State of New York, 90 NY2d at 485; compare Ferreira v State of New York, UID No. 2010-015-502 [Ct Cl, Collins, J., Jan. 21, 2010] [a 12-inch deep hole in the outfield unreasonably increased the usual dangers associated with participating in a baseball game]).
Therefore, based upon the foregoing, the Court concludes that claimant consented to the risk of colliding with the extended portion of the bleachers upon voluntarily participating in the basketball game, such that defendant is relieved of its legal duty to claimant with respect to the basketball game. As such, it is ordered that Claim No. 112054 is dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied. The Clerk of the Court is directed to enter judgment accordingly.
February 10, 2014
Albany, New York
James H. Ferreira
Judge of the Court of Claims