Opinion
# 2016-015-621 Claim No. 121373
12-12-2016
TERRANCE MONK v. THE STATE OF NEW YORK
The Rosenthal Law Firm By: Douglas Rosenthal, Esquire Honorable Eric T. Schneiderman, Attorney General By: Brett R. Eby, Esquire Assistant Attorney General
Synopsis
Following remote video trial, pro se inmate's claim was dismissed on the ground he assumed the commonly appreciated risk of contact with another player while engaged in the recreational sport of flag football.
Case information
| UID: | 2016-015-621 |
| Claimant(s): | TERRANCE MONK |
| Claimant short name: | MONK |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121373 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | The Rosenthal Law Firm By: Douglas Rosenthal, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Brett R. Eby, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 12, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim filed on May 31, 2012 alleges the State was negligent in "failing to provide adequate supervision, adequate protection equipment, and failure to provide authoritative direction in regards to the flag football competition at Shawangunk C.F. E-Yard on or about Sunday, September 26, 2009, so as to cause serious injury to claimant" (Claim, ¶ 2). A trial of this matter was held on August 18, 2016 and the decision herein relates solely to the issue of liability.
Claimant testified that in September 2009 he participated in what he understood at the time to be a flag football game at Shawangunk Correctional Facility (Shawangunk). He testified that he informed a recreation specialist at Shawangunk that he desired to participate in the facility's flag football league. Claimant was assigned a team and, prior to the game in question, was provided a mouthpiece. Flags were also distributed to the participants, although the claimant testified that there was an inadequate number of flags for all of the players involved. Approximately one hour after the game had begun, the claimant collided with another inmate sustaining injuries to his mouth, teeth and nose. Claimant and the individual with whom he collided were both taken to the Albany Medical Center Emergency Room and then returned to Shawangunk where the claimant was placed on concussion watch for approximately one week.
On cross-examination the claimant acknowledged that he had participated in organized football while in high school and at the State University of New York at Buffalo for one summer prior to being dismissed from the University. After arriving at Shawangunk in 2007 he participated in both the facility's basketball and soccer leagues, but declined attempts by other inmates to recruit him to play flag football until 2009 when he voluntarily signed up for the recreational flag football league. This despite his awareness of complaints by other inmates concerning league rules.
According to the claimant, not all participants in the game in which he was injured were provided flags. Rather, only key offensive players were equipped with flags. Following a change in possession, the flags would be exchanged. Claimant was able to observe that each side had eleven men on the field and testified again that he participated in the game for approximately one hour prior to his injury.
The defendant moved to dismiss the claim at the conclusion of claimant's testimony, asserting that the doctrine of primary assumption of risk relieves the defendant of liability where a claimant incurs injury which arises from risks inherent in a sport and the participant is aware of the risks of participation and voluntarily assumes those risks.
The law is settled that "assumption of risk is not an absolute defense but a measure of the defendant's duty of care" (Turcotte v Fell, 68 NY2d 432, 439 [1986]; see also Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395 [2010]). Viewed in this light, the operator of a sporting venue will 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 v State of New York, 90 NY2d 471, 484 [1997]; Turcotte v Fell, 68 NY2d at 439 [no liability where risks were "fully comprehended or perfectly obvious"]). Thus, risks that are "commonly encountered or inherent in a sport. . . are risks for which [the] participants are legally deemed to have accepted personal responsibility " (Bukowski v Clarkson Univ., 19 NY3d 353, 356 [2012] [internal quotation marks and citation omitted]). As Judge Cardozo articulated the doctrine long ago: "One who takes part in . . . a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball . . ." (Murphy v Steeplechase Amusement Co., 250 NY 479, 482 [1929]). The Court of Appeals has made clear that "in assessing whether a defendant has violated a duty of care . . . the applicable standard should include whether the conditions caused by the defendants' negligence are 'unique and created a dangerous condition over and above the usual dangers that are inherent in the sport' " (Morgan v State of New York, 90 NY2d at 485, quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]). It is also settled, however, that the primary assumption of risk doctrine encompasses risks which not only inhere in the sport generally, but involve less than optimal conditions (Bukowski v Clarkson Univ., 19 NY3d at 356; Sykes v County of Erie, 94 NY2d 912, 913 [2000]; Martin v State of New York, 64 AD3d 62, 64 [3d Dept 2009], lv denied 13 NY3d 706 [2009]). A sport participant's failure to subjectively appreciate the particular injury-producing risk is not dispositive since "[i]t is not necessary . . . that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results" (Maddox v City of New York, 66 NY2d at 278; Martin v State of New York, 64 AD3d at 66).
Here, claimant's proof established no more than the fact that he was injured as the result of his voluntary participation in the sport of flag football despite his knowledge that doing so could bring him into contact with another player. Claimant was an experienced football player, having participated in the sport in both high school and college, and no proof was offered of any concealed or unique risks over and above those which inhere in the sport of flag football generally. While claimant presented proof that the "Superintendent stated next year the Recreation staff will develop a toned down version [of flag football] consistent with flag football leagues in the community" (claimant's Exhibit 2), claimant does not assert that defendant violated any particular safety protocol or standard (see Bukowski, 19 NY3d at 357; Bendig v Bethpage Union Free School Dist., 74 AD3d 1263, 1264-1265 [2d Dept 2010]; cf. Zmitrowitz v Roman Catholic Diocese of Syracuse, 274 AD2d 613 [3d Dept 2000] [failure to provide catcher's mask to 9th grader was a breach of sound coaching practice]). The fact that safer conditions could have been provided is irrelevant where, as here, the injury-producing event was a reasonably foreseeable consequence of claimant's participation in the sport (Martin, 64 AD3d at 64). The "enormous social value" underlying application of the assumption of risk doctrine is no less applicable in the prison setting where officials should be able to foster participation in sports "without fear of liability for inability to replicate the ideal conditions" (Bukowski, 19 NY3d at 358). Applying that doctrine here, defendant's motion to dismiss the claim on the ground claimant assumed the commonly appreciated risk of contact with another player while engaged in the recreational sport of flag football must be granted.
Accordingly, defendant's motion to dismiss the claim is granted and the claim is dismissed.
Let judgment be entered accordingly.
December 12, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims