Black v State of New York

[*1] Black v State of New York 2005 NY Slip Op 51287(U) Decided on June 15, 2005 Ct Cl Hard, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 15, 2005
Ct Cl

WARREN BLACK, Claimant(s),

against

THE STATE OF NEW YORK, Defendant(s)



100583



Claimant's attorney:Warren Black, Pro Se

Defendant's attorney:Hon. Eliot Spitzer, NYS Attorney General

By: Kevan J. Acton, Assistant Attorney General, Of Counsel

Third-party defendant's attorney:

Judith A. Hard, J.

Text of the decision:

In June 1999, claimant commenced this claim alleging negligence and medical malpractice. Specifically, he alleges that while playing basketball at Hudson Correctional Facility [hereinafter Hudson] on August 1, 1997, he fell into a depression surrounding the access cover to [*2]a water supply valve along the edge of the basketball court [Verified Claim]. Claimant further alleges that he sustained a broken right foot as a result of this incident, and defendant failed to provide diligent medical care for his injury [id.]. After a one-day trial, the Court dismisses the claim.

Only two witnesses testified at trial, claimant and the nurse who attended to his foot on the date of his injury. Claimant testified that while running during an intra-prison basketball game, his foot got caught in a hole approximately three inches wide and two inches deep [12-13].[FN1] Claimant's testimony regarding what happened next is somewhat different from the allegations contained in his claim. Specifically, although his claim indicates that he was not examined by a doctor until August 4, 1997, three days after his injury [Verified Claim], he testified that he went to the infirmary the night he was injured and was seen by the doctor and nurse on duty. The nurse wrapped the injured foot in an ace bandage and gave him crutches [6], and claimant believes the doctor put in a request for X-rays [24]. The next day, claimant returned to the infirmary due to pain and swelling [6]. He testified he received Tylenol and was told he would be put in for X-rays. Ultimately, X-rays were taken on August 5, 1997 [28] and, after two more doctor visits, he received a cast on August 21, 1997 [Verified Claim].

On cross-examination, claimant stated that he had played basketball for approximately 23 years and was aware that playing basketball could result in injury [18]. Indeed, claimant testified that he had previously broken a bone while playing basketball [19].[FN2] Claimant also admitted that he had played basketball at Hudson since arriving in 1996, and previously played on this particular basketball court.

In addition to his testimony, claimant offered several exhibits into evidence, including a Report of Injury he completed when he went to the infirmary, and a Report of Injury from nine other inmates injured on the same basketball court prior to the date of his injury. Claimant failed, however, to offer any evidence, other than his own testimony, regarding his injury. At the close of claimant's proof, defendant offered the testimony of the nurse who attended to claimant's injuries. She testified that claimant completed the Report of Injury and signed his name. She also testified that she advised claimant to use the crutches and not to put any weight on his injured foot.

With respect to his negligence claim, claimant argues that defendant breached its duty to him, and that it had notice of the injury-producing defect due to the injuries suffered by numerous other inmates. Defendant counters that the alleged defect did not cause claimant's injuries and, even if it did, claimant assumed the risk of such an injury by participating in the basketball game.

It is well settled that "landowners * * * owe a duty to exercise reasonable care in maintaining their property in a reasonably safe condition" (Soich v Farone, 307 AD2d 658, 659 [3d Dept 2003]). To be liable, however, a landowner must have actual or constructive knowledge of the defective condition (see e.g. Morrow v Ashley, 3 AD3d 619, 620 [3d Dept 2004]). To [*3]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 landowner to discover and remedy it" (id., quoting, Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

Here, although the Court credits claimant's testimony that the basketball court contained a hole near the access cover along the edge of the basketball court, there is no evidence that defendant had either actual or constructive notice of this condition. Although claimant attempts to establish actual notice by submitting reports of injuries from nine other inmates on the same basketball court, none of the injuries sustained by these inmates were caused by this condition. Further, with respect to constructive notice, there is no evidence that the condition was present for a sufficient time so that it should have been discovered and remedied.

Next, even if the Court was to conclude that defendant had notice of the condition, the Court does not credit claimant's testimony that this condition caused claimant's injury. At trial, although claimant testified that he broke his foot when his foot fell into the hole [12-13], he also testified that he did not know what happened until another inmate told him [5]. Even if the Court considered this statement, which it does not,[FN3] claimant's Report of Injury does not support this version. In this report, made almost immediately after his injury, claimant states that "he was chasing the ball, stopped short and heard a pop in foot area" [Exhibit 1]. Thus, when the incident was the freshest in his mind, claimant did not refer to the hole on the basketball court. In any event, even if the Court determined that claimant's injury was caused by the hole, claimant would still be precluded from recovery.

A landowner is relieved from liability "for inherent risks of engaging in a sport...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]). Thus, "[a] person who elects to engage in a sport or recreational activity 'consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation' " (Huneau v Maple Ski Ridge, Inc., 17 AD3d 848, __ , 794 NYS2d 460, 461 [3d Dept 2005], quoting Morgan v State of New York, 90 NY2d at 484.

Here, claimant, by his own account, an experienced basketball player, admitted that he was aware he could be injured while playing the game and, indeed, was previously injured while playing basketball. Further, the Court determines that a depression around a water valve along the edge of an outdoor basketball court is not the type of defect that is a ' "dangerous condition over and above the usual dangers inherent in the activity' " (Huneau v Maple Ski Ridge, Inc, 17 AD3d 848, __ , 794 NYS2d 460, 461 [3d Dept 2005], quoting Rios v Town of Colonie, 256 AD2d 900, 900 [3d Dept 1998]). As such, claimant has not established by a preponderance of the credible evidence (see Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550 [1998]) that defendant breached its duty to him (see Morgan, 90 NY2d at 485).

With respect to claimant's second cause of action, the Court is likewise unpersuaded. To establish a medical malpractice claim, a party "must prove, by a preponderance of the evidence, a deviation or departure from accepted medical practice and that such departure was a substantial [*4]factor in producing [claimant's] injuries" (Valentine v Lopez, 283 AD2d 739, 741 [3d Dept 2001]). Further, "expert medical opinion is required to demonstrate merit as to matters not within the ordinary experience and knowledge of laypersons" (Quigley v Jabbur, 124 AD2d 398, 399 [3d Dept 1986]). Here, claimant offers no evidence, expert or otherwise, that his treatment deviated from acceptable medical practice. Additionally, while claimant testified that he did not receive X-rays until five days after the incident or that he did not receive a cast for 20 days after his injury, he offers no expert opinion that this exacerbated his injury. Accordingly, claimant has also failed to carry his burden of proof on this cause of action.

Inasmuch as claimant has failed to demonstrate by a preponderance of the credible evidence that defendant was negligent or committed medical malpractice, his claim is dismissed. All motions not heretofore ruled upon are denied.

Let judgment be entered accordingly.

Appendices: Footnotes

Footnote 1:Unless otherwise indicated, all page references are to the trial transcript filed on March 29, 2005.

Footnote 2:Claimant testified that he could not recall whether he broke his foot or ankle [19].

Footnote 3:During the trial, defendant objected to this statement and the Court reserved. The Court now sustains the objection as the statement is offered for its truth and is, therefore, inadmissible hearsay (Hasbrouck v Caedo, 296 AD2d 740 [3d Dept 2002]).