Heatley v State of New York

[*1] Heatley v State of New York 2010 NY Slip Op 52248(U) [30 Misc 3d 1202(A)] Decided on November 22, 2010 Ct Cl Ruderman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 22, 2010
Ct Cl

Janelle Heatley, Claimant(s)

against

The State of New York, Defendant(s)



112226



Claimant's attorney:

JOHN H. TESCHNER, ESQ.

Defendant's attorney:

HON. ANDREW M. CUOMO

Attorney General for the State of New York

By: John Healey, Assistant Attorney General

Terry J. Ruderman, J.

Claimant seeks damages for injuries she sustained while she was a student at the State University of New York at Purchase (Purchase). The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Claimant was enrolled in the Acting Conservatory at Purchase, a competitive program which accepted only 21 of approximately 1200 applicants annually. On January 26, 2006, claimant was injured while participating in an exercise during the First-Year Acting Course. Claimant contends that the professor, Lisa Benavides-Nelson, directed the college students to run with their eyes closed [*2]and that claimant, who was 18 years old, was injured and her eyeglasses were broken when she collided with another student (T:79, 126).[FN1] Defendant contends that claimant assumed the risk by her participation.

The professor, Lisa Benavides-Nelson, testified that she graduated from the Juilliard School in 1991 and was employed as a lecturer at Purchase in 2005 through 2006. Prior to 2005, Benavides-Nelson taught second-year acting at Purchase for four years. She also taught at Lehman College, New York University, the New York Public Theater, the 52nd Street Project, and the Stella Adler Conservatory.

The professor explained that the acting curriculum includes trust exercises which are a developmental tool used to build body awareness and enable students to connect with partners on stage. Benavides-Nelson had been taught trust exercises at Juilliard and she stated that most acting classes incorporate them into the curriculum. A classic example of this type of exercise is having one student fall backwards into the arms of another. In the First Year Acting Course curriculum, Benavides-Nelson began introducing trust exercises during the fall 2005 classes.

On January 26, 2006, Benavides-Nelson led her students in what she termed the "Yes" exercise, an evolving trust exercise (T:13-14). She explained that 12 students formed a circle,15 feet in diameter, spacing themselves at arms length from one another. The exercise focused on sending and receiving permission and progressed through three levels.

At the first level, one student (Student A) makes eye contact with another student (Student B) in the circle. Student B acknowledges the contact from Student A by verbally saying "yes" (T:14). This gives Student A permission to walk across the circle and stand next to Student B. Student B continues the exercise by making contact with Student C and the process continues with a flow of acceptances and students crossing the circle. Level one proceeds for approximately 20 minutes as the fluidity of movement increases and a rhythm builds (T:22-23). The professor explained that the students control the movements throughout all levels of the exercise and that everyone should hear the spoken "yes" when permission to proceed is communicated (T:45, 47). The only person with closed eyes should be the student in motion (id.).

The pace increases at the second level of this exercise. After acceptance has been communicated, the students are encouraged to walk at a quicker pace and to close their eyes as they cross the circle (T:29). The students are instructed that, when they feel tension or anxiety, they should stop and open their eyes and assess their position in the circle before continuing to the other side (T:29-30).

At the third level, the pace again increases. Upon receipt of permission to cross the circle, the students closed their eyes and were encouraged to move faster by either "trying to run" or "walk quickly across the circle" (T:30). The professor described level three as having a "quicker pace * * * with more physical freedom" to move across the circle (T:48). The students were again instructed at level three to stop when "tension creeps in" and to open their eyes to see where they stopped (T:33).

Benavides-Nelson testified that she advised the students that this was just a teaching exercise and it was not a test (T:47). They were told to open their eyes if they felt uncomfortable doing it with their eyes closed. She did not recall claimant or anyone else protest participation in the activity [*3](id.). She did not instruct the students to run directly at each other with their eyes closed (T:48).

On January 26, 2006, during level three of the exercise, the professor joined the group in the circle. As she was looking to her right, she heard a sound to her left. She turned and saw claimant and another student on the floor. She did not see them collide.

Prior to January 26, 2006, Benavides-Nelson taught this exercise on 10 to 15 occasions without incident or any resulting injuries. At trial, she recalled claimant as being young and immature compared to the other students (T:42).

Claimant testified that prior to attending the Acting Conservatory at Purchase, she had participated in trust exercises at the Harlem School for the Arts. Claimant's testimony differed from Benavides-Nelson's description of the exercise. According to claimant, the students were in a circle of approximately 30 feet in diameter, and not 15 feet as testified to by the professor. Claimant stated that at level one, the students crossed the circle at the same time and exchanged places. Claimant also stated that at level three, the students were supposed to keep their eyes closed while awaiting their turn to exchange places. Despite this instruction, claimant had her eyes open right before she ran and she noted that several other students did as well.

After hearing the instructions for the exercise, claimant did not say anything, but maintained at trial that she "held back in my body a little bit" (T:92). She heard the instructor say, "just let it go" (T:92-93), which claimant understood to mean, "Don't hesitate, go full force" (T:93). Claimant also testified that the instructor told the students that they were to run at "full force" when they felt the energy that it was their time to go (T:122, 127). Claimant conceded, however, that she did not mention this at her deposition (T:127-28).

Analysis

Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, this Court finds that claimant failed to establish that defendant should be held liable for claimant's injuries resulting from her voluntary participation in the trust exercise (see Marucheau v Suffolk County Community Coll., 23 AD3d 445 [plaintiff injured in Stage Combat acting class activity voluntary participated and assumed risks associated with activity; inherent compulsion inapplicable to facts]; cf. Calouri v County of Suffolk, 43 AD3d 456 [issue of fact as to whether plaintiff acted voluntarily in attempting activity suggested by gym instructor]). Additionally, the Court finds that claimant cannot avail herself of the theory of inherent compulsion as a basis for liability (see Benitez v New York City Bd. of Educ., 73 NY2d 650, 658). To sustain a finding of liability on the theory of inherent compulsion generally requires that two factors are present: 1) a direction by a superior to do the act and 2) an economic compulsion or other circumstances which equally compels compliance with the direction.

Notably, claimant's testimony was riddled with inconsistencies which made her appear less than forthright and detracted from her credibility. For example, at trial, claimant testified that, on the first occasion of her participation in the level three exercise, she ran full force and collided with another student; however at her examination before trial, she testified that it was after several turns that she collided with the other student (T:130-31). At trial, she maintained that her deposition testimony that she was injured "the third time" she ran with full force was incorrect (T:130-32). It is noted that the professor also testified that she did not instruct the students to run directly at each other with their eyes closed (T:48). Further, the professor reported that she taught this exercise on 10 to 15 occasions without incident or any resulting injuries. [*4]

It is noted that the professor's testimony that claimant appeared young and immature compared to the other students was considered by the Court in assessing whether claimant fully understood the risks associated with her participation in the exercise and yet freely participated in this activity (see Morgan v State of New York, 90 NY2d 471, 488 [reasonable person of participatory age or experience must be expected to be aware of risks or losing balance in a martial arts training class]). At her examination before trial, claimant testified that every acting class she had taken incorporated trust exercises and involved a certain amount of risk. At trial, however, when asked about her previous classes and the trust exercises, initially she maintained that she did not recall, she then adhered to her deposition testimony (T:179-80).

Significantly, claimant testified that, prior to her participation in this trust exercise, she had performed trust exercises at the Harlem School for the Arts. Claimant further conceded at trial that she was aware of the specific risks associated with her participation in this trust exercise that could result in injuries and the possibility of running into another student (T:175). The professor emphasized that the students were instructed that this exercise was not a test and was just a teaching exercise (T:47). Claimant acknowledged that she could have refused to participate in this exercise and that her refusal would not have resulted in her failing the course (T:175, 181).

Thus, the Court finds that claimant was admittedly aware of the risks associated with running toward another student with her eyes closed and engaged in the exercise without any apparent reservations. Further, the credible evidence failed to establish that claimant felt compelled to comply with the professor's direction to perform the trust exercise despite claimant's concerns of risk factors or that someone of claimant's age and experience would have felt compelled despite concerns of risk factors (Benitez v New York City Bd. of Educ., 73 NY2d 650, supra [no evidence that plaintiff had no choice but to follow the coach's direction despite concerns of risk factors]).

In sum, the Court finds that claimant failed to establish her burden of proof by a preponderance of the credible evidence.

Accordingly, Claim No.112226 is hereby dismissed.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 112226.

Appendices: Footnotes

Footnote 1: References to the trial transcript are preceded by the letter "T."