FRANCIS T. COLLINS

Synopsis

Pro se inmate's claim seeking damages for injuries sustained in a flag football game was dismissed based on the doctrine of primary assumption of risk. Neither the wet playing field nor the risk of being "clipped" from behind by another player were concealed or unique risks above those which inhere in the sport generally.

Case information

Decision

The claim herein, seeking damages for an injury incurred during the course of a flag football game at Mid-State Correctional Facility (Mid-State), was transferred to this Court's Individual Assignment Calendar by Order dated December 13, 2019. Trial was held on November 24, 2020 and this decision relates solely to the question of liability.

At trial the claimant testified that on October 14, 2013 he voluntarily participated in a flag football game at Mid-State Correctional Facility. He testified it had been "raining that day," that rainwater had accumulated on the playing field surface, and that the field was not in playable condition as a result. According to the claimant, it was difficult to determine how much water had been retained on the field. The entire playing area was not excessively wet, rather certain areas were relatively dry while other areas had retained a significant amount of water. At some point during the flag football game, the claimant, who was wearing cleats, injured his ankle in an area of the field which he contended at trial was excessively wet.

Following his injury the claimant went to the guard gate post at the Mid-State recreation field and requested that he be transported to the infirmary so he could receive medical care. He testified that his ankle bone was "poking out" of his skin and he was in extreme pain. According to the claimant, the correction officers manning the guard gate first laughed at him and then issued a direct order that he walk to the infirmary instead. Two inmates assisted the claimant in walking from the guard gate post to the infirmary, a distance the claimant estimated at "almost a mile." Once at the infirmary the claimant was examined, given crutches, and was then taken to St. Elizabeth Medical Center for further treatment. Claimant testified that his legs were shackled while he was at the infirmary, an act which he described as inhumane, and that the injury to his ankle has affected his ability to participate in normal life activities, such as basketball, in the way he had previously.

On cross-examination the claimant denied that he had been transported to the infirmary by emergency van as related in a memorandum prepared by Sergeant O'Neil (Exhibit A, p. 001). Claimant confirmed that he was an experienced football player, and that he was injured while attempting to secure the flag of an opposing player. Although it was difficult to determine which areas of the field were dry and which were excessively wet, claimant testified that he was injured in an area of the field which was so wet as to render it unplayable. He agreed that he stated he had been "clipped from behind" in a written statement made following his injury (Exhibit A, p. 004) but related his belief that his injury resulted from a combination of both the wet field and being clipped by another player. Claimant argued that the physical conditions on the date of his injury should have required closure of the fields consistent with the Mid-State Correctional Facility Comprehensive Recreation Program and Management of Equipment guidelines received as Exhibit 1.

At the conclusion of the claimant's testimony the defendant moved to dismiss the claim for failure to establish a prima facie case and upon claimant's assumption of the risk of injury. The Court reserved on the motion and the defendant called Jeff Keyte as its first witness. Mr. Keyte testified that he was a civilian recreation program leader at Mid-State on October 14, 2013. Mr. Keyte began his employment as a recreation program leader with the Department of Corrections and Community Supervision (DOCCS) in 2008 and had previously served as a recreation specialist for ten years in the U.S Air Force. Although the witness was unable to recall the specific incident involving the claimant, which occurred on October 14, 2013, he testified that he is on the playing field each day of the flag football season and that it is his duty to prepare and mark the fields and to ensure they are in playable condition. Mr. Keyte confirmed that he authored a memorandum following claimant's injury in which he states "[d]uring the football game, I witnessed R. Lopez, 12R3146, injure his right ankle while trying to make tackle. I reported it to the gate C.O." (Exhibit A, p. 002).

On cross-examination, the witness testified that games held on the recreation yard field at Mid-State are cancelled when there has been "significant" rain. According to Mr. Keyte, "it doesn't take a whole lot to cancel a game," and games will not be played if the field is wet. The witness testified also that he has in the past observed injured inmates being transported from the playing field to the infirmary by van. When asked why his memorandum regarding the event failed to include a reference to claimant having been transported to the infirmary, Mr. Keyte replied that that is not information which would be normal for him to include in a memorandum regarding an emergency event.

The defendant called Lieutenant Daniel O'Neil as a witness. Lieutenant O'Neil testified that he was an area sergeant at Mid-State on October 14, 2013 and that his area of responsibility included the recreation yard playing fields. He confirmed that he was on duty on that date and that he prepared the memorandum received as part of Exhibit A (p. 001) which reads as follows:

"At approximately 7:40 pm, I was advised by the yard gate officer Betz that I/M Lopez 12R3146 had injured his right ankle and it was witnessed by the recreation Civilian Jeffrey Keyte, RPL1. I/M Lopez was being taken to the infirmary via the emergency van to be seen by 114 infirmary nurse Fox. Nurse Fox then sent I/M Lopez to St. Elizabeth hospital for evaluation. It was later determined that I/M Lopez had a fractured in his right ankle (sic)."

Lieutenant O'Neil testified that he did not witness the claimant's injury but was notified by a correction officer that an inmate had injured his leg while playing flag football. On receipt of that information the witness called for an emergency van to respond to the area and the inmate was taken to the infirmary. When asked why he did not name the driver of the emergency van in his to/from memorandum, the witness responded that such information is not usually included in memoranda such as that prepared following the incident involving the claimant. Lieutenant O'Neil did not know who was driving the emergency transport van on October 14, 2013.

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]). 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 270, 278 [1985]; 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 of the wet condition of the playing field and the risk of coming into contact with another player. Claimant was admittedly an experienced football player and acknowledged that his injury was caused by a combination of the wet playing field and being clipped by another player. No proof was offered of any concealed or unique risks over and above those which inhere in the sport of flag football generally. Absent any evidence indicating that prison staff "increased the risk associated with the naturally and obviously damp field" liability may not be imposed (Fintzi v New Jersey YMHA-YWHA Camps, 97 NY2d 669, 670 [2001]; see also Maddox v City of New York, 66 NY2d 270 [1985]; Bouck v Skaneateles Aerodrome, LLC, 129 AD3d 1565 [4th Dept 2015]; Ramos v City of New York, 70 AD3d 524 [1st Dept 2010]; Lombardo v Cedar Brook Golf & Tennis Club, Inc., 39 AD3d 818 [2d Dept 2007]; Swan v Town of Grand Is., 234 AD2d 934 [4th Dept 1996]; Schiffman v Spring, 202 AD2d 1007 [4th Dept 1994]). While claimant presented proof that the recreation yard closes "[w]henever weather conditions are severe enough to endanger the safety and lives of both staff and inmates" (Exhibit 1), there is no evidence from which the Court could conclude that the weather conditions were so severe as to require closure. In any event, the fact that safer conditions could have been provided is irrelevant where, as here, the increased risk associated with the damp playing field was obvious (Maddox, 66 NY2d 270; Fintzi, 97 NY2d at 670). Moreover, the risk of being clipped from behind by another player is one of the risks which inhere in the sport of flag football generally. As a result, the Court finds that claimant failed to establish defendant's negligence by a preponderance of the credible evidence.

Based on the foregoing, the claim is dismissed. Let judgment be entered accordingly.

January 12, 2021

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims