A New York state trial court has granted a pair of summary judgment motions, brought by two school districts, which were sued by an official, who slipped and fell during a basketball game.
Central to the court’s ruling was the fact that “there was no evidence that a dangerous or defective condition existed, and that the defendants either created the condition or had actual or constructive notice of it.”
Stephen Strauss was officiating a basketball game between Plainedge High School (PHS) and Valley Stream High School (VSHS) on January 11, 2008 when he allegedly slipped on accumulated water that had been spilled on the floor by members of the aforementioned basketball teams. Strauss and his spouse sued the schools for negligence in their ownership, operation, management, supervision, use and control of their premises.
The schools moved for summary judgment on the grounds that they did not create the alleged condition, nor had actual or constructive notice of the alleged condition that caused Strauss to slip and fall. They further asserted that the plaintiff was an experienced official and “voluntarily assumed the risk of falling during the course of a basketball game since an inherent risk in participating in the officiating of a basketball game is the risk of falling while the game is in progress.”
In its analysis, the court noted that Strauss had approximately 40 years of experience officiating basketball, and had officiated basketball games at PHS on at least 10 to 15 previous occasions. He was considered an independent contractor and received compensation on a per-game basis.
Prior to the start of the game, “Strauss and the other official assigned to the game stood opposite the player benches to inspect the players for prohibited conduct (i.e., dunking the ball and hanging on the rim) or wearing prohibited items of clothing or protective gear. At about 12 minutes prior to the start of the game, one of the officials would routinely validate the scorer’s book and players’ names and numbers. During this time, Strauss would typically ‘run the sideline’ and do a couple of sprints to get warmed up, in the process also checking and taking note of the activities on the basketball court.” After warming up, the officials would inspect the basketball court.
“Within the first couple of minutes of the commencement of the game, during the first quarter, Strauss fell,” wrote the court, quoting from the summary judgment motion. “It was so early in the game that neither team had taken any timeouts for drinking breaks and no evidence was presented that any of the players took water cups or bottles onto the playing surface prior to the accident.”
“The accident happened during a sudden change in possession.” According to Craig Murphy, coach of the Plainedge High School basketball team, “Strauss was backpedaling frantically and while turning to run forward, fell near the sideline by the Valley Stream North bench.” Coach Fabian Jara of the Valley Stream North High School basketball team testified that he saw Strauss backpedal near the Valley Stream bench when he tripped and fell. However, coach Jara saw that while Strauss was backpedaling and would normally have turned to proceed forward, his right foot got caught behind his left foot causing the fall. According to Coach Jara, “Strauss tripped over his own foot.”
The coaches added that they had not observed any water or liquid at or about the location of the accident, and had not seen anyone mopping up at or about the location of the accident after the accident happened. “Coach Jara specifically recalls inspecting the floor where Strauss is alleged to have slipped and fallen, and not finding anything that could have caused Strauss to slip.”
The court noted that “to impose liability upon a defendant in a trip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it” (Leary v Leisure Glen Home Owners Ass’n, Inc., 82 A.D.3d 1169, 920 N.Y.S.2d 193 [2nd Dept. 2011]; Williams v SNS Realty of Long Island, Inc., 70 AD3d 1034, 895 N.Y.S.2d 528 [2nd Dept. 2010]; Dennehy-Murphy v Nor-Topia Serv. Center, Inc., 61 AD3d 629, 876 N.Y.S.2d 512 [2nd Dept. 2009]; see Denker v Century 21 Dept. Stores, LLC, 55 AD3d 527, 528, 866 N.Y.S.2d 681 [2nd Dept. 2008]; Rubin v Cryder House, 39 AD3d 840, 834 N.Y.S.2d 316 [2nd Dept. 20007]). “A defendant has constructive notice of a defect when the defect is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected” (Dennehy-Murphy v Nor-Topia Serv. Center, Inc., supra; Gordon v American Museum of Natural History, 67 NY2d 836, 492 N.E.2d 774, 501 N.Y.S.2d 646[1986]; Williams v SNS Realty of Long Island, Inc., supra; Pryzywalny v New York City Transit Authority, 69 AD3d 598, 892 N.Y.S.2d 181 [2nd Dept. 2010]; Hayden v. Waldbaum, Inc.., 63 A.D.3d 679, 880 N.Y.S.2d 351 [2nd Dept.2009]; Denker v Century 21 Dept. Stores, LLC, supra at 528; Rubin v Cryder House, supra).”
The court recapped the plaintiffs’ argument that “the defendants have not satisfied their initial burden; and issues of fact exist as to whether defendants created the subject defective condition. The plaintiffs contend that certain deposition testimony reveals the following: ‘(1) the players are permitted to drink water while sitting on the bench during the game; (2) the players are permitted to drink water during full time outs; (3) while not technically allowed, the players drink water on the court during thirty second time outs; (4) that it is known that water collects on the court after a thirty second time out; and (5) that immediately preceding the varsity basketball game and plaintiff’s subject accident, the maximum amount of time outs, including thirty second time outs, were taken during the junior varsity basketball game.’”
The court deemed these contentions “speculative. They fail to raise an issue of fact sufficient to defeat the motion. In view of this determination, it is unnecessary to consider the defendants’ arguments regarding the assumption of risk.”
Stephen Strauss and Patricia Strauss v. Plainedge High School and Valley Stream North High School; S.Ct.N.Y., Nassau Co.; 2011 NY Slip Op 31991U; 2011 N.Y. Misc. LEXIS 3561; 7/11/11
