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August 14, 1995

ANDY GARDNER, Plaintiff,

The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.

 This action is brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq. for injuries allegedly sustained on August 1, 1992, when plaintiff was engaged in playing softball at the Skyline Drive baseball field located at Griffis Air Force Base. Plaintiff alleges that the United States was negligent in permitting two eight - to ten - inch holes to exist in the batter's box, having had actual knowledge and notice of this condition. Plaintiff seeks $ 502,213.00 in damages as a result of his injury. The defendant United States has moved for summary judgment.


 On August 1, 1992 plaintiff, a civilian, was participating in a slow-pitch softball tournament at Skyline Drive Field on Griffis Air Force Base. Although plaintiff was an experienced baseball player, he had never played on Skyline Drive Field prior to August 1, 1992.

 Plaintiff was injured in the first inning of the game, during his first time at bat. The injury occurred at approximately 6:00 P.M. The weather was sunny and the field was dry. When plaintiff first entered the batter's box he noticed that there were two holes, eight to ten inches in depth, located approximately two to three feet from one another. (These holes were apparently caused by batters digging their cleats into the batter's box.) Plaintiff does not recall if he mentioned the holes to anyone prior to batting, and he proceeded to hit.

 Plaintiff's injury occurred while he was attempting to leave the batter's box and run to first base. Allegedly, plaintiff's right foot landed in one of the holes while he was swinging, and his right knee twisted and became dislocated when he tried to run to first base.


 Defendant seeks summary judgment, on two separate grounds: (1) failure to establish a prima facie case due to lack of actual or constructive notice of the dangerous condition; and (2) primary assumption of risk.

 Summary Judgment Standard

 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is warranted if, when viewing the evidence in the light most favorable to the non-movant, the court determines that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 112 S. Ct. 2072, 2077, 119 L. Ed. 2d 265 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). The burden of showing that no genuine issue of material fact exists rests on the moving party. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). Where the moving party does not bear the ultimate burden of proof at trial, the summary judgment burden may be satisfied by pointing out the absence of evidence to support the non-movant's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Once the movant shows the absence of such evidence, the burden of persuasion shifts to the non-movant to show that the record contains sufficient evidence to establish each element of its case. Id., at 322, 106 S. Ct. at 2552.

 Under the Federal Tort Claims Act ("FTCA"), state law governs the principles of law to be applied in this type of claim. 28 U.S.C. § 1346(b). In order to prevail on a negligence claim, plaintiff must establish three elements: (1) that the defendant owed him a duty of care; (2) that the defendant breached that duty; and (3) that his injury was proximately caused by the breach. In New York, the standard of care owed by a landowner to someone lawfully on the premises consists of a duty to exercise reasonable care under the circumstances in maintaining the property in a safe condition. Foreseeability is the measure of liability. Basso v. Miller, 40 N.Y.2d 233, 234, 386 N.Y.S.2d 564, 352 N.E.2d 868 (1976).

 Applying New York law, in order to make a valid negligence claim, plaintiff must establish that a dangerous condition existed at the field from which the injury resulted, and that the United States either affirmatively created that condition or had notice, actual or constructive, of its existence. Lowrey v. Cumberland Farms, Inc., 162 A.D.2d 777, 557 N.Y.S.2d 689, 690 (3d Dep't 1990). Additionally, plaintiff must prove that after knowledge or notice was acquired, the United States had a reasonable opportunity to correct the dangerous condition. Putnam v. Stout, 38 N.Y.2d 607, 612, 381 N.Y.S.2d 848, 345 N.E.2d 319 (1976). Plaintiff must present evidence of the length of time the condition existed prior to the accident. Failure to do so results in the dismissal of the action. Hammond-Warner v. U.S., 797 F. Supp. 207, 211 (E.D.N.Y. 1992).


 As stated above, in order for plaintiff to establish a prima facie case, he must show that the defendant either created or had notice, actual or constructive, of the dangerous condition (to wit -- holes in the batter's box) from which his injury resulted. Defendant maintains that summary judgment is warranted because plaintiff failed to satisfy this element. In support of this argument, defendant relies on the deposition testimony of David ...

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