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DUCREPIN v. UNITED STATES

March 19, 1997

GABRIEL D. DUCREPIN, Plaintiff, against UNITED STATES OF AMERICA, Defendant.


The opinion of the court was delivered by: POLLAK

 POLLAK, United States Magistrate Judge:

 On December 26, 1995, plaintiff Gabriel D. Ducrepin brought suit against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. ยงยง 1346(b), 2671, et seq., seeking damages for injuries allegedly incurred on July 22, 1992, when he fell while playing basketball on a court at the Gateway National Recreation Area. Plaintiff claims that defendant United States, which owned and controlled the basketball court, was negligent in failing to maintain, inspect and repair the basketball court, or to take the necessary precautions to prevent the development of the defect or dangerous condition -- allegedly, a crack and hole in the surface of the court -- which caused plaintiff to fall and sustain the claimed injuries.

 Evidence Presented At Trial

 Pre-trial stipulations

 Prior to trial, the parties stipulated that on July 22, 1992, plaintiff fell while playing basketball on a basketball court located at the Gateway National Recreation Area, Jacob Riis Park (the "Park"), Breezy Point Unit. It was further stipulated that on July 22, 1992, defendant owned and controlled the basketball court where plaintiff fell.

 Plaintiff's Case

 Plaintiff, a 40 year old male, testified at trial that on July 22, 1992, he drove to the Park, arriving at the basketball court at around 3:00 p.m., where approximately nine people were shooting baskets at one end of the court. Plaintiff voluntarily began to shoot baskets with them and eventually became involved in a full-court game of basketball.

 Although plaintiff's testimony was inconsistent on whether and how many times he had previously played on this particular basketball court, *fn2" this Court finds that plaintiff had played on this basketball court on several occasions prior to the date of the accident. Further, plaintiff testified that "a few days" before the accident, he had observed "a few cracks on the pavement" under the basket at that end of the court where he ultimately fell, but he did not report the cracked pavement to anyone at the Park because he "didn't think it was necessary."

 Plaintiff testified that after playing for approximately one-half hour without incident, he got possession of the ball and started his drive toward the basket when he was approximately 18-20 feet away. He further testified that when he was approximately ten feet away from the basket, he stopped and jumped up to take his shot. According to plaintiff's testimony, an opposing player was approximately "a foot or two away" from plaintiff when he jumped to take his shot, but the other player did not touch the plaintiff. As he came down from his shot, plaintiff testified that he placed the bottom right side of his right foot into a hole in the cracked pavement. He testified that he heard "a loud pop," and fell forward hitting his knee on the pavement and landing on his right hand in an effort to protect himself. He testified that his foot was in a hole, approximately an inch or an inch and a half deep and "about the size of [his] head" in width. He testified that he had never noticed the hole there before he fell.

 According to plaintiff's testimony, two members of the Park Police arrived approximately five minutes after the accident and stayed with him for twenty-five to thirty minutes until the ambulance arrived. He testified that although the Park employees spoke to the other players, he did not know if they wrote anything down because he was lying on the pavement in pain. He was then taken to the hospital by ambulance.

 During the course of his testimony, plaintiff introduced, without objection, three 3x5 inch photographs of the basketball court where he fell. According to plaintiff's testimony, the photographs were taken three days after the accident.

 On cross-examination, plaintiff admitted that he had been playing basketball for many years since high school in 1975, and that he was aware from his reading and from watching professional and college basketball on television that people can fall and get hurt while playing basketball. He further admitted that during his deposition, he testified that he had ...


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