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United States District Court, E.D. New York

January 7, 2004.

JOHN SCOMA, Plaintiff; — against — UNITED STATES OF AMERICA, Defendant

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Plaintiff John Scoma, a former inmate at the Metropolitan Detention Center in Brooklyn, New York ("MDC"), seeks damages for injuries he allegedly sustained while playing a Page 2 game of basketball on the recreation deck of the MDC. Scoma brings this negligence action against the United States (the "government"), which owns and operates the MDC, under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671-2680 ("FTCA"). The government now moves for summary judgment, arguing that based on the undisputed facts of this case, Scoma cannot recover for any injuries because it was under no duty to protect or warn Scoma of the inherent, open and obvious risks that he assumed when he played basketball on the recreation deck of the MDC. For the reasons stated below, I grant the government's motion for summary judgment.


  The following facts are relevant for purposes of this motion. From October 20, 2000 to December 6, 2001, Scoma served a sentence at the MDC.*fn1 After being housed in several different units at the MDC, on February 16, 2001, Scoma was transferred to Unit 1-61. (PI. R. 56. ¶ 4.)

  Unit 1-61 has a partially open air recreation deck (the "Deck") which inmates use to play, among other games, basketball. (Id. ¶ 5.) Although the Deck is enclosed by four walls, the northern wall is partially open to the outside elements, as the top portion is made of security mesh. (Id. ¶¶ 6-8.) This feature allows fresh air, but also rain and snow, to enter the Deck. Drains are located at the two lowest points of the floor to allow water to drain out of the recreation area. (Id. ¶ 19.) One drain (referred to here as the "Drain") is in the center of the eastern wall, where the basketball backboard is also positioned. The Drain is thus directly under Page 3 the basketball hoop. (Id. ¶¶ 14, 21.) More precisely, the Drain is about six inches south of the vertical concrete column supporting the basketball backboard. One of its edges is one and three-quarter inches away from the eastern wall. (Id. ¶¶ 22.) The Drain measures fifteen by fifteen inches and is inset into the floor approximately one-eight of an inch, to ensure that it cannot be removed by the inmates. (Id. ¶¶ 23, 24.) It is a standard traffic-grade heavy duty brass drain which is secured with security proof screws and is tamper proof. (Id. ¶ 23.) Its purpose is to allow melting snow and rain to drain out of the Deck. (Id. ¶ 19.) Photographs of the Drain are attached to this memorandum as an Appendix.

  While playing a game of "four-on-four" basketball with other MDC inmates on the evening of February 20, 2001, Scoma went for a rebound. On his way down, his right foot landed on the left part of the Drain. (Pl. R. 56.1 ¶¶ 25-27.) According to Scoma, his foot twisted to the right because the Drain was not level, and he was thereby injured. (Id. ¶¶ 28, 29) (citing Scoma Dep. at 68, 58-59; Compl. ¶ 20.) On May 17, 2002, Scoma's counsel filed the complaint in this case, alleging negligence.


 A. The Summary Judgment Standard

  Under Rule 56 of the Federal Rules of Civil Procedure, the moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The substantive law governing the case identifies the facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will Page 4 properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Id.

  Moreover, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 586-87 (quoting Fed.R.Civ.P. 56(e)). However, "[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252.

 B. Scoma's Negligence Claim

  Scoma claims that the government is liable for his injuries because it "negligently . . . created and/or caused the 1-61 recreation deck . . . to be [sic] become and remain in an unsafe dangerous and defective condition in that drainage cap on the groung [sic] that was located directly under the basketball backboard (net) was uneven, raised, broken, unleveled, sunken, cracked and hazardous" and which therefore caused him to fall. (Compl. ¶¶ 20, 21.) The government argues that it is entitled to summary judgment because Scoma assumed the foreseeable risk of injury when he played on the Deck, since he had previously observed, on numerous occasions, the uneven Drain. (Def. Mem. Law Supp. Mot. Summ. J. at 7.) Page 5

  In order to establish negligence under New York law*fn2, a plaintiff must prove these elements: "`(1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof.'" P.W.B. Enters., Inc. v. Moklam Enters., Inc., 633 N.Y.S.2d 159, 185 (1stDep't 1995) (quoting Akins v. Glens Falls City School Dist. 53 N.Y.2d 325, 333 (1981)). Despite New York's adoption of comparative negligence principles, a defendant can be awarded summary judgment where the plaintiff has assumed the risk of a particular activity. See Morgan v. State, 90 N.Y.2d 471, 485 (1997). This is because the assumption of risk defense,

[S]till helps and serves to define the standard of care under which a defendant's duty is defined and circumscribed "because assumption of risk in this form is really a principle of no duty, or no negligence and so denies the existence of any underlying cause of action. Without a breach of duty by the defendant, there is thus logically nothing to compare with any misconduct of the plaintiff."
Id. at 485 (emphasis in original, citation omitted). Thus, while assumption of risk is no longer denominated an affirmative defense, the defense nevertheless continues to serve in a functionally equivalent manner.

  Participants in an athletic activity assume the risks of "those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation." Turcott v. Fell, 68 N.Y.2d 432, 439 (1986) (citation omitted). See, e.g., Brown v. City of Peekskill, 622 N.Y.S.2d 772, 772-73(2d Dep't 1995) (plaintiff who acknowledged he was aware of existence and dangerous nature of curb at basketball court assumed risk of injury); Weithofer v. Unique Page 6 Racquetball and Health Clubs, Inc., 621 N.Y.S.2d 384, 385 (2d Dep't 1995) ("walleyball" participant who saw court was damp and covered with water puddles assumed risk of injury); Gonzalez v. City of New York, 610 N.Y.S.2d 569, 570 (2d Dep't 1994) (plaintiff who acknowledged he had observed alleged defect near home plate assumed risk of injury). A player's participation in a sport relieves the "owner or operator of a sporting venue from liability for inherent risks of engaging in a sport, when a consenting participant is aware of the risks; has an appreciation of the nature risks; and voluntarily assume the risks." Morgan, 90 N.Y.2d at 484 (citations omitted). In other words, "a premises owner continues to owe `a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant performed its duty.'" Id. (citation omitted). Thus, "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation." Id.

  An inherent risk of playing outdoor basketball is playing on an uneven or irregular surface. See, e.g., Sykes v. County of Erie, 94 N.Y.2d 912, 913 (2000) (affirming summary judgment on ground that plaintiff assumed risk of injury where plaintiff "stepped into a recessed drain near the free throw line while playing basketball on an outdoor court owned by defendant" because "the risks of playing upon an irregular surface are inherent in outdoor basketball activities . . . and . . . the condition of the court was open and obvious."); Welch v. Bd. of Educ. of New York City, 707 N.Y.S.2d 506, 507 (2d Dep't 2000) ("by choosing to play basketball at night on an unlit court, the plaintiff assumed all the risks inherent in the activity, including his inability to detect what would otherwise be an open and obvious condition [i.e., a cement Page 7 mound]") (citation omitted); Sheridan v. City of New York, 690 N.Y.S.2d 620, 620 (2d Dep't 1999) (plaintiff who tripped on large hole — "two feet by two feet, and two inches deep . . . located just to the front and right of a basket" assumed risk of injury); Paone v. County of Suffolk, 674 N.Y.S.2d 761, 762 (2d Dep't 1998) (because cracks and breaks in the paved surface of the court were clearly visible, plaintiff assumed the risk of injury from stepping into a hole or depression when he chose to play basketball on a court surface with a faulty condition that was open and obvious); Worrell v. New York City Hous. Auth., 680 N.Y.S.2d 597, 598 (2d Dep't 1998) (plaintiff who slipped and fell over an uneven patch of tar on an outdoor basketball court assumed risks inherent in playing on the outdoor basketball court; and as an experienced basketball player who had played on the same basketball court on prior occasions while the court was in the patched condition, he was fully aware of the tar patches).

  The same has been held to be true with respect to indoor basketball. In Greeny, City of New York, 693 N.Y.S.2d 43 (1st Dep't 1999), the Appellate Division considered whether an inmate at a New York City correctional facility could hold the government liable for him tripping over some ridges on the floor of an indoor basketball court during a basketball game. Marcano v. City of New York, 743 N.Y.S.2d 456, 465 (1st Dep't 2002), rev'd, 754 N.Y.S.2d 200 (relating unreported facts of Green). The court determined that the inmate had assumed the risk of injury, and thus could not recover, because he had admitted that he had played on the court numerous times and had observed the ridges about a week prior to the incident where he injured himself. Marcano, 743 N.Y.S.2d at 465 ("The plaintiff `noticed that something's wrong . . . maybe about a week before the accident . . . the floor had ridges on it. . . ."). The Appellate Page 8 Division, in affirming the lower court's grant of summary judgment to the defendant, stressed that the faulty condition was "perfectly obvious." Green, 693 N.Y.S.2d at 385.

  Based on the above case law, the government is entitled to summary judgment. Scoma was aware, prior to the incident at issue, of the uneven nature of the Drain on the Deck, and of the risk associated with that condition. Scoma admitted that four days before the incident, he noticed the Drain "the minute that [he] stepped onto the recreation deck." (Pl. R. 56. ¶ 33 quoting Scoma Dep. at 56-57).) He also noticed that the Drain "dips in" and was "not level" with the concrete floor. (Id. ¶ 34 (quoting Scoma Dep. at 57).) Moreover, Scoma shot baskets on the Deck every morning for the four days before the incident, and he played a "few games" during that time as well. (Id. ¶¶ 30, 31 (quoting Scoma Dep. at 61).) Scoma, who is a good basketball player (see Scoma Dep. at 27-28 (describing himself as a "pretty good shot," who others wanted on their team)), appreciated that a recessed drain under the net could cause him to land awkwardly after snaring a rebound, and that injury could ensue. The photographs of the Drain relied on by both parties only confirms my conclusion. (See Appendix attached hereto.) I am satisfied that the uneven nature of the court's surface, caused by the recessed Drain, was an open and obvious defect of which Scoma should have been, and indeed was, aware.

  Scoma presents no evidence suggesting that he was unaware of the dangers of the Drain or that the Drain itself did not pose an open and obvious risk. (See generally Def. Decl. Opp.) I reject Scoma's assertion that there can be no "assumption of risk" defense where the plaintiff is an inmate confined to a detention center and thus "had no option to play at a different basketball court . . . and, accordingly, did not voluntarily assume any risk." (Id. ¶ 16; see also id. Page 9 ¶ 30.) Scoma was not forced to play basketball. The fact that he was an inmate, and thus did not have his choice of venues in which to play, does not alter the applicable legal principles.

  I also reject Scoma's contention that the dangerous condition was not inherent to basketball because it "was created by the defendant to remedy a totally separate liability of the defendant, i.e., water accumulation." (Def. Dec. Opp. ¶ 28.) The New York Court of Appeals foreclosed this argument when it held that a "recessed drain near the free throw line" was part of the "irregular surface . . . inherent in outdoor basketball activities . . . and that the condition of the court was open and obvious," thus negating liability. Sykes, 94 N.Y.2d at 913.

  Last, Scoma's attempt to create an issue of fact with respect to the open and obvious nature of the Drain*fn3 is similarly unavailing. Both the record and common sense demonstrate that Scoma knew the inherent dangers. (See supra.)

  Because the record is devoid of any evidence from which the government could properly be found liable for Scoma's purported injuries, its motion for summary judgment must be granted. Page 10


  For the foregoing reasons, the government's motion for summary judgment is granted.

  So Ordered.

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