Clark v. State

245 A.D.2d 413, 666 N.Y.S.2d 209, 1997 N.Y. App. Div. LEXIS 13051

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1997
• Status: Published

Opinion

—In a claim to recover damages for personal injuries, the defendant appeals from a judgment of the Court of Claims (Ruderman, J.), dated July 2, 1996, which, upon a finding that the claimant and the defendant are each 50% at fault in the happening of the accident, is in favor of the claimant and against the defendant in the principal sum of $54,067.

Ordered that the judgment is affirmed, with costs.

The claimant’s decedent Lionel Clark II was injured while playing basketball in a State park in Yorktown, New York. The trial court correctly concluded that the claimant’s decedent did not assume the risk of an injury caused by a steep drop-off several inches from the edge of the playing area’s asphalt surface since this “created a dangerous condition over and above the usual dangers that are inherent in the sport” (Owen v R.J.S. Safety Equip., 79 NY2d 967, 970; see, Morgan v State of New York, 90 NY2d 471, 485). Accordingly, the claimant’s decedent cannot be deemed to have legally assumed the risk of an injury which proximately resulted from such a condition (see, Turcotte v Fell, 68 NY2d 432). O’Brien, J. P., Santucci, Joy and Altman, JJ., concur.