Ducrepin v. U.S.
| Decision Date | 19 March 1997 |
| Docket Number | No. 95 CV 5331(CLP).,95 CV 5331(CLP). |
| Citation | 964 F.Supp. 659 |
| Parties | Gabriel D. DUCREPIN, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
R. Douglas Herbert, New York City, for Plaintiff.
Zachary W. Carter, United States Attorney, Brooklyn, NY (Jennifer C. Boal and Richard M. Molot, Assistant U.S. Attorneys, of counsel), for Defendant.
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. §§ 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.
On February 5, 1997, the issue of liability1 was tried on consent of both parties before this Court. Based on the evidence presented at trial and upon consideration of the legal arguments presented, this Court makes the following findings of fact and conclusions of law.
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, 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,2 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 3 × 5 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 played basketball at the Park almost every other day for two months prior to the incident.
He was also cross-examined regarding his knowledge of the existence of the hole. Defendant's counsel pointed out that, contrary to his testimony on direct, plaintiff had given the following testimony at his deposition:
Plaintiff explained that he meant that he had seen the cracks before, but insisted that he never saw the hole prior to the day of the accident.
When asked if he had measured the depth of the crack or the hole, plaintiff testified that he had not, but he had observed his investigator measuring it. Counsel for defendant then pointed out that when asked at his deposition if he was aware of anyone measuring the cracks or the hole, plaintiff had testified that he didn't know.3 Thus, it was unclear whether anyone had measured the hole and determined it to be one to one and a half inches deep. There was also confusion as to whether the hole was located to the side of the crack or in the middle of the crack. Moreover, the markings by plaintiff on the various photographs entered into evidence also differed somewhat from picture to picture.
Finally, during cross-examination, defendant introduced the hospital record from Peninsula Hospital Center in Far Rockaway, N.Y., where plaintiff was taken by ambulance after the fall.4 According to the notes of the orthopedic resident, plaintiff stated that "he was playing basketball today & landed R [right] foot on another person's foot and describes an inversion type injury." At trial, plaintiff denied that he told the doctor this and denied that he landed on another player's foot.
The defendant presented two witnesses at trial. The first witness, Edwin Roessler, testified that in July 1992, he was employed as lead park technician for first aid, where, among other duties, he supervised the Park's emergency medical technicians ("EMTs"). He testified that on July 22, 1992, he and another Park EMT, John Carbone, responded to the Bay 5 basketball courts, where they found the plaintiff seated on some aluminum bleachers in an area by the basketball courts.
According to Mr. Roessler, while Mr. Carbone attended to plaintiff, Mr. Roessler examined the area of the basketball court where plaintiff had indicated his injury occurred. Mr. Roessler testified that he saw nothing significant enough to cause a fall or to cause him concern. He admitted that he saw the "slight crack" in the pavement but considered it "minor." On cross-examination, he stated that he saw no hole at the time.
Following the incident, Mr. Carbone prepared the "input screen" of an incident report, which Mr. Roessler reviewed and signed. In the report, Mr. Carbone and Mr. Roessler classified the type of accident/incident as an "03," which signifies "Fall From Different Level." Mr. Roessler explained that he selected that particular code based on plaintiff's description that he had jumped up and was coming down from a different level when he was injured. Mr. Roessler further testified that the physical/environmental section of the report bears the code "00", signifying "no physical environment factor." He explained that he did not mention the crack in his report because "it wasn't worthy of note."
The government also presented the testimony of Brian Collier, who was serving at the time of the incident as a maintenance mechanic foreman, responsible for the maintenance of the basketball court at issue. He testified that prior to the opening of the Park around Memorial Day, a regular maintenance check is done of all the basketball courts. Park maintenance personnel continue to check on a periodic basis during the season for obvious safety hazards, such as broken glass, potholes, and "severe" cracks that pose a safety problem. Based on a review of his records, he could find no work orders relating to repairs for the basketball court in question during the time of the incident.
Under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), tort liability for an accident based on the alleged negligence of an employee of the United States is governed by the laws of the state where the accident occurred — in this case, New York. See Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 591-92, 7 L.Ed.2d 492 (1962); Grant v. United States, 271 F.2d 651, 654 (2d Cir. 1959). Under New York law, the plaintiff must establish three elements in order to prevail on a negligence claim: 1) that defendant owed plaintiff a duty of care; 2) that defendant breached that duty; and 3) that the breach was the proximate cause of plaintiff's injury. See Gardner v. United States, 896 F.Supp. 89, 91 (N.D.N.Y.1995). As part of his prima facie case, the plaintiff must show that a defective or dangerous condition existed, and that the United States either created the condition or had actual or constructive notice of the condition and failed to repair or take necessary precautions regarding the condition. Id.; see also Hammond-Warner v. United States, 797...
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