CLARK v. STATE (1997)

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 Equipment, 79 N.Y.2d 967, 970, 582 N.Y.S.2d 998, 591 N.E.2d 1184;  see, Morgan v. State of New York, 90 N.Y.2d 471, 485, 662 N.Y.S.2d 421, 685 N.E.2d 202).   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 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964).

MEMORANDUM BY THE COURT.