A trial was heard on February 16, 2018 via video-conferencing technology.Claimant testified that on April 7, 2013, during his incarceration at Eastern NY Correctional Facility, he was in the recreation yard when he was struck in the right eye by an errant softball that was batted by an inmate engaged in an informal game on the softball field. Claimant contends that he was unaware that softball was being played and that defendant failed to warn and protect claimant from being struck by an errant ball. Claimant also contends that defendant failed to administer appropriate medical care to claimant’s resulting eye injury. In addition to his testimony, claimant’s exhibits were received into evidence as follows: photographs of the recreation yard (Claimant’s Exs. 1, 2, 9-11, 15); claimant’s Ambulatory Health Records (Claimant’s Exs. 3-5); claimant’s Admission and Discharge Summary (Claimant’s Ex.6); claimant’s Requests and Reports of Consultation; (Claimant’s Exs. 7, 8); claimant’s Medical Records from Eastern (Claimant’s Ex.12); claimant’s Medical records from Albany Medical Center (Claimant’s Ex.13) and claimant’s Injury Report and Yard Logbook (Claimant’s Ex.14). Claimant did not present any fact witnesses nor any testimony from a medical professional.Claimant testified that he went into the recreation yard to smoke a cigarette. According to claimant, there was no one playing softball on the field when claimant entered the yard. Claimant was not aware that inmates would be playing ball. He later learned that it was the first time in the season when the softball equipment had been made available to the inmates.Claimant walked toward the bench located behind the fenced area around home plate, an area he described as directly behind where the home plate umpire would stand. Claimant marked his Exhibit 10 with a red pen to indicate that he was standing to the right of the bench located behind the fence around home plate (Claimant’s Ex. 15). Claimant stood next to an inmate who was seated on the bench. Claimant had been in the yard for approximately ten minutes when the seated inmate handed claimant a Newport cigarette. At that moment, claimant heard a click and someone yelled “heads up!” Claimant looked up and was immediately hit in the right eye with a batted softball.Claimant fell to the ground in pain and remained there for a few minutes. Correction officers responded to the scene. After several minutes, claimant was able to walk and was escorted to the facility’s clinic. Claimant was examined at the clinic by a nurse (Claimant’s Ex. 14). Claimant was given ibuprofen and, because a doctor was not on site, claimant was scheduled to see a doctor the following afternoon at the clinic.Claimant returned to his cell where he continued to have pain and was vomiting. The next morning claimant’s right eye was swollen and red, prompting him to ask to go to the clinic earlier than his scheduled appointment. Claimant’s request was granted. According to claimant, the doctor told claimant that his cornea was fine and that eyedrops would be ordered for him. The next day, claimant was granted permission to obtain a second opinion from a different doctor at the clinic. Upon examination by the second doctor, claimant was sent to Albany Medical Center where he was informed that he had a retinal tear. Claimant was scheduled for surgery to repair the tear, which was performed on April 16, 2013 (Claimant’s Exs. 6,7, 8). Weeks after the surgery, claimant’s right eye was very sensitive to light and his sight was hazy. He testified that he continues to suffer an impairment in his sight, has had cataract surgery and suffers from glaucoma, all as a result of the injury he sustained to his right eye on April 7, 2013. On cross-examination, claimant testified that he believes that his retina has been repaired and that he does not require any further surgeries.At the conclusion of claimant’s case, defendant moved to dismiss the claim on the ground that claimant did not establish that defendant was negligent and that claimant had not presented any proof from a medical professional to establish that the defendant had departed from the appropriate standard of medical care in treating claimant’s injury. Defendant further argued that while claimant’s accident was unfortunate, the resulting injury was due to claimant’s failure to observe that which was readily observable given claimant’s close proximity to the ball field. Claimant opposed the motion and argued that he had never been given any notice from defendant that the ball field was going to be used to play softball. The Court reserved decision on the motion.The State did not present any witnesses or other evidence.AnalysisIt is well established that “[t]he State just as any other party . . . is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived” (Flaherty v State of New York, 296 NY 342, 346 [1947]) and with respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506, 513 [1984]; Preston v State of New York, 59 NY2d 997, 998 [1983]; Basso v Miller, 40 NY2d 233, 241 [1976]). ” ‘While landowners have a duty to prevent the occurrence of foreseeable injuries on their premises, they are not obligated to warn against a condition on their land that could be readily observed by the reasonable use of one’s senses . . . Readily observable conditions do not pose an unreasonable risk of injury (citations omitted)’ ” (Martinez v City of New York, 307AD2d 989, 991 [2d Dept 2003]). The State is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851 [1985]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]).The Court finds that the State fulfilled its duty to protect the inmate spectators and bystanders from errant softballs by “screening the area… behind home plate where the danger of being struck by a ball is the greatest” (Akins v Glens Falls City School Distr., 53 NY2d 325, 331 [1981]; see Haymon v Pettit, 9 NY3d 324, 328 [2007]; Davidoff v Metropolitan Baseball Club, 61 NY2d 996, 997-998 [1984]; Tarantino v Queens Ballpark Co., LLC, 123 AD3d 1105, 1107 [2d Dept 2014]). Also, the State did not have a duty to warn its inmates that the readily observable softball field may become active if and when other inmates elected to use the field to play softball (see Cherry v Hofstra Univ., 274 AD2d 443 [2d Dept 2000]. While claimant may have been a “mere bystander” and not a spectator of the softball game (Roberts v Boys & Girls Republic, Inc., 51 AD3d 246, 247 [1st Dept 2008]; see Starke v Town of Smithtown, 155 AD2d 526 [2d Dept 1989]), claimant assumed the risks entailed by voluntarily standing in close proximity to the softball field, among them the risk of being hit in the eye by an errant softball (see Starke, 155 AD2d 526; Koenig v Town of Huntington, 10 AD3d 632, 633 [2d Dept 2004]). Having chosen to stand behind the fenced area directly behind home plate, claimant was bound to employ a reasonable use of his senses to observe that inmates had entered the softball field (see Cherry, 274 AD2d 443).The Court finds claimant assumed the risks associated with voluntarily standing in close proximity to an active ball field, which included the risk of being hit with an errant softball (see Spiteri v Bisson, 134 AD3d 799, 801 [2d Dept 2015] [assumption of risk applies to spectators or bystanders who place themselves in close proximity to a playing field]). Thus, there is no basis upon which the State can be held liable for the injury claimant sustained when he was struck in the right eye by an errant softball.It is also well settled that the State owes a duty of ordinary care to provide its charges with adequate medical care (see Mullally v State of New York, 289 AD2d 308 [2d Dept 2001]; Kagan v State of New York, 221 AD2d 7, 8 [2d Dept 1996]). To prove that the State failed in its duty, claimant must establish by a preponderance of the evidence that the State departed from good and accepted standards of care and that such departure was a substantial factor or a proximate cause of the alleged injuries (see Mullally, 289 AD2d 308; Kaminsky v State of New York, 265 AD2d 306 [2d Dept 1999]). Where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is required to establish that defendant’s alleged negligence caused or contributed to claimant’s injuries (Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]). A departure from good and accepted medical practice cannot be inferred from expert testimony; rather the expert must expressly state, with a degree of medical certainty, that defendant’s conduct constitutes a deviation from the requisite standard of care (see Stuart v Ellis Hosp., 198 AD2d 559 [3d Dept 1993]; Sohn v Sand, 180 AD2d 789 [2d Dept 1992]). Claimant must also prove that his “injuries proximately resulted from the defendant’s departure from the required standard of performance” (Tonetti v Peekskill Community Hosp., 148 AD2d 525 [2d Dept 1989]).Here, claimant failed to present any competent medical evidence, either from a treating physician or from an expert whose opinion was based upon claimant’s medical records, to support claimant’s allegations of inadequate medical care or medical malpractice. Claimant’s own unsubstantiated assertions are insufficient to meet claimant’s burden of proof (see Wells v State of New York, 228 AD2d 581 [2d Dept 1996]; see Davis v State of New York, 151 AD3d 1411 [3d Dept 2017]; Wood, 45 AD3d 1198). Accordingly, claimant failed to establish that the medical care provided by defendant was either inadequate or constituted medical malpractice.Accordingly, defendant’s motion to dismiss the claim, made at the conclusion of claimant’s case, is hereby GRANTED.Let judgment be entered dismissing Claim No. 125985.
