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ALBANY � In contrast to the usual collection of auto accident cases and eminent domain matters that typically consume the Court of Claims docket, the court has considered a slew of lawsuits recently involving athletes who were injured or killed on state property. But most of the athletes were not winners in court. Court of Claims judges in recent weeks dismissed claims by a bicyclist who was struck from behind on a state highway and killed, a runner who put his hand through the glass portion of a locker room door, a basketball player who ran into an unpadded wall, and an ice skater who tripped on a hole in the ice. A woman beaned by a Frisbee at Jones Beach came away from the Court of Claims similarly unsatisfied. But a hurdler who was injured on an improperly affixed crossbar has a viable claim, one judge found. In general, the cases were dismissed because the state did nothing wrong or the complainant assumed a degree of risk by participating in an athletic endeavor. But in the case of the hurdler, the government’s negligence created more risk than the athlete bargained for, according to the court. Esther Agita Romeo was a student at Hunter College, one of the colleges of the City University, in January 1998 when the track and field team held practice in an indoor hallway. While attempting to clear a hurdle, her lead foot struck the crossbar. That caused the crossbar to detach. Ms. Romeo’s tailing leg caught the crossbar in midair, causing her to fall and suffer an injury. Judge S. Michael Nadel’s decision for the claimant in Romeo v. City University, 98016, was based on evidence that the crossbar should have been bolted to the hurdle, that it was not property attached, that the coach and manager had been warned that some of the hurdles were not appropriately constructed, and that Ms. Romeo had no way of knowing of the defect. “Although the claimant may have assumed the risk of injury which ordinarily attends this sport, such as falling after striking a properly constructed hurdle, the defendant’s negligence created an enhanced risk not assumed by voluntary participants of the sport,” Judge Nadel wrote. “She was neither aware of the dangerous condition nor was the condition an obvious and open one that should have been perceived.” A trial on damages will be scheduled at a later date. Appearing were Michael A. Fruhling of Gersowitz, Libo & Korek in Manhattan for Ms. Romeo, and Assistant Attorney General Grace Brannigan for the City University. In the other sports-related claims: � A highly sympathetic Judge Donald J. Corbett Jr. ruled against the estate of an off-duty New York state trooper and experienced cyclist who was run down from behind on the Lake Ontario State Parkway near Rochester. Judge Corbett said the fault lies with the driver of the vehicle, not the state. Over the strenuous objections of claimants’ counsel, Judge Corbett applied the so-called “vintage highway rule,” which says that highway adequacy should be measured on prevailing engineering standards at the time the road was designed, not a later date. That rule is not applicable if the state has reconstructed, as opposed to simply repaved, the road, or when the state is on notice of a dangerous condition. Neither exception applied here, according to the court. Consequently, since the highway met 1973 standards, it cannot be held liable for design flaws that existed in 1997. “All this having been said, through no fault of his own, a young New York State Trooper is dead, his widow and young children are forever imbued by the tragedy, and his family, friends and colleagues have only their memories to sustain them,” Judge Corbett wrote in Gerwitz v. State, 100439. Judge Corbett said the estate had the “benefit of superb lawyering from highly skilled counsel,” but the evidence simply fell short. “[M]y task is to separate the wheat from the chaff, to discern the actual from the theoretical, and, when those analyses are concluded, the blame cannot be shared, and the State cannot be held culpable,” he said. James C. Gocker of Trevett, Lenweaver & Salzer in Rochester argued for the claimant. Assistant Attorney General Thomas G. Ramsay defended the state. � In the case of the runner, Hampton v. State, 101970, Judge Alan C. Marin said the claimant could not establish that the window he put his hand through was made of ordinary glass rather than safety glass. The claim arose on Oct. 26, 1998, when Trent Hampton, a freshman at the Farmingdale campus of the State University of New York and a member of the cross country team, was entering the locker room after his workout. When he pushed on the glass portion of the door, the window broke and Mr. Hampton suffered severe cuts. Because the broken glass was splattered with blood, it was regarded as hazardous waste and promptly discarded. However, testimony suggested that the glass had broken into dozens of pebble-like pieces, which is suggestive of safety glass and less consistent with regular glass. Assistant Attorney General Anne C. Leahey represented the state. Mitchell Lidowsky of Viders & Wiesen in Carle Place, Nassau County, argued for Mr. Hampton. � The basketball player’s claim stemmed from an incident on Feb. 22, 2000, when Anthony J. Marturano was playing in an intramural game at the State University of New York at Oswego. After leaping to block a lay-up, he collided with an unpadded wall about 7 feet behind the backboard. An architect testified at trial that there should be at least 10 feet between the backboard and the wall, and that the lack of padding was contrary to architectural standards. However, while it may have been better to have padding against the wall, the fact of the matter is that Mr. Marturano was an experienced hoopster who should have been cognizant of an open and obvious danger, Judge Nicholas V. Midey Jr. said in Marturano v. State, 102282. Assistant Attorney General Gordon J. Cuffy defended the state. Matthew H. McNamara of Thorn, Gershon, Tymann & Bonanni in Albany prosecuted the claim. � In the case of the ice skater, Sonia Soltren broke her ankle at Riverbank State Park in Upper Manhattan while skating with her two young children. In dismissing the claim, Judge Marin cited several discrepancies in the claimant’s case. But the ruling hinged on the fact that Ms. Soltren was an experienced skater who admittedly knew the surface was not smooth. Assistant Attorney General Victor J. D’Angelo represented the state. James McGarry of Jacoby & Meyers appeared for the claimant. � The Frisbee mishap at Jones Beach occurred when Lucy Marino and her two daughters were enjoying a Sunday at the ocean. A flying disc struck Ms. Marino on the bridge of her nose. Judge Nadel said there was a lack of evidence that the state knew that people were playing with a Frisbee, in violation of park rules, or that the game is the sort of “ultrahazardous and criminal activity” that would possibly impute liability. Assistant Attorney General John Shields defended the state. Solomon Abrahams of the Lawyers Legal Services Plan represented the claimant.

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