This was originally published on the SGR Blog.
Court Adjudicates Village’s Negligence Liability for Fractured Elbow
On November 2, 2016, Kathleen Noonan was playing doubles tennis on court number 4 at the Garden City Recreational Tennis Complex. The tennis complex is a public facility that is owned, operated and maintained by the Village of Garden City. Noonan testified at her oral deposition that as she was playing tennis, she had to back pedal in an attempt to get in a position to return the ball. She indicated that she back pedaled past the baseline and raised her racket back to hit the ball. At that point, her left foot went into a depression and her heel became caught on a sprinkler head, causing her to fall to the ground. She testified that she was later diagnosed with a fractured elbow, amongst other injuries. Noonan testified that the sprinkler head on which she tripped was located approximately 4/5 of the way from the baseline toward the back screen/curtain.
The Village moves for an Order granting summary judgment and dismissing the complaint on the grounds that: (1) Noonan assumed the risk of injury inherent in the sports/activity of tennis; (2) the Village did not have actual or constructive notice of the alleged defective condition; and (3) the alleged defective condition of the tennis court was de minimus, and thus not actionable.
To prove a prima facie case of negligence, a plaintiff must establish: (1) the existence of a duty on the part of the defendant to the plaintiff; (2) a breach of that duty; and (3) injury suffered by the plaintiff as a result of the breach.
The Village submitted the testimony of Tom McGerty, the recreational attendant for the Village, a position he held for the past six years. His responsibilities included running the tennis facility which was constructed over 17 years ago. He was responsible for identifying whether a sprinkler head needed to be changed. McGerty indicated that the sprinkler heads located on the ground were flush with the court surface and were situated five inches from the screen separating the wall and the court. After he was notified of the accident, he inspected the court at the location identified by Noonan and found no depressions or defects. And McGerty had no knowledge of any other tennis players falling or tripping over the sprinkler heads located on court number 4.
Assuming that the Village made a prima facie case for a summary judgment based upon the evidence submitted, the Court found that Noonan’s expert, Stephen E. Schwartz, PHD, CRSS raises several questions of fact for the jury to decide. Schwartz was certified by the National Intramural and Recreational Sports Association as a recreational sports specialist. Based upon his experience, expert Schwartz affirmed that he was familiar with the relevant standards with regard to the construction, configuration and maintenance of Har-Tru tennis courts (like court number 4) as they existed at the time of Noonan’s accident.
Har-Tru is a product made from a specific type of natural green stone, and although the playing surfaces are stable and durable, they are not like cement or asphalt and are thus subject to erosion through regular play and weather. They require regular maintenance. A daily schedule is required for certain aspects of appropriate maintenance, specifically, the courts must be inspected for play hazards such as divots, hard spots or slippery spots and if such hazard are identified they must be repaired. The courts must also be watered daily though a sprinkler system that provides coverage for the entire court surfaces. In addition to daily maintenance, periodic maintenance is required as well as annual reconditioning. There are numerous irrigation options available to accomplish this, the safest type being a subsurface system that irrigates the court from below with no components on the court surface. The second-best way is to utilize overhead sprinkler systems. Lastly, surface sprinkler system, including the use of “pop up” heads may be used; however, such system requires careful placement of the sprinkler head outside all areas of play so as to prevent tripping hazards and the risk of resulting injury to players on the court. When those “pop up” sprinklers are retracted they are designed to be flush with the courts surface. Mr. Schwartz explained that the retractable head sprinklers will result in a depression in the Har-Tru surface surrounding the sprinkler head that develops over time and careful daily inspection was required.
The Village’s opposition papers included a photograph of the sprinkler head on the day of the accident. Expert Schwartz opined that within a reasonable degree of certainty, the picture clearly depicted that the sprinkler head was well within the area of play and had a significant depression around it. Expert Schwartz further opined that the tennis court was negligently configured given the location of the sprinkler head in the area of play. The placement of a sprinkler head in such a location was improper and constituted a breach of appropriate standards for the proper placement of sprinkler heads for Har-Tru tennis courts. Water continued to leak when the sprinklers were turned off which resulted in erosion of the Har-Tru material, around the sprinkler head which created a depression or “divot” around the sprinkler head. That danger was compounded by the fact that such sprinkler heads can become “camouflaged” through the aggregation of dust and staining created from play on the Har-Tru surface.
Furthermore, expert Schwartz affidavit indicated that it was his opinion that McGerty, Villages’ employee, failed to properly inspect and repair the tennis court on the morning of the accident because the depression was there to be seen and he did not observe it. Moreover, since the sprinkler were last run the evening before the incident, the depression could not have formed after his inspection on the morning of the incident. In conclusion, expert Schwartz opined that the sprinkler head was improperly located within the area of play; there was a failure to properly inspect the court and identify the depression as well as repair its cause; as a result of the depression, which had a camouflaged sprinkler head top consequently above surface level in its center, was located in the area of play; that posed an unacceptable tripping hazard, in the nature of a trap, to players on the court; and as a result, Noonan’s foot and the depression became caught on the sprinkler head located in the play area; and there can be no doubt that the condition was not a risk inherent to the sport of tennis.
The Villages’ motion for summary judgment and dismissing Noonan’s complaint was denied.