Domino v. Mercurio

• Decision Date: 10 October 1963
• Citation: 244 N.Y.S.2d 69,13 N.Y.2d 922
• Parties: , 193 N.E.2d 893 John DOMINO, individually, and as Guardian ad Litem of Joseph Domino, an Infant, Respondent, v. Philip S. MERCURIO et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 69

244 N.Y.S.2d 69

13 N.Y.2d 922, 193 N.E.2d 893

John DOMINO, individually, and as Guardian ad Litem of Joseph Domino, an Infant, Respondent, v. Philip S. MERCURIO et al., Appellants.

Court of Appeals of New York.

Oct. 10, 1963.

Appeal from Supreme Court, Appellate Division, Fourth Department, 17 A.D.2d 342, 234 N.Y.S.2d 1011.

Father, individually and as guaradian ad litem of minor son, brought action against the Board of Education of the City of Buffalo and two employees of the board for injuries sustained by the son when he fell over a bench while playing in a softball game in school playground maintained by the board, and for medical expenses and loss of services.

The Erie Trial Term, Jacob Tick, J., entered judgment for the father, and the board and its employees appealed.

The Appellate Division, Halpern, J., affirmed the judgment and held that board could be held liable for negligence of its employees, who were playground supervisors, in allowing spectators to congregate too close to third base line and to push a bench into a dangerous position near the third base line, and that it was not necessary that board itself be found guilty of negligence in selection of playground supervisors. Williams and Henry, JJ., dissented.

The board and employees appealed to the Court of Appeals.

Elmer S. Stengel, Buffalo (John P. Egan, Buffalo, of counsel), for defendants-appellants.

Garvey, Magner, Vispi & Sullivan, Buffalo (Philip H. Magner, Jr., Buffalo, of counsel), for plaintiffs-respondents.

Judgment affirmed with costs. The existence of issues of fact with respect to negligence was conceded by the failure of defendants to move to dismiss at the conclusion of the case. The Appellate Division, in the exercise of its power to reverse in the interests of justice, examined the issue of whether defendant Board of Education was liable in any event. This court, however, cannot reach that issue since no exception was taken to the trial court's submission of that issue to the jury.