Kaufman v. City of New York

Decision Date02 May 1961
Citation30 Misc.2d 285,214 N.Y.S.2d 767
PartiesKarl KAUFMAN, As Administrator of Goods, Chattels and Credits which were of Alan Kaufman, deceased, Plaintiff, v. CITY OF NEW YORK and The Board of Higher Education, Defendants.
CourtNew York Supreme Court

Seymour Frank, New York City, for plaintiff.

Leo A. Larkin, for defendants; Corporation Counsel, New York City, by James E. O'Reilly, Brooklyn, and George A. Weiler, New York City, of counsel.

J. IRWIN SHAPIRO, Justice.

When this case was called for trial, both sides agreed to waive a trial by jury and to have the Court decide all issues of law and fact.

The plaintiff is the father of the deceased, Alan Kaufman, and the administrator of his estate.

He brings this action against the City of New York and The Board of Higher Education to recover damages for the death of his son, caused, he contends, by the negligence of the defendants.

At the end of the plaintiff's case the action was discontinued on the merits without costs against the defendant, The City of New York .

The defendant, the Board of Higher Education, then moved to dismiss the plaintiff's complaint, and decision was reserved upon that motion. Said defendant then rested without offering any proof and renewed its motion to dismiss. Decision was again reserved.

The deceased, nineteen years of age, was a student in his fourth term at Brooklyn College.

On November 18, 1954, between 1:00 and 2:00 p. m. he was engaged in what has been described as a three-man basketball game in the third-floor gymnasium of the college.

Plaintiff's proof establishes that this three-man basketball game is played by three men on each side. It was being played in one of the sections of the gymnasium, and the accident occurred when one Charles Kochenski, playing guard opposite the deceased, jumped for the basketball at the same time that the deceased did; they were going up for a jump-shot, and in the process they bumped their heads together.

It is conceded that as a result of that occurrence the deceased immediately became unconscious, never regained consciousness, and that his death ensued therefrom.

Giving the plaintiff the benefit of every doubt on the uncontradicted facts in the case, the Court must conclude that the plaintiff has failed to make out a cause of action as a matter of law. There is no contention in this case of improper construction of the gymnasium, or that the premises were otherwise maintained in an unsafe or improper condition. The sole complaint is the alleged failure to properly supervise the playing of this three-man basketball game.

Even if it be assumed that there were no instructors present at the time, and the plaintiff's proof is deficient in this respect, for his witness to the occurrence merely testified that he did not know or recall whether any instructor was present at the time that the game was being played, and the examination before trial, offered in evidence by the plaintiff, contains a sworn statement by an instructor, that he and another instructor were in fact present in the gymnasium at the time of the occurrence, there is no legal causal connection between the alleged failure of an instructor to be present and the injury and consequent death of the decedent.

If the instructor were present and watching and supervising the game, he could not have stopped the boys from bumping their heads together; that is one of the natural and normal possible consequences or occurrences in a game of this sort which cannot be prevented no matter how adequate the supervision. As the Court said in the oft-cited case of Ohman v. Board of Education of City of New York, 300 N.Y. 306, 310, 99 N.E.2d 474, 475.

'This is one of those events which could occur equally as well in the presence of the teacher as during her absence.'

If it may be said that the absence of a supervisor or instructor, under the circumstances, was negligence, still such lack of supervision was not the proximate cause of the accident.

Therefore, assuming that there was here the absence of a supervisor or instructor and that such absence constituted negligence, still, under the circumstances, such lack of supervision was not the proximate cause of the accident.

In Foley v. Union Free School Dist. No. 17, Town of Oyster Bay, 2nd Dept., 259 App.Div. 837, 19 N.Y.S.2d 198, the facts are strikingly...

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6 cases
  • Segerman v. Jones
    • United States
    • Maryland Court of Appeals
    • 9 December 1969
    ...infarction as a result of being asked to carry packages of supplies and books, some weighing as much as 65 pounds. Kaufman v. City of New York, 30 Misc.2d 285, 214 N.Y.S.2d 767 (Sup.Ct.N.Y.1961) and Meyer v. Board of Education, 9 N.J. 46, 86 A.2d 761 (1952) are the least helpful of all. In ......
  • Christofides v. Hellenic Eastern Orthodox Christian Church of New York
    • United States
    • New York City Municipal Court
    • 9 May 1962
    ...15 N.Y.S.2d 941, affd. 283 N.Y. 574, 27 N.E.2d 438). The defendant also relies on the Clark case, supra, and on Kaufman v. City of New York, 30 Misc.2d 285, 214 N.Y.S.2d 767. The defendant contends that mere lack of supervision in and of itself does not make the school liable when the act c......
  • Locilento v. John A. Coleman Catholic High School
    • United States
    • New York Supreme Court — Appellate Division
    • 30 December 1987
    ...of injury was greater because of defendants' failure to provide the necessary protective equipment ( cf., Kaufman v. City of New York, 30 Misc.2d 285, 214 N.Y.S.2d 767). Accordingly, Supreme Court properly denied defendants' motion for a directed verdict. Next, defendants argue that since p......
  • Hearl v. Waterbury Young Men's Christian Ass'n
    • United States
    • Connecticut Supreme Court
    • 4 May 1982
    ...not have been a substantial factor in causing the plaintiff's injuries. Similar rulings may be found in Kaufman v. City of New York, 30 Misc.2d 285, 286-87, 214 N.Y.S.2d 767 (1961), where the court found no legal causation in the alleged failure of an instructor at Brooklyn College to be pr......
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