Miller v. Bd. of Educ., Union Free Sch., Dist. No. 1, of Town of Albion

• Decision Date: 20 July 1943
• Citation: 50 N.E.2d 529,291 N.Y. 25
• Parties: MILLER v. BOARD OF EDUCATION, UNION FREE SCHOOL, DIST. NO. 1, OF TOWN OF ALBION, et al. (two cases).
• Court: New York Court of Appeals Court of Appeals

291 N.Y. 25

50 N.E.2d 529

MILLER

v.BOARD OF EDUCATION, UNION FREE SCHOOL, DIST. NO. 1, OF TOWN OF ALBION, et al. (two cases).

Court of Appeals of New York.

July 20, 1943.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Separate actions by Robert D. Miller, an infant, by Elwood R. Miller, his guardian ad litem, and by his father, Elwood R. Miller, against the Board of Education, Union Free School, District No. 1, of Town of Albion, and others for personal injuries sustained when the infant plaintiff fell while playing on a fire escape in a school building. A motion to dismiss as to defendant Frances Grinnel was granted. Decision was reserved on a motion in each case for direction of a verdict as to defendants Board of Education and Carrie P. Pratt and specific questions were submitted to jury, which absolved defendant Pratt from any liability but found defendant Board of Education negligent and fixed the damages in favor of each plaintiff. Plaintiff's motions for direction of verdict against defendant Board of Education in accordance with jury's findings and to set aside the findings of jury as to defendant Pratt were denied. A motion of the Board of Education made in each case to set aside specific finding that it was negligent and for direction of a verdict in favor of defendant Pratt upon jury's finding in her favor was granted. From a judgment in each case of the Appellate Division, 265 App.Div. 905, 38 N.Y.S.2d 571, entered November 23, 1942, affirming by a divided court, 265 App.Div. 905, 38 N.Y.S.2d 571, a judgment in favor of the defendants Carrie P. Pratt and Board of Education, entered upon verdicts directed by the court at Trial Term, Larkin, J., presiding, plaintiffs appeal.

Judgments as to defendant Pratt affirmed, and judgments as to defendant Board of Education reversed and a new trial granted.

LEHMAN, C. J., and LOUGHRAN, J., dissenting. William J. Darch and George W. Watson, both of Batavia, for appellants.

George J. Nier, of Rochester, for respondents.

CONWAY, Judge.

These actions were brought by the infant plaintiff (hereinafter called plaintiff) and his father to recover damages for personal injuries sustained when the plaintiff fell while playing on a fire escape in a school building. We are concerned here with two defendants: the Board of Education, Union Free School, District No. 1 of Town of Albion, and Carrie P. Pratt.

The infant plaintiff is six years of age. At noon recess he and his older sister, together with other children, ate their lunch in a room in the school building. After the lunch, Carrie P. Pratt (teacher in charge of the school) told the children, who numbered about twenty-five, to go outside to play. On the playground there was a fire escape, enclosed in wire mesh, the door of which was open by reason of its defective condition. That was in violation of Education Law, sections 453 and 868, subdivisions 3 and 9, Consol.Laws, c. 16. The infant plaintiff entered upon the fire escape and sustained serious injuries by reason of a fall thereon.

When the infant plaintiff and the other children were sent out to play, no teacher was sent with them. The defendant Pratt had been instructed by the Superintendent of Schools to supervise the noon play of the children and that she did by watching them from windows, in a hall, which gave a view of a portion of the playground. There were windows through which one could see that portion of the playground where the defective fire escape door was located. Those windows, however, were in a grade room which was locked. There was thus no supervision of the children at all when they were at the place where the accident occurred.

The court submitted certain questions to the jury. One of them was: ‘Was the Board of Education negligent in the repair of the door?’ The court charged the jury that in order to answer that question in the affirmative it would have to find: (1) that the door was out of repair, (2) that the lack of repair existed long enough so that the Board had notice or should have known of the condition, (3) that by reason of the door being open children were attracted by the fire escape as a place to play, (4) that it was a dangerous place for them to play and (5) that such an accident as happened to plaintiff was one which reasonably prudent members of the Board would anticipate as likely to happen. The jury thereupon answered the question, namely, ‘Was the Board of Education negligent in the repair of the door?’ in the affirmative.

The court also submitted the question ‘Was the Board of Education negligent in failing to provide proper supervision?’ and then charged that in order to answer that question in the affirmative the jury would have to find (a) that the door had been allowed to be open frequently over a long enough period so that the Board ought to have known of it, (b) that the Board knew children were playing on that fire escape, (c) that it was a dangerous place for children to play and (d) that such an accident was likely to happen if children played there. The court then charged that if the jury found all of those facts it was for it to say whether or not the supervision which the Board did attempt was adequate. The jury answered the question thus submitted in the affirmative.

At the same time the jury answered another question, ‘Was the defendant, Carrie P. Pratt, negligent?’ in the negative.

Thereafter the trial court granted the motion of the Board to set aside the findings of the jury charging it with negligence on the ground that there was no evidence to sustain those findings and granted the motion of the Board ‘for a general verdict by direction of the Court for no cause of action, upon which decision was reserved.’ The trial court also denied plaintiff's motion ‘to set aside the finding of the jury absolving the defendant Carrie P. Pratt of negligence’ and granted the motion of defendant Pratt ‘for a general verdict of no cause of action, in accord with the jury's answer’ to the question: ‘Was the defendant, Carrie P. Pratt, negligent?’ It should be added that the jury in answer to another question submitted to it, found that the infant was not negligent.

There was evidence from which a jury could have found that the Board had been negligent in permitting the door of the fire escape to remain in a defective and dangerous condition, after notice, and that the defective and dangerous condition was the proximate cause of the accident. Education Law, ss 453, 868, subds. 3. 9; Lessin v. Board of Education of City of New York, 248 N.Y. 503,161 N.E. 160;Popow v. Central School District No. 1 of Town of Hillsdale, 251 App.Div. 906, 297 N.Y.S. 205, affirmed 277 N.Y. 538, 13 N.E.2d 463.

‘Where the defendant has by his conduct set in motion forces which would not have resulted in harm to another but for the failure of a third person to act or perform some duty which the law imposes upon him the failure on the part of such third person to perform the act does not break the causal relation between the defendant's conduct and the plaintiff's damage.’ Harper on Torts, s 115, p. 264. To the same effect, American Law Institute, Restatement of the Law of Torts (Negligence) ss 431, 432, 433, 452. See, also, Carlock v. Westchester Lighting Co., 268 N.Y. 345, 197 N.E. 306, and American Law Institute, Restatement of...