Nicholson v. Board of Ed. of City of New York

• Decision Date: 04 February 1974
• Citation: 351 N.Y.S.2d 731,43 A.D.2d 945
• Parties: Brian NICHOLSON, etc., Respondent, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 731

351 N.Y.S.2d 731

43 A.D.2d 945

Brian NICHOLSON, etc., Respondent, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 4, 1974.

Before GULLOTTA, P.J., and HOPKINS, SHAPIRO, MUNDER and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for loss of an eye, defendant appeals from a judgment of the Supreme Court, Kings County, entered May 19, 1972, in favor of plaintiff, upon a jury verdict of $210,000.

Judgment reversed, on the law, and new trial granted upon the issue of damages only, with costs to abide the event, unless, within 30 days after entry of the order to be made hereon, plaintiff shall serve and file in the office of the clerk of the trial court a written stipulation consenting to reduce the verdict to $160,000 and to the entry of an amended judgment accordingly, in which event the judgment, as so reduced and amended, is affirmed, without costs. The court has considered the questions of fact and has determined that it would not grant a new trial upon those questions.

In our opinion the verdict was excessive to the extent indicated herein.

GULOTTA, P.J., and HOPKINS, SHAPIRO and MUNDER, JJ., concur.

MARTUSCELLO, J., dissents and votes to reverse the judgment and dismiss the complaint, with the following memorandum:

Plaintiff, Brian Nicholson, 7 1/2 years of age at the time of the events under review, went to his neighborhood school yard at approximately 3:45 P.M. on Friday, June 7, 1968. While he was sitting alone in the yard, his name was called by one of about 10 children in the yard, all 13 to 14 years of age. Little Brian turned toward his caller and was struck in the left eye by an exploding firecracker. His father took him to a hospital and shortly thereafter the badly damaged eye was surgically removed.

It is undisputed that the school yard was without gates for a number of years. However, there was also testimony that even when there were gates the yard was kept open after school hours. The purpose, it seems, of the defendant Board of Education in keeping the yard open to the children of the neighborhood was to keep them off the streets. No supervision was attempted and no organized play was developed. Under such circumstances, no duty may be imposed upon defendant to provide supervision over the playground users (Bennett v. Board of Educ. of City of N.Y., 16 A.D.2d 651, 226 N.Y.S.2d 593, affd. 13 N.Y.2d 1104, 246...