Rosario by Vasquez v. City of New York

• Citation: 157 A.D.2d 467,549 N.Y.S.2d 661
• Parties: Lisanette ROSARIO, an Infant, by Her Mother Delia VASQUEZ, et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent.
• Decision Date: 09 January 1990
• Court: New York Supreme Court Appellate Division

Page 661

549 N.Y.S.2d 661

157 A.D.2d 467

Lisanette ROSARIO, an Infant, by Her Mother Delia VASQUEZ, et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Jan. 9, 1990.

W. Gardiner, for plaintiffs-appellants.

K.M. Helmers, New York City, for defendant-respondent.

Before ROSS, J.P., and ASCH, ROSENBERGER, SMITH and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, Bronx County (Hansel McGee, J.), entered on September 14, 1988, which granted defendant's motion to dismiss pursuant to CPLR 4401, unanimously reversed, on the law, without costs, the complaint reinstated, and the matter remanded to Supreme Court for a new trial.

On this appeal, we are asked to extend liability to the City of New York for failure to take steps to attenuate injury which resulted, in this instance, from a deliberate act of a third party.

The essential facts are not in dispute. On July 31, 1985, the infant plaintiff, Lisanette Rosario, then seven years old, was taken to a City-owned park at 148th Street between College Street and Morris Avenue in Bronx County as part of a day-camp group operated by Saint Rita's Church, located at 148th Street and College Avenue. As Lisanette climbed the ladder of a slide to join a friend who was waiting for her so that they could go down the slide together, an older girl, by the name of Dina, who apparently wished to climb up ahead of her, tugged at her clothes. As Lisanette stepped off the platform at the top of the slide onto the sliding board and began to sit down, Dina pushed her on the left side of her back. Lisanette fell from a point between five and seven-and-one-half feet above the ground, over the right side of the slide, landing on her outstretched left hand on the asphalt surface of the playground. As she fell, her legs struck her friend, who was seated on the slide in front of her, knocking the youngster off the slide. Lisanette sustained a transverse fracture of the distal portion of the left radius and ulna and a supracondylar fracture of the humerus. She rolled onto her back, and her friend landed on top of her on her stomach, sustaining only a scratch.

The theory upon which recovery is predicated is that the City was negligent in failing to provide a cushioned surface beneath the slide which, it is asserted, may have reduced the severity of the infant plaintiff's injuries. At the close of plaintiffs' direct case, Supreme Court granted defendant's motion to dismiss the action for failure to establish a prima facie case (CPLR 4401). The court stated that the cause of the infant plaintiff's injury was the push by the child, Dina, which resulted in Lisanette's fall from the sliding board. The court concluded that all plaintiffs' expert witnesses had suggested is that "had there been any padding the injury would not have been as severe. Consequently, I'm forced to grant the motion."

The assumption implicit in Supreme Court's ruling, that no liability can be imputed to the City based upon the behavior of the aggressor, Dina, is entirely correct. In order to render a municipality liable for an activity on its property which causes injury, the activity must be ultrahazardous and the City must have actual or constructive notice thereof (Rhabb v. New York City Hous. Auth., 41 N.Y.2d 200, 202, 391 N.Y.S.2d 540, 359 N.E.2d 1335; Caldwell v. Village of Is. Park, 304 N.Y. 268, 275, 107 N.E.2d 441). Thus, where a neighborhood block association complained of fireworks being detonated, rubbish thrown and papers set on fire in a playground over a two-month period, the municipality was found liable to an infant who sustained the loss of an eye when struck by an exploding firecracker (Nicholson v. Board of Educ. of the City of New York, 36 N.Y.2d 798, 369 N.Y.S.2d 703, 330 N.E.2d 651). Likewise, the State was found liable for the death of a pedestrian struck by a bicyclist taking part in a time trial held on the State Office Building Campus in Albany, an activity which the State permitted to take place several times a week (O'Connor v. State of New York, 70 N.Y.2d 914, 524 N.Y.S.2d 391, 519 N.E.2d 302). However, bicycle riding on a busy park promenade in violation of a City regulation does not constitute ultrahazardous and criminal activity for which the municipality may be cast in damages (Solomon v. City of New York, 66 N.Y.2d 1026, 499 N.Y.S.2d 392, 489 N.E.2d 1294), nor do rubbish fires in a lot where children routinely play (Benjamin v. City of New York, 99 A.D.2d 995, 473 N.Y.S.2d 450, affd. 64 N.Y.2d 44, 484 N.Y.S.2d 525, 473 N.E.2d 753).

In the matter under review, it cannot be said that the dangerous and aggressive conduct of the ten-year-old Dina remotely approaches the standard for imposition of liability on the City, viz., "ultrahazardous and criminal activity of which it has knowledge" (Solomon v. City of New York, supra, 66 N.Y.2d at 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294). It is well settled that the City is under no duty to provide immediate supervision of playground equipment (Peterson v. City of New York, 267 N.Y. 204, 206, 196 N.E. 27; see also, Nicholson v. Board of Educ. of the City of New York, supra, 36 N.Y.2d at 802, 369 N.Y.S.2d 703, 330 N.E.2d 651), a duty which, in any event, had been affirmatively undertaken by staff members of Saint Rita's Day Camp. Nor is there a contention that the slide itself was in any way defective. Questions remain, however, whether the City breached a standard of care to protect children from injury due to falls by installing a cushioned surface around playground equipment and whether Supreme Court was correct in its (again) implicit assumption that the act of shoving the infant plaintiff by the child, Dina, constitutes an intervening agency so as to interrupt the chain of causation which follows from the breach of that asserted duty.

The second question is easier to answer than the first. If it is accepted, arguendo, that there is a duty to provide a padded surface, that duty subsumes the acknowledgment that a fall, from whatever cause, is a likely occurrence. Moreover, if the intervening agency, in this case a push from another child, is itself a foreseeable hazard, a finding of proximate cause is entirely appropriate. As one authority expressed the principle, "once it is determined that the defendant's duty requires him to anticipate the intervening misconduct, and guard against it, it follows that it cannot supersede his liability" (Prosser, Torts [4th ed], § 44, at p 275; see, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451). If plaintiffs' evidence is sufficient to establish a duty on the part of the City to reduce injury from falls, then the occurrence of a foreseeable event, such as a push from another child, will not preclude a finding of liability for a breach of that duty.

The question of...