Turano v. City of New York

• Decision Date: 08 November 1962
• Citation: 233 N.Y.S.2d 330,17 A.D.2d 191
• Parties: Joseph TURANO, Jr., an infant under 14 years of age, by Joseph Turano, his guardian ad litem, and Joseph Turano, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 330

233 N.Y.S.2d 330

17 A.D.2d 191

Joseph TURANO, Jr., an infant under 14 years of age, by Joseph Turano, his guardian ad litem, and Joseph Turano, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Nov. 8, 1962.

Max Toberoff, New York City, for appellants.

John A. Murray, New York City, of counsel (Seymour B. Quel, New York City, with him on the brief; Leo A. Larkin, Corp. Counsel, attorney), for respondent.

Before RABIN, J. P., and VALENTE, McNALLY, STEVENS and STEUER, JJ.

RABIN, Justice.

The plaintiff appeals from a judgment entered April 30, 1962 dismissing the complaint at the end of the entire case on the ground that the plaintiff failed to prove actionable negligence. The defendant rested without offering proof.

On November 4, 1958, the date of the accident, the plaintiff, who was seven years of age, together with several companions went to a public playground to play stickball. Despite the fact that there was a 'no ball playing' sign posted, there is no denial of the plaintiff's testimony that he and his companions received permission to play stickball from defendant's employee on duty. Although this employee held the title of Assistant Gardener and apparently had no special training as a recreational leader he had the duty, among others, of supervising the playground. During the game the plaintiff, who was playing 'catcher' was struck in the eye by the stick swung by his playmate, who was the batter. At the time of the occurrence the employee was absent from the playground.

The plaintiff contends that the City is liable because of the failure to provide proper supervision at the time the game was played. He also contends that there is liability on the part of the City for allowing the stickball game to be played in an area where such activity is expressly prohibited.

We conclude that the failure to supervise occasioned by the absence of the defendant's employee was not the proximate cause of the injury to the plaintiff. Even had the attendant, or indeed a well-trained recreational leader, been present at the time of play it is unreasonable to conclude that the accident could have been avoided. While a recreational leader could supervise play generally he could not possibly control every single spontaneous act of the participants during the game. A swing, such as the one that caused the injury, could not have been foreseen in advance or have been prevented by the supervisor.

Of course, if the physical layout of the playground were such as to compel the catcher to assume a position too close to the arc of the swinging stick, we might come to a different conclusion. Under such conditions it could well be argued that to sanction the game would be to permit the infant plaintiff to be placed in a position of imminent and special peril as opposed to the normal risks...