Verduce v. Board of Higher Ed., City of New York

• Decision Date: 17 November 1959
• Parties: Rosalie A. VERDUCE and Pasquale Verduce, Plaintiffs-Appellants, v. BOARD OF HIGHER EDUCATION in the CITY OF NEW YORK, Defendant-Respondent. Livingston Welch, as President and Joseph Turnau as Vice-President of the Hunter College Opera Association, and Joseph Turnau, individually, Defendants.
• Court: New York Supreme Court — Appellate Division

Page 913

192 N.Y.S.2d 913

9 A.D.2d 214

Rosalie A. VERDUCE and Pasquale Verduce, Plaintiffs-Appellants, v. BOARD OF HIGHER EDUCATION in the CITY OF NEW YORK,

Defendant-Respondent. Livingston Welch, as President and

Joseph Turnau as Vice-President of the Hunter College Opera

Association, and Joseph Turnau, individually, Defendants.

Supreme Court, Appellate Division, First Department.

Nov. 17, 1959.

Benjamin H. Siff, New York City, of counsel (Lester Lewis Jay, New York City), for appellants.

Alfred Weinstein, New York City, of counsel (Seymour B. Quel and Stanley Katz, New York City, with him on the brief, Charles H. Tenney, Corp. Counsel, New York City), for respondent.

Before BREITEL, J. P., and RABIN, M. M. FRANK, VALENTE and McNALLY, JJ.

McNALLY, Justice.

In an action for personal injuries, loss of services and medical expenses, plaintiffs appeal from the judgment dismissing the complaint. On the trial, the action was discontinued against defendants Welch and Turnau.

Plaintiff Rosalie A. Verduce voluntarily enrolled for a non-credit course denominated the Hunter College Opera Workshop which was conducted under the auspices of the defendant-respondent Board of Higher Education in the City of New York. The group under the direction of the defendant Turnau undertook the performance of the opera 'Xerxes'. During a rehearsal of the opera, the said plaintiff was directed to make a 'haughty' exit without looking down, which involved stepping down twenty inches from the stage to the auditorium floor. In the act of so doing, plaintiff's left foot twisted causing her to sustain the injuries complained of. Prior to stepping down, plaintiff protested that to do so without looking down was dangerous. The defendant Turnau, however, admonished the plaintiff that to look down would constitute a failure to comply with his direction and result in her loss of the role. The loss of the role would not have disqualified the plaintiff from other participation in the workshop. Plaintiffs' evidence establishes the injured plaintiff knew of the physical condition complained of and the risk of injury attendant upon the attempt to step down from the platform to the floor of the auditorium without looking down. Immediately prior to the occurrence, when directed by defendant Turnau to proceed with 'head up', plaintiff remonstrated: 'Professor, I will break my neck', to which Turnau responded: 'Well, you must do this or you will lose the part.' Several weeks prior to the accident, in response to the injured plaintiff's expression of fear of the necessity of stepping from the platform down to the floor without looking down, Turnau said: 'You must not be afraid; it is all right.'

At the close of the plaintiffs' proof, defendant-respondent Board of Higher Education in the City of New York moved to dismiss the complaint for failure to make out a prima facie case, failure of the plaintiffs to establish freedom from contributory negligence, and on the further ground that the injured plaintiff assumed the risk of the condition and accident complained of. After extended argument on the said motion, the learned trial court granted the motion and dismissed the complaint. ^*

We find no factual issue on liability present, and, therefore, conclude the dismissal and judgment thereon are proper. The record demonstrates knowledge on the part of the injured plaintiff of the danger consequent upon stepping down from the platform to the floor of the auditorium and her knowing exposure to the said danger. The said plaintiff did not rely upon the statements of Turnau, which did not carry any assurance that the danger was any less than it appeared. A reasonable person would not rely upon the statements. Utica Mutual Ins. Co. v. Amsterdam Color Works, 284 App.Div. 376, 379, 131 N.Y.S.2d 782, 785, affirmed 308 N.Y. 816, 125 N.E.2d 871. Here is not involved an unanticipated fall. Cf. Zurich General Accident & Liability Ins. Co. v. Childs Co., 253 N.Y. 324, 328, 171 N.E. 391, 392. That which the injured plaintiff anticipated and articulated did, in fact, materialize; her motive to preserve her role in the opera 'Xerxes', although professionally and artistically justifiable, does not legally excuse the failure to exercise reasonable care in regard to her safety.

The judgment should be affirmed, with costs.

Judgment affirmed with costs to the respondent.

Order filed. All concur except BREITEL, J. P., and RABIN, J., who dissent in dissenting opinion by RABIN, J.

RABIN, Justice (dissenting).

In this action for personal injuries the trial court dismissed the complaint after both parties had rested, the defendant having called no witnesses on its behalf. The case turns on the question as to whether there was any issue to be submitted to the jury.

The proof offered by the plaintiff ^* established that prior to the time she came to New York in 1952 she had for some years been studying voice. After her arrival in New York and in furtherance of her musical career she paid tuition for, and joined an opera workshop class which was being offered by defendant Board of Higher Education at Hunter College. As an integral part of the course and designed to give workshop students an opportunity to participate in a full scale production of an operatic work, which they would ultimately publicly perform, the school authorities formed what was called the Hunter College Opera Association. This was not an Association in the legal sense, but was called so to designate that portion of the class participating in the proposed performance. This group was under the direction of Professor Joseph Turnau, an employee of the defendant.

As one of the group, the plaintiff participated in the rehearsals which were being conducted in the auditorium of Hunter High School. The 'stage' consisted of a platform raised about 20"' above the auditorium floor. There were no steps leading from this stage to the floor, the high step-down being often made by the use of a chair or with the assistance of other students in the class. Prior to the fall which gave rise to this suit and on several occasions, the plaintiff, as did other students, complained to Professor Turnau about the danger involved in stepping down from the platform. However there had been no accidents by reason of its use until the plaintiff fell.

At one point during the rehearsals the professor deemed it necessary for the plaintiff to leave the stage in a 'haughty' manner and for that purpose he directed that she hold her head high as she stepped off the platform. When the plaintiff expressed fear of the consequences he gave her the following assurance: 'You must not be afraid, it is all right.' When, on January 19, 1953, the professor again directed her to leave the stage in that manner she stated 'Professor, I will break my neck.' Despite such expressed fear the professor insisted that she follow his instructions stating that she would lose her part in the opera if she failed to do so. She again demurred, but when the professor directed that his instructions be followed, she stepped off, head high, fell and sustained a fracture of the leg.

If the dismissal of the complaint is to be sustained we must find as a matter of law an absence of negligence on the part of defendant or, either contributory negligence or such an assumption of the risk as would preclude recovery by the plaintiff.

Undoubtedly the plaintiff made out a prima facie case of negligence. The professor in making the specific direction to the plaintiff was acting within the scope of his authority and in the course of his employment. It could be found that he should have foreseen the possibility of injuries and therefore, in the circumstances, the giving of the direction was a negligent act particularly in the light of the earlier complaints and the overt physical features of the platform (Broderick v. Cauldwell-Wingate Co., 301 N.Y. 182, 93 N.E.2d 629).

As to whether the plaintiff was guilty of contributory negligence or in the alternative assumed the risk of injury so as to preclude recovery presents a more difficult question.

At the outset it appears that the defense of assumption of risk may not be available to the defendant. This defense unlike that of contributory negligence is one that must be pleaded affirmatively (Dowd v. New York O. & W. Ry. Co., 170 N.Y. 459, 63 N.E. 541; Buckley v. Cunard Steamship Co., 233 App.Div. 361, 253 N.Y.S. 254). There was no such affirmative defense pleaded nor was any motion made by the plaintiff to conform the pleadings to the proof. Accordingly, the dismissal may not rest on that ground.

However, apart from this technical omission the court should not, on the law, have dismissed the complaint on the ground that the plaintiff assumed the risk.

The distinction between contributory negligence and assumption of risk is not always readily discernible. 'Very often the difference is chiefly one of terminology' (McFarlane v. City of Niagara Falls, 247 N.Y. 340-349, 160 N.E. 391, 394, 57 A.L.R. 1). There are areas where, as Judge Cardozo put it in that case '* * * the concept of contributory negligence merges almost imperceptibly into that of acceptance of a risk'. However, a broad line of...