Berwick v. Board of Education

248 A.D. 769

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1936
• Status: Published

Opinion

The infant plaintiff, six years of age, was injured when she stumbled and fell into an areaway eighteen inches deep by the school building. She was challenged to jump by a playmate, and in attempting to make the jump fell. The accident occurred during a vacation period while children were playing under supervision on a playground some little distance away. The plaintiff, with her sister, started to go home at about noon, when they went to the toilet in the basement and the accident occurred. The areaway was adjacent to windows of a classroom and was constructed for the purpose of furnishing light and air. The plans had been approved by the board of education of the city and by the State Commissioner, as the law prescribed. There was similar construction in the city, and there had never been an accident. There was no proof that these plans were defective or that there was any inherent danger in such construction. Order setting aside verdicts for plaintiffs in an action for negligence and dismissing the complaint on a reserved motion, and the judgment for defendant entered thereon, affirmed, with costs. Hagarty, Davis and Adel, JJ., concur; Lazansky, P. J., and Taylor, J., dissent and vote for reversal of the order and judgment and reinstatement of the verdicts, with the following memorandum: The child was hurt because she tripped on the part of the concrete next the dirt. If the pavement had been continued or the dirt raised up to the concrete about the areaway, the accident would not have happened. The jury was justified in finding a defect in construction and maintenance, for which the defendant is liable.