Fahy v. Board of Education

Appellate Division of the Supreme Court of New York

Fahy v. Board of Education

2 A.D.2d 598, 157 N.Y.S.2d 209, 1956 N.Y. App. Div. LEXIS 3578

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 11, 1956

StatusPublished

This text of 2 A.D.2d 598 (Fahy v. Board of Education) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fahy v. Board of Education, 2 A.D.2d 598, 157 N.Y.S.2d 209, 1956 N.Y. App. Div. LEXIS 3578 (N.Y. Ct. App. 1956).

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Opinion

Per Curiam.

The claim of plaintiff at the first trial and on which he recovered a verdict was that he had climbed to the top of a retaining wall, slipped and fell on a spike fence below. While this court reversed the judgment (286 App. Div. 1001) upon grounds immaterial to this appeal, a new trial was directed to allow the plaintiff to show that the playground conditions were dangerous and that defendant had sufficient knowledge of the condition to be liable for an accident happening as plaintiff described the event. The factual showing on the second trial was considerably different. It now appears that plaintiff never reached the top of the retaining wall, but was on a lower ledge and that he neither slipped nor fell but that in getting down by the use of a stairway bannister he sat upon the spikes of the fence which lined the stairway.

We think that the defendant could not be expected to anticipate this conduct on plaintiff’s part or the mishap which ensued. We cannot see that the evidence established any dangerous condition which was the cause of plaintiff’s injury. Accordingly, the judgment should be reversed and the complaint dismissed, with costs to appellant.

Peck, P. J., Breitel, Cox, Frank and Valente, JJ., concur.

Judgment unanimously reversed, with costs to the appellant, the complaint dismissed, and judgment is directed to be entered in favor of the defendant dismissing the complaint herein, with costs.

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Per Curiam.

The claim of plaintiff at the first trial and on which he recovered a verdict was that he had climbed to the top of a retaining wall, slipped and fell on a spike fence below. While this court reversed the judgment (286 App. Div. 1001) upon grounds immaterial to this appeal, a new trial was directed to allow the plaintiff to show that the playground conditions were dangerous and that defendant had sufficient knowledge of the condition to be liable for an accident happening as plaintiff described the event. The factual showing on the second trial was considerably different. It now appears that plaintiff never reached the top of the retaining wall, but was on a lower ledge and that he neither slipped nor fell but that in getting down by the use of a stairway bannister he sat upon the spikes of the fence which lined the stairway.

We think that the defendant could not be expected to anticipate this conduct on plaintiff’s part or the mishap which ensued. We cannot see that the evidence established any dangerous condition which was the cause of plaintiff’s injury. Accordingly, the judgment should be reversed and the complaint dismissed, with costs to appellant.

Peck, P. J., Breitel, Cox, Frank and Valente, JJ., concur.

Judgment unanimously reversed, with costs to the appellant, the complaint dismissed, and judgment is directed to be entered in favor of the defendant dismissing the complaint herein, with costs.

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Bluebook (online)

2 A.D.2d 598, 157 N.Y.S.2d 209, 1956 N.Y. App. Div. LEXIS 3578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fahy-v-board-of-education-nyappdiv-1956.