Lathem v. Double E. of Yonkers, Inc.

53 A.D.2d 921, 385 N.Y.S.2d 810, 1976 N.Y. App. Div. LEXIS 15702

Opinion

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Kings County, entered January 27, 1975, which dismissed the complaint at the end of their case, at a jury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. No findings of fact were presented for review. Two eight-year-old girls in a supermarket had to use the ladies’ room. An employee directed them to a staircase, but did not supervise them. The girls found a conveyer belt which was not fenced off near the staircase. They decided to take the "fun way” upstairs, got on the belt, started it, and rode to the next floor, at which point the infant plaintiff slipped when she tried to jump off, thereby injuring herself. These facts state a cause of action for negligence in failing to protect youngsters from a potentially dangerous conveyor belt. Proximate cause is sufficiently established, applying the criteria set forth in the case of Pagan v Goldberger (51 AD2d 508). In particular, such an accident could result from a foreseeable misuse of the conveyor belt. Hopkins, Acting P. J., Margett, Damiani, Titone and Hawkins, JJ., concur.