McGill v. 39 Casino Street Corp.

16 A.D.2d 832, 229 N.Y.S.2d 26, 1962 N.Y. App. Div. LEXIS 9460

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1962
• Status: Published

Opinion

In a negligence action by the infant plaintiff to recover damages for personal injuries and by her father to recover damages for medical expenses and for loss of services, the defendants appeal from a judgment of the Supreme Court, Nassau County, entered July 19, 1961, upon the decision of the court after a non jury trial, in favor of the plaintiffs and against the defendants. The accident occurred in a children’s play area adjacent to a swimming pool, both of which were owned and operated by the defendants. The infant plaintiff was injured by falling to the ground from a horizontal ladder or "monkey bar” while hanging therefrom by her hands. Judgment reversed on the law and the facts, without costs, and complaint dismissed. The findings of fact numbered “ Tenth ” and “ Fourteenth,” contained in the formal court findings, are reversed; and contrary findings are hereby made. New or additional findings as stated below are also hereby made. Plaintiffs failed to make out a prima facie case. We find there was no competent proof adduced (1) that the apparatus involved was unsuitable for children of the. infant plaintiff's age, or (2) that the concrete, surface upon which she. fell constituted an unsafe and dangerous condition for which defendants should be cast in damages (Miller v. Board of Educ., Union Free School Dist. No. 1, 249 App. Div. 738; Cordaro v. Union Free School Dist. No. 22,14 A D 2d 804). Beldock, P. J., Kleinfeld, Christ, Brennan and Rabin, JJ., concur.