McGinn v. Shelter Island Heights Ass'n

260 A.D. 938, 23 N.Y.S.2d 336, 1940 N.Y. App. Div. LEXIS 5545

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1940
• Status: Published

Opinion

Action to recover damages for personal injuries on the theory of nuisance created and maintained by the defendant, and of negligence, based on the maintaining of the condition of which plaintiff complains. Judgment dismissing the complaint unanimously affirmed, with costs. The plaintiff had parked her car alongside a platform leading to an entrance into the defendant’s hotel. Beyond the extreme edge of the platform was a gulley or drainage ditch. The car was parked in such a position that its running board was adjacent tó and about on a level with the platform. The hood of the car extended beyond the platform in the direction of the gulley or drainage trench. Plaintiff, having emerged from and entered the car from the platform in perfect safety within a few minutes prior to the accident, again opened the door of the car, put her left foot on the running board, braced herself with her right hand on the door jamb and reached in for a key in the ignition. With her right foot she then “ stepped into thin air ” and landed in the ditch. The fall into the ditch obviously was due to her losing her balance. Whether this was due to her voluntary movements or due to some other cause is of no controlling importance in the absence of proof that the condition was a dangerous one or that there had been prior accidents. Apparently the fall was caused solely by the plaintiff’s own actions and conduct which had no necessary relation to the condition of which plaintiff complains. The complaint was properly dismissed. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ.