Miller v. Board of Education

249 A.D. 738, 291 N.Y.S. 633, 1936 N.Y. App. Div. LEXIS 5813

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 1936
• Status: Published

Opinion

Actions to recover for damages for personal injuries and for expenses and loss of services due to infant plaintiff’s falling from a gymnasium apparatus called a monkey bar, maintained by the defendant in the yard of the public school which the child attended. Judgments for the plaintiffs reversed on the law, with costs, and the complaints dismissed, with costs. Defendant breached no duty owing to the infant plaintiff that had any causal relation to the accident. General superintendence would not reasonably have been of any avail to avoid the accident. The requirement of specific supervision of the piece of apparatus involved would be unreasonable. (Peterson v. City of New York, 267 N. Y. 204.) No part of the apparatus was in a state of disrepair and the risk of falling from it was one which was assumed by those who made use of it, which possibility was known to the mother in the case at bar. It is common knowledge that children younger than this infant make safe use of this type of apparatus and similar apparatus in school yards and playgrounds. Lazansky, P. J., Hagarty, Carswell, Davis and Taylor, JJ., concur.