Mix v. South Seneca Central School District

197 A.D.2d 855, 602 N.Y.S.2d 467

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1993
• Status: Published

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendants’ motion for summary judgment. Plaintiff commenced this action for injuries sustained by her infant daughter on August 9, 1991 while she was playing on the playground at defendants’ elementary school. The incident occurred while the school was not in session and resulted from another child throwing a screwdriver that struck plaintiffs daughter in the right eye. The screwdriver was not the property of defendants and there is no evidence establishing how long it had been on the playground. Plaintiffs sole contention is that defendants were negligent in their inspection and maintenance of the school playground.

Because defendants did not create the condition, and because plaintiff failed to show that defendants had actual or constructive notice of the condition that caused the injuries, a prima facie case of negligence was not established to defeat defendants’ motion (see generally, 1A Warren, New York Negligence, Actionable Negligence, §§9.01, 9.02 [2d ed]). In addition, it is axiomatic that "[a]n intervening act will be deemed a superseding cause and will serve to relieve [the] defendant of liability when the act is of such an extraordinary nature or so attenuates [the] defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant” (Kush v City of Buffalo, 59 NY2d 26, 33). Here, the throwing of the screwdriver by another infant constituted a superseding cause that relieved defendants of any liability (see, Elardo v Town of Oyster Bay, 176 AD2d 912, 914; Hessner v LaPorte, 171 AD2d 999, 1000; O’Britis v Peninsula Golf Course, 143 AD2d 123, 125-126; Crossen v Board of Educ., 45 AD2d 952, 953). (Appeal from Order of Supreme Court, Seneca County, Falvey, J.—Summary Judgment.) Present—Callahan, J. P., Pine, Lawton, Doerr and Davis, JJ.