Nelson v. Cafe Wienecke, Inc.

Appellate Division of the Supreme Court of New York

Nelson v. Cafe Wienecke, Inc.

18 A.D.2d 392, 239 N.Y.S.2d 693, 1963 N.Y. App. Div. LEXIS 3840

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 30, 1963

StatusPublished

This text of 18 A.D.2d 392 (Nelson v. Cafe Wienecke, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nelson v. Cafe Wienecke, Inc., 18 A.D.2d 392, 239 N.Y.S.2d 693, 1963 N.Y. App. Div. LEXIS 3840 (N.Y. Ct. App. 1963).

Pincite

Opinions

Per Curiam.

Plaintiff was a patron in defendant’s café. While doing the samba on the dance floor, her partner swung [393]*393her around, she went off the edge of the dance floor, and in some manner that she is unable to describe more fully, her “ heel went down and something gave way, and I tripped and I lost my balance.” At the moment, plaintiff was moving backward and her heel went off the dance floor. She claims that the dance floor presented a dangerous condition in that the floor was some three quarters of an inch above the surrounding floor and the edge was not bevelled. Admittedly the surface of the dance floor was about the distance claimed above the surrounding floor, but defendant claims the edge was bevelled. The controversy is of no significance because there is no way in which the nature of the edge could have affected the accident.

We fail to see that the facts proved showed any negligence on the part of the defendant. The limits of the dance floor were clearly marked by a difference in color between its surface and that of the surrounding floor. Moreover, there were tables in very close proximity to the edge. There was no showing that the slight elevation of the floor itself was in any way unusual. There was no proof of prior accidents or any factor to show that this constituted a condition that the defendant in the exercise of reasonable prudence should have recognized as a source of danger. Plaintiff was wearing slippers with a three and a-half-inch heel. It is quite clear that the accident resulted from the performance of the maneuver in the dance at the place where it was attempted; and the resulting lack of control was, doubtless, contributed to by the nature of plaintiff’s footwear. The situation parallels that of the risk taken by a participant in a sport, and is unactionable. While it is doubtful that the construction caused plaintiff’s fall, even if it did the construction did not constitute a condition of foreseeable danger to one using the floor with due care.

The judgment should be reversed on the law and the facts, with costs and the complaint dismissed.

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Per Curiam.

Plaintiff was a patron in defendant’s café. While doing the samba on the dance floor, her partner swung [393]*393her around, she went off the edge of the dance floor, and in some manner that she is unable to describe more fully, her “ heel went down and something gave way, and I tripped and I lost my balance.” At the moment, plaintiff was moving backward and her heel went off the dance floor. She claims that the dance floor presented a dangerous condition in that the floor was some three quarters of an inch above the surrounding floor and the edge was not bevelled. Admittedly the surface of the dance floor was about the distance claimed above the surrounding floor, but defendant claims the edge was bevelled. The controversy is of no significance because there is no way in which the nature of the edge could have affected the accident.

We fail to see that the facts proved showed any negligence on the part of the defendant. The limits of the dance floor were clearly marked by a difference in color between its surface and that of the surrounding floor. Moreover, there were tables in very close proximity to the edge. There was no showing that the slight elevation of the floor itself was in any way unusual. There was no proof of prior accidents or any factor to show that this constituted a condition that the defendant in the exercise of reasonable prudence should have recognized as a source of danger. Plaintiff was wearing slippers with a three and a-half-inch heel. It is quite clear that the accident resulted from the performance of the maneuver in the dance at the place where it was attempted; and the resulting lack of control was, doubtless, contributed to by the nature of plaintiff’s footwear. The situation parallels that of the risk taken by a participant in a sport, and is unactionable. While it is doubtful that the construction caused plaintiff’s fall, even if it did the construction did not constitute a condition of foreseeable danger to one using the floor with due care.

The judgment should be reversed on the law and the facts, with costs and the complaint dismissed.

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Bluebook (online)

18 A.D.2d 392, 239 N.Y.S.2d 693, 1963 N.Y. App. Div. LEXIS 3840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-cafe-wienecke-inc-nyappdiv-1963.