Nessinger v. Ontario County Agricultural Society

3 A.D.2d 971, 162 N.Y.S.2d 266, 1957 N.Y. App. Div. LEXIS 5571

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1957
• Status: Published

Opinions

Appeals from judgments of the Supreme Court in favor of plaintiffs, entered December 14, 1955, in Ontario County, upon verdicts rendered at a Trial Term. Appeals by defendants Ontario County Agricultural Society and Geneva Awning & Tent Co. from an order of said court, entered December 14, 1955, which (1) denied motions by defendants for orders setting aside the verdicts and dismissing the complaints and (2) denied a motion by defendant Ontario County Agricultural Society for an order dismissing the complaints for failure to comply with section 50-e of the General Municipal Law.

Memorandum by the Court. The infant plaintiff was injured while attending a county fair of the defendant Ontario County Agricultural Society. He was struck on the back o£ the head by some object the nature of which was not clear, causing serious and permanent injuries. In any event, the accident was the result of a phenomenal, unusual and sudden windstorm of great velocity and severity, and not as the result of negligence of any of the defendants. The storm caused serious damage to a portion of the small area used for the fair. There is nothing in the record to show substantial damage anywhere outside of the fair area. The high velocity of the wind and its turbulence commenced suddenly and without warning, continued for a brief period and subsided quickly. It was a freak storm which could not have been anticipated, foreseen, or guarded against in the exercise of reasonable care and caution. Any lack of diligence or care that there may have been on the part of any defendant was not the proximate cause of the injury, which resulted solely from this abnormal, unexpected and highly unusual occurrence. The complaint should be dismissed on the merits.