Nichter v. City of Buffalo

74 A.D.2d 996, 427 N.Y.S.2d 101, 1980 N.Y. App. Div. LEXIS 10814

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 28, 1980
• Status: Published

Opinion

Order unanimously reversed, without costs, motion granted and complaint dismissed. Memorandum: Defendant, City of Buffalo, appeals from a judgment after a jury trial in a negligence case. Infant plaintiff, then six years old, was injured on May 24, 1972 while using a "baby swing” in the city’s Rees Street playground when she attempted to stand up in the swing and fell off. No defect in the swing, in any other equipment, or in the premises was alleged or proven. The only theory for recovery stated in the complaint and the bill of particulars and submitted to the jury in the court’s charge, was that the city was negligent in permitting the public to enter the playground and to use the facilities and in particular, the swing, without providing supervision. The court erred in denying defendant’s motion for a nonsuit and its posttrial motion to set aside the verdict. While it is a settled rule that a city has a duty of general supervision of its playgrounds which it holds open to the public (see Caldwell v Village of Island Park, 304 NY 268, 273-275), it need not provide the specific and immediate supervision of playground facilities which would have been required, under the circumstances here, to prevent the infant plaintiff from falling from the swing (see Peterson v City of New York, 267 NY 204, 206; Saracino v City of New York, 30 AD2d 853, affd 23 NY2d 938). Even if it be assumed that defendant failed in its duty to furnish general superintendence, there is no evidence that such failure could have been the proximate cause of infant plaintiff’s injuries (see Diaz v City of New York, 25 AD2d 430, affd 23 NY2d 748). (Appeal from order of Erie Supreme Court — set aside verdict.) Present — Simons, J. P., Hancock, Jr., Callahan, Witmer and Moule, JJ.