Shaw v. Fairyland at Harvey's, Inc.

26 A.D.2d 576, 271 N.Y.S.2d 70, 1966 N.Y. App. Div. LEXIS 3957

Opinion

In an action to recover damages for personal injuries and for wrongful death resulting from the overturning of the gondola of a ferris wheel, precipitating therefrom the two adult plaintiffs and their infant daughter, plaintiffs appeal from so much of an order of the Supreme Court, Suffolk County, entered March 8, 1965, as granted defendants’ motion to dismiss with prejudice the sixth through tenth causes of action on the ground of failure to state a cause of action. Order affirmed insofar as appealed from, with $10 costs and disbursements. Implied warranty of fitness is restricted as a basis of liability to the manufacture, sale or transfer of objects as distinguished from an abstract right to occupy an amusement device. The exclusive duty of the owner and operator of the ferris wheel was to exercise due care (see cases collated in Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432, 438, 439, 442). Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur. [45 Misc 2d 493.]