Sinsel v. Lyons

168 A.D.2d 902, 565 N.Y.S.2d 657, 1990 N.Y. App. Div. LEXIS 16420

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1990
• Status: Published

Opinion

Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Plaintiffs appeal from an order granting defendant summary judgment dismissing plaintiffs’ action to recover for injuries sustained by their mentally retarded infant daughter when she ran into defendant’s defective gate. The chain link in the gate had become detached from the top, side and bottom posts on one side and was hanging loose. The child sustained a concussion and a broken neck when she ran into the gate. She struck her head on the top crossbar of the gate, "snapping] her head back” and knocking her off her feet onto her back. In dismissing the complaint, the court held that the defect in the gate was not the cause of the accident.

The court erred in summarily resolving the issue of causation in favor of defendant. The issue is not whether the defect in the gate was the cause of the accident, but whether it might have caused the infant’s injuries in whole or in part. There is a triable question of fact whether the defect in the gate was a substantial factor in bringing about or exacerbating the infant’s injuries. Plaintiffs are entitled to a trial on their claim that, if the gate was in proper repair, the chain link would have cushioned the impact, but that the gap in the gate resulted in the child being "clotheslined” by the top bar of the gate, thus breaking her neck. (Appeal from order of Supreme Court, Erie County, Ostrowski, J. — summary judgment.) Present — Dillon, P. J., Denman, Green, Balio and Davis, JJ.