Thursday, May 8, 2014

Summary judgment in an action based on a playground fall.

Practice point:  The Appellate Division reversed the granting of summary judgment in this action where the infant plaintiff injured his shoulder when, while playing football during recess in defendants' school playground, he tripped over a crack in the pavement and fell to the ground. Plaintiff submitted evidence, including photographs of the playground, sufficient to raise triable issues as to whether the subject crack had been present for a sufficient period time to give rise to constructive notice.

Student note: Defendants submitted their employee's testimony and the accident report showing that the infant plaintiff did not initially identify the cause of his accident, and so they established an absence of proximate causation between their alleged negligent maintenance of the premises and the accident. However,  the infant plaintiff's affidavit stating that he tripped and fell on the crack while playing football was enough to raise an issue of the connection between the accident to the defect.

Case: Pagan v. City of New York, NY Slip Op 03017 (1st Dept. 2014)

Here is the decision. 

Tomorrow's issue:  Successive motions for summary judgment, and certificates of conformity.