Thursday, May 22, 2014

The effectiveness of a notice of claim in a playground accident.

Practice point:  The Appellate Division affirmed the denial of the motion to dismiss the claim that the playground equipment was inherently dangerous. While the notice of claim may not have expressly stated that the playground disc from which the infant fell had a defective design, the complaint alleged that the infant plaintiff's injury was caused by "the dangerous, defective and unsafe condition" posed by the disc, "including but not limited to lack of supervision, lack of control, lack of guidance and lack of instruction." This was enough to put the defendant on notice that part of plaintiffs' theory was that the disc itself was defective. What is more, it could be inferred that plaintiffs were alleging that the disc was defective based on the the allegation that the disc's excessive speed caused plaintiff to be ejected from it.

It is irrelevant that plaintiff's expert inspected the disc five years after the accident, because the condition on which he opined was unlikely to have changed in the intervening period of time.

Student note:  The Court distinguished this case from others in which the theories of liability introduced by the plaintiffs were wholly independent of the theories alleged in the notices of claim.

Case:  Jiminez v. City of New York, NY Slip Op 03585 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal of a slip and fall claim.