Opinion
March 8, 1976
In a negligence action to recover damages for personal injuries, plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County, entered May 5, 1975, as dismissed the complaint against the defendant Board of Education of the City of New York, at the close of the evidence, at a jury trial limited to the issue of liability. Judgment reversed insofar as appealed from, on the law, and, as between plaintiff and the defendant board of education, action severed and new trial granted, with costs to abide the event. No fact findings were presented for review. Upon entering P.S. 204 on January 8, 1969, the then 11-year-old plaintiff opened the door and held it open with his left hand while attempting to determine whether his friend (who had been following him) would also be coming in. The door slammed shut, injuring plaintiff's finger. The evidence indicates that the finger was injured because it was caught in the area between the door jamb and the hinge side of the door. This was a public school; the doors were subject to heavy use by school children. Although there was a door check device installed to slow the closing of the door and to prevent it from slamming shut, plaintiff adduced evidence (which was disputed by the board) that the door check was defective and that the board had actual and constructive notice thereof. In our opinion plaintiff made out a prima facie case. The board's evidence merely created issues of fact; the case should have been submitted to the jury. We distinguish this case from Rosen v Bronx Hosp. ( 308 N.Y. 925) on the ground that, at bar, the accident site was a school. Accidents caused by swinging, slamming doors used by school children might well be foreseeable (witness the door check precaution) and here the victim was using the door as a door (cf. Rosen v Bronx Hosp., supra; see, also, Robinson v City of New York, 50 A.D.2d 915). We concede that there is a serious question as to whether the board had the duty to foresee that a school child would hold the door open in such a manner that his finger would be caught between the door jamb and the hinge edge of the door should the door check device malfunction. However, under all of the circumstances, that, along with the other issues in this case, are questions for the jury (see McGuigan v State of New York, 38 A.D.2d 783; O'Rourke v Namm Son, 295 N.Y. 983; Rossman v La Grega, 28 N.Y.2d 300, 306). Cohalan, Acting P.J., Margett, Damiani, Rabin and Hawkins, JJ., concur.