Opinion
2003-1491 KC.
Decided July 6, 2004.
Appeal by defendant from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered August 14, 2003, denying defendant's motion for summary judgment.
Order unanimously affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
In this personal injury action, plaintiff alleged that Malekeyah Ligon (Ligon) was injured while playing on a swing set on defendant's property when, while trying to execute a back flip, he fell from the swing onto a slab of rock or concrete beneath the swing set, breaking his arm. Defendant moved for summary judgment on the ground that Ligon's reckless behavior was the sole and superseding cause of the accident.
In opposition to defendant's motion, plaintiff introduced photographs, authenticated at Ligon's deposition, showing a readily visible rock or slab of concrete of significant size directly below the swing. Defendant's own evidence showed that Ligon broke his arm when it hit the rock or slab. The court below denied the motion.
While the behavior of Ligon, who was 10 years old at the time of his accident, in attempting to "back flip" off the swing may well have contributed to the accident, it cannot be said to be so extraordinary and unforeseeable as to constitute an intervening cause, cutting off defendant's liability. It has been noted that
"To speak of an intervening 'cause' is misleading, for the problem is not one of causation but policy concerning limitation of responsibility. . . . The issue is, at what point is a defendant, whose negligent act or omission has contributed to an injury, to be relieved of liability by reason of the fact that after the act or omission a new and independent cause comes into operation" (1A NY PJI3d 360-361 [2004]).
In the circumstances of the present case, this cutoff point has not been reached.
As a landowner, defendant "must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk" ( Peralta v. Henriquez, 100 NY2d 139, 144, quoted in Cupo v. Karfunkel, 1 AD3d 48, 51). While the trier of fact must determine whether and to what extent a particular duty of care was breached, whether a duty toward a particular plaintiff is owed is a question of law for the court, and the "reasonable expectations of the parties and society generally" dictate that defendant owed a duty to plaintiff to maintain the play area in a reasonably safe condition ( Tagle v. Jacob, 97 NY2d 165, 168). In this regard, defendant's reliance on Ascher v. Scarsdale School Dist. ( 267 AD2d 339) is misplaced; although strikingly factually similar to the present case, the issue raised in Ascher was defendant's alleged failure to supervise playground activities, not the existence of any dangerous condition upon the land itself.
As foolhardy as Ligon's conduct in the present case might have been, it does not rise to the level of an intervening act that becomes a superseding cause of his injuries. The rule of superseding cause has been stated as follows:
"Where the acts of a third person [or, as here, plaintiff himself] intervene between the defendant's conduct and plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by defendant's negligence. . . . If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus. . . . Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve.
There are instances, to be sure, where only one conclusion may be drawn from the established facts and where the question of legal cause may be decided as a matter of law. Those cases generally involve independent intervening acts which operate upon but do not flow from the original negligence" ( Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315 [1980] [citations omitted]).
Key to this determination is whether the "intervening act was divorced from and not the foreseeable risk associated with the original negligence" as well as whether "the injuries were different in kind than those which would have normally been expected" to occur as a consequence of such negligence ( id.). If these conditions are met, defendant's putative negligence merely "furnishe[s] the occasion for an unrelated act to cause injuries not ordinarily anticipated," cutting off causation by defendant's negligence ( id.). Typical of this scenario is Boltax v. Joy Day Camp ( 67 NY2d 617), in which the plaintiff, a young adult, entered a closed pool area, at night, and dove from a lifeguard's chair into the shallow end of the pool, which was not completely filled. Plaintiff admitted that he was fully familiar with the existence of all of these conditions, but dove anyway. Even if defendant were presumed to have negligently maintained the pool and its fence, and even if this negligence were presumed to be a causative factor, as a matter of law it was not reasonably foreseeable to defendant that a self-admittedly knowledgeable adult swimmer would act as plaintiff in that case did ( id. at 620).
There are limits to the doctrine of intervening acts and superseding cause, however. Even acts that the onlooker might consider foolhardy in the extreme do not necessarily cut off defendant's liability where the resulting injury is one that defendant might reasonably expect to result from its negligence, and plaintiff need not demonstrate that the precise manner in which the accident occurred was foreseeable to defendant ( Derdiarian, 51 NY2d 308, 315; Mesick v. State of New York, 118 AD2d 214, 218). In Mesick, the 17-year-old plaintiff slipped while getting up speed to grab a rope swing attached to a tree, overhanging not only a creek but a cluster of jagged rocks, onto which plaintiff fell after missing the rope. Finding this scenario not unforeseeable, the Appellate Division, Third Department held the State of New York, which had known of and tolerated the swing's existence and use, liable for plaintiff's accident, albeit while attributing substantial comparative fault to plaintiff.
Likewise, Ligon's acts in the present case cannot be said, as a matter of law, to be a superseding cause of his accident. In the circumstances, it was or should have been reasonably foreseeable to defendant that a child could fall and be injured on the rock or slab under the swing ( see e.g. Kriz v. Schum, 75 NY2d 25 [finding respective plaintiffs' behavior in sliding headfirst down a slide into the shallow end of the pool and diving from a pool slide into water of unknown depth not unforeseeable and therefore not superseding cause of their respective injuries]).