Opinion
May 3, 1971
In a negligence action to recover damages for personal injuries sustained by plaintiff Judith Mathews Lowe, loss of services, etc., plaintiffs appeal from a judgment of the Supreme Court, Kings County, dated June 4, 1970, which dismissed the complaint upon the trial court's decision at the close of plaintiffs' case upon a jury trial limited to the issue of liability. Judgment reversed, on the law and in the interests of justice, and new trial granted, with costs to abide the event. The questions of fact have not been considered. The accident in question occurred on March 14, 1963 in the gymnasium class in which the injured plaintiff was a pupil. She claims she had a physical disability because of a prior injury; and she testified that defendant had notice of her disability by three notes from her doctor in 1962 and that over her protest her teacher insisted that she do broad jumps as part of the gymnasium exercises. With this proof plaintiffs tendered a prima facie case, provided it could be said that there was a causal connection shown between the negligence claimed — compelling a disabled pupil to perform physical exercises — and the injury incurred. However, no medical proof was offered by plaintiffs to show such causal connection. This was a split trial and only the limited issue of liability was tried. In such trials where causal connection is evident the medical proof is reserved for that part of the trial given to assessment of damages. Under the facts of this particular case, the causal connection is of such a nature as to require expert medical opinion. Under the circumstances discussed, a complete trial, embracing both the liability and damage issues, should now be held, in view of the apparent necessity for medical proof. Martuscello, Acting P.J., Latham, Gulotta, Christ and Benjamin, JJ., concur.