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Condition Which Resulted in Plaintiff’s Injury Was Not the Cause of the Injury

The Second Department determined a personal injury action was properly dismissed because the condition which led to plaintiff's injury (a five-foot drop from the top of a retaining wall to the sidewalk) was not the cause of the accident.  Infant plaintiff lost control of her bicycle, left the path, and was injured when she went over the top of the retaining wall and fell to the sidewalk:

Although the issue of proximate cause is generally one for the finder of fact …, “liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes” … .

Here, the evidence submitted in support of the defendant's motion, which included a transcript of the deposition testimony of the infant plaintiff, demonstrated that the accident was proximately caused by the infant plaintiff's failure to control her bicycle and the failure of the bicycle's brakes … . The retaining wall, which was erected a considerable distance from the portion of the paved pedestrian path from which the infant plaintiff deviated, merely furnished the condition or occasion for the infant plaintiff's accident, and was not one of its causes … . Any alleged negligence in the design, maintenance, or management of the retaining wall did not proximately cause the subject accident … . Rattray v City of New York, 2014 NY Slip Op 08416, 2nd Dept 12-3-14

 

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