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QUESTIONS OF FACT WHETHER CLUTTER AT A DAY CARE CENTER WAS A PROXIMATE CAUSE OF PLAINTIFF’S FALL AND WHETHER A BICYCLE RIDDEN BY A THREE-YEAR-OLD WAS A DANGEROUS INSTRUMENT REQUIRING SUPERVISION BY THE OPERATOR OF THE DAY CARE CENTER (THIRD DEPT).

The Third Department, over a two-justice partial dissent, determined there were questions of fact about whether a cluttered area at a day care center was a proximate cause of plaintiff’s falling and whether a bicycle ridden by a three-year-old was a dangerous instrument requiring supervision by the operator of the day care center. The plaintiff had picked up her infant when her three-year-old ran into her with the bicycle. Plaintiff alleged that, had the area not been cluttered with toys and furniture, she could have avoided falling. The dissenters argued that the bicycle was not a dangerous instrument and the negligent supervision cause of action failed as a matter of law:

Here, the actions of the three-year-old child were unquestionably the precipitating factor in plaintiff’s accident. However, plaintiff explained that, after being struck by the bicycle, she attempted to regain her balance but was unable to because she was “trapped” between a table and an ottoman and could not take a step in any direction without tripping on one of the various objects scattered about the porch. She further averred that, had the floor not been so cluttered with toys, objects and furniture, she would have been able to regain her balance before falling. Viewing this evidence in the light most favorable to plaintiff and affording her the benefit of every favorable inference that may be drawn therefrom … , we find a triable issue of fact as to whether the condition of the porch was a proximate cause of plaintiff’s injuries … . …

As the Court of Appeals has explained, “[c]hildren might, at various points in their development, be permitted, and properly so, to use bicycles, lawn mowers, power tools, motorcycles, or automobiles, all of which are, in some contingencies, ‘dangerous instruments'” … . “[T]he determination of whether a particular instrument is dangerous ‘depends upon the nature and complexity of the allegedly dangerous instrument, the age, intelligence and experience of the child, and his [or her] proficiency with the instrument'”… . Pineiro v Rush, 2018 NY Slip Op 04994, Third Dept 7-5-18

​NEGLIGENCE (QUESTIONS OF FACT WHETHER CLUTTER AT A DAY CARE CENTER WAS A PROXIMATE CAUSE OF PLAINTIFF’S FALL AND WHETHER A BICYCLE RIDDEN BY A THREE-YEAR-OLD WAS A DANGEROUS INSTRUMENT REQUIRING SUPERVISION BY THE OPERATOR OF THE DAY CARE CENTER (THIRD DEPT))/SLIP AND FALL (QUESTIONS OF FACT WHETHER CLUTTER AT A DAY CARE CENTER WAS A PROXIMATE CAUSE OF PLAINTIFF’S FALL AND WHETHER A BICYCLE RIDDEN BY A THREE-YEAR-OLD WAS A DANGEROUS INSTRUMENT REQUIRING SUPERVISION BY THE OPERATOR OF THE DAY CARE CENTER (THIRD DEPT))/NEGLIGENT SUPERVISION  (QUESTIONS OF FACT WHETHER CLUTTER AT A DAY CARE CENTER WAS A PROXIMATE CAUSE OF PLAINTIFF’S FALL AND WHETHER A BICYCLE RIDDEN BY A THREE-YEAR-OLD WAS A DANGEROUS INSTRUMENT REQUIRING SUPERVISION BY THE OPERATOR OF THE DAY CARE CENTER (THIRD DEPT))/BICYCLES (DANGEROUS INSTRUMENTS, NEGLIGENT SUPERVISION, QUESTIONS OF FACT WHETHER CLUTTER AT A DAY CARE CENTER WAS A PROXIMATE CAUSE OF PLAINTIFF’S FALL AND WHETHER A BICYCLE RIDDEN BY A THREE-YEAR-OLD WAS A DANGEROUS INSTRUMENT REQUIRING SUPERVISION BY THE OPERATOR OF THE DAY CARE CENTER (THIRD DEPT))/NEGLIGENT SUPERVISION (DAY CARE, QUESTIONS OF FACT WHETHER CLUTTER AT A DAY CARE CENTER WAS A PROXIMATE CAUSE OF PLAINTIFF’S FALL AND WHETHER A BICYCLE RIDDEN BY A THREE-YEAR-OLD WAS A DANGEROUS INSTRUMENT REQUIRING SUPERVISION BY THE OPERATOR OF THE DAY CARE CENTER (THIRD DEPT))/DAY CARE (NEGLIGENT SUPERVISION, QUESTIONS OF FACT WHETHER CLUTTER AT A DAY CARE CENTER WAS A PROXIMATE CAUSE OF PLAINTIFF’S FALL AND WHETHER A BICYCLE RIDDEN BY A THREE-YEAR-OLD WAS A DANGEROUS INSTRUMENT REQUIRING SUPERVISION BY THE OPERATOR OF THE DAY CARE CENTER (THIRD DEPT))

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