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WHERE THERE ARE TWO POSSIBLE CAUSES OF A DANGEROUS CONDITION AND THE TRIER OF FACT WOULD HAVE TO RESORT TO SPECULATION ABOUT WHETHER THE ALLEGED NEGLIGENCE OF THE DEFENDANT WAS THE PROXIMATE CAUSE, THE ACTION MUST BE DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant New York City Housing Authority’s (NYCHA’s) summary judgment motion in this playground injury case should have been granted. Plaintiff alleged a water sprinkler, in which children could play, was too close to the monkey bars and infant plaintiff was injured falling from the wet monkey bars. However the plaintiff presented evidence that children who were wet from playing in the sprinkler had climbed the monkey bars before infant plaintiff slipped and fell. The Second Department held that finding the NYCHA negligent would have to be based upon speculation:

The infant plaintiff testified at a General Municipal Law § 50-h hearing and his deposition that the wind was pushing water from the sprinkler to the monkey bars. However, the infant plaintiff also testified at his deposition that, immediately before he went on the ladder to the monkey bars, two children who were wet from playing in the sprinkler climbed on the ladder. “Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he [or she] has failed to prove that the negligence of the defendant caused the injury” … . Given the wet children who preceded the infant plaintiff on the ladder, it would require impermissible speculation to conclude that the water on which the infant plaintiff slipped was caused by the proximity of the sprinkler to the monkey bars … .

The affidavit of the infant plaintiff to the effect that the ladder was wet before the wet children climbed on it “presented what appears to be a feigned issue of fact, designed to avoid the consequences of [his] earlier deposition testimony” that he did not see that the ladder was wet before he climbed on it … .  Wilson v New York City Hous. Auth., 2020 NY Slip Op 04427, Second Dept 8-5-20

 

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