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INFANT PLAINTIFF WAS INJURED WHEN HE INADVERTENTLY SLAPPED A DISPLAY CASE IN THE HALL OF A SCHOOL AND THE GLASS SHATTERED; THERE WAS EVIDENCE A SIMILAR INCIDENT HAD OCCURRED IN THE PAST AND SOME OF THE PANELS IN THE DISPLAY CASE WERE MADE OF SHATTERPROOF PLEXIGLASS; PLAINTIFF’S PREMISES-LIABILITY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s premises-liability cause of action against defendant school district should not have been dismissed. Infant plaintiff was pretending to play basketball when he inadvertently slapped a display case in the hall of the school and the glass shattered. There was evidence glass in the display case had shattered before and some of the glass panels were made of shatterproof plexiglass:

The defendant’s evidence in support of the motion did not eliminate triable issues of fact as to whether it had notice of the allegedly dangerous or defective condition because, among other things, the head custodian of the school testified at his deposition that at least one other glass panel in a similar display case in the school had shattered prior to the accident … . Further, the evidence submitted in support of the defendant’s motion failed to eliminate all triable issues of fact as to whether the glass panel was open and obvious and not inherently dangerous. In particular, the evidence demonstrated that the display case where the accident occurred contained two panes of shatterproof plexiglass and one glass pane and that the infant plaintiff was under the impression that the display case was made entirely of unbreakable material. R.B. v Sewanhaka Cent. High Sch. Dist., 2022 NY Slip Op 04616, Second Dept 7-20-22

Practice Point: Here a glass panel in a display case located in the hallway of a school shattered when plaintiff-student slapped it. There was evidence a similar incident occurred in the past, and some of the panels in the display case were made of shatterproof plexiglass. Therefore there was evidence the school had notice of the dangerous condition and there was a question whether the dangerous condition was open and obvious.

 

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