Opinion
October 23, 1961
In a negligence action to recover damages for personal injuries and medical expenses, the defendant, by permission of the Appellate Term of the Supreme Court in the Second Judicial Department, appeals from an order of said Appellate Term, entered February 8, 1961, which modified a judgment of the District Court, Nassau County, Fourth District, entered April 29, 1960, in favor of plaintiffs, after a nonjury trial. By its modification the Appellate Term increased the amount of such judgment in plaintiffs' favor. In this personal injury action the infant plaintiff, a first-grade pupil, was injured during school lunch hour by falling from a six-foot-high horizontal ladder while hanging therefrom by his hands. Order of the Appellate Term and judgment of the District Court of Nassau County reversed on the law, without costs and complaint dismissed, without costs. The trial court's findings of fact are affirmed. Plaintiffs failed to make out a prima facie case. Under the circumstances, requirement of more specific supervision than that actually provided, would be unreasonable (cf. Miller v. Board of Educ. of Union Free School Dist. No. 1, 249 App. Div. 738). In our opinion, there was no competent proof adduced that the apparatus was unsuitable for children of plaintiff's age; nor may that fact be inferred solely from the size of the apparatus. Nolan, P.J., Beldock, Ughetta, Kleinfeld and Brennan, JJ., concur.