Opinion
March 8, 1996
Appeal from the Supreme Court, Erie County, Glownia, J.
Present — Lawton, J.P., Fallon, Doerr, Balio and Davis, JJ.
Order affirmed without costs. Memorandum: Plaintiff, a 17 year old, was injured when he used a chair to launch himself into the air to dunk a basketball during an open gym period. By submitting evidentiary proof in admissible form that defendant violated its written policy of supervision, plaintiff raised an issue of fact sufficient to withstand defendant's motion for summary judgment. Whether that breach of duty was a proximate cause of plaintiff's injury is a matter for jury determination ( see, Benitez v New York City Bd. of Educ., 73 N.Y.2d 650, 656-658; Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 314-315, rearg denied 52 N.Y.2d 784).
All concur except Lawton, J.P., who dissents and votes to reverse in the following Memorandum.
I respectfully dissent. The failure of defendant to close the gym in accordance with its in-house rules was not a competent producing cause of plaintiff's injuries ( see generally, Sheehan v City of New York, 40 N.Y.2d 496, 501-504). Rather, the 17-year-old plaintiff was injured when he took a running leap from a chair in order to dunk a basketball, hung on the rim of the basketball hoop, and then fell to the floor. That conduct constituted an unforeseeable superseding event that absolves defendant of liability ( see, Heard v City of New York, 82 N.Y.2d 66, 71-76, rearg denied 82 N.Y.2d 889; Boltax v Joy Day Camp, 67 N.Y.2d 617, 619-620; Schiffman v Spring, 202 A.D.2d 1007, 1008-1009; Marlowe v Rush-Henrietta Cent. School Dist., 167 A.D.2d 820, affd 78 N.Y.2d 1096). The majority's holding makes defendant an insurer for any injuries sustained when an employee is not present without regard to the cause of the injuries. In fact, under the majority's holding, the more dangerous the activity, the greater the liability. While cases involving small children may warrant such a holding, a case like this, involving a plaintiff who was aware of and appreciated the hazard to which he exposed himself, does not ( see, Heard v City of New York, supra). I, therefore, would reverse and grant defendant's motion for summary judgment dismissing the complaint.