Date: 01-28-1999

Case Style: Mark Roberts, et al v. New York City Housing Authority

Case Number: Unknown1/10/00

Judge: Ira Gammerman

Court: Supreme Court, New York County

Plaintiff's Attorney: Alexander J. Wulwick.

Defendant's Attorney: Herbert Rubin.

Description: The infant plaintiff suffered burns as a result of the emission of steam, with a temperature of 200 degrees Fahrenheit, from a five-inch diameter fire hose that defendant, in order to discharge excess steam condensate from the hot water system of one of its buildings in the development where plaintiff lived, had run from the basement of the building to the lawn behind the building, adjacent to a small playground on concrete. The lawn was fenced off, but the fence could be easily breached, and it was common knowledge that children regularly played on the lawn. No effort had been made to secure the hose; no warning signs were up; and defendant did not claim that it was not negligent

Outcome: Jury verdict for plaintiff. Reward amounts unknown.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Defendant appealed, arguing that the trial court erred in refusing to charge intervening cause, on the basis of evidence showing that the infant plaintiff, six years old at the time of the incident, was pushed into the steam by his friend, a five-year-old boy, and assumption of risk, on the basis of evidence showing that plaintiff climbed over the fence closing off the lawn. Appellate Division of the Supreme Court of the State of New York First Department disagreed, noting: It was a natural and foreseeable consequence of defendant's failure to effectively secure the lawn against access that young children would play there, and, as a matter of law, roughhousing is not such an "extraordinary" form of play as to break the causal connection between the dangerous condition on the lawn and plaintiff's injuries Also, as a matter of law, the doctrine of assumption of risk, which contemplates the voluntary assumption of fully appreciated, "`perfectly obvious'" risks can have no application to a six-year old under these circumstances. See: 685 N.Y.S.2d 23 (A.D.2d 1st Dept 1999]. The date shown above is the date of the appellate court decision and not the trial date. Reported by JAB.