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Mercatante v. City of New York

Supreme Court of New York, Appellate Division

June 28, 1955

Mercatante
v.
City of New York

Page 266

[142 N.Y.S.2d 474] Anthony Curreri, New York City, of counsel (Seymour B. Quel, New York City, with him on the brief, Peter Campbell Brown, Corp. Counsel, New York City, attorney), for defendant-appellant.

Samuel A. Bloom, New York City, of counsel (Bloom, Harris & Tolmage, New York City, attorneys), for plaintiffs-respondents.

Before PECK, P. J., and COHN, CALLAHAN, BREITEL, and BOTEIN, JJ.

COHN, Justice.

The appeal is by defendant from a judgment entered in a personal injury action after a jury trial in favor of Joan Mercatante and in favor of her father for medical expenses against the City of New York.

Joan Mercatante was employed as a clerk in Gouverneur Hospital by the Department of Hospitals of the City of New York. In the course of her duties at the hospital, while walking along

Page 267

a narrow hallway three to four feet wide on the fourth floor, she dropped her wallet. It fell underneath a fire extinguisher hanging on the wall of the corridor. She stooped to pick up the wallet. According to her testimony, as she raised her head she was struck by the fire extinguisher, which fell to the floor producing the injuries for which she has brought suit. The extinguisher weighed close to 54 pounds. The bottom was at her chest level, fifty to sixty inches above the floor and its top about eight to ten inches above her head. Witnesses for defendant testified that it was supported by [142 N.Y.S.2d 475] a single hook screwed to a wall board, secured to the wall by bolts and could not be removed without raising it off the hook. It had last been taken down in the course of a fire drill some four months before the accident. Plaintiff claimed that there were two hooks about one inch apart. Other than the plaintiff's own testimony, there was no evidence as to the manner in which the accident had occurred. Though it was plaintiff's theory that the fire extinguisher fell and struck her, defendant urges it was far more probable that she knocked the extinguisher off the wall in raising herself from a stooped position.

The complaint and the bill of particulars set forth specific acts of negligence by defendant relating to the unsafe manner in which it had attached the fire extinguisher to the wall and for its failure to provide a bracket or shelf upon which it could rest. It was also claimed that defendant had failed to supply plaintiff with a safe place to work; that the screws or other devices by which the fire extinguisher was hung on the wall had been worn, loosened and weakened, and consequently were not strong enough to sustain the weight of the fire extinguisher; and that defendant was negligent in failing to inspect the mechanism within a reasonable time prior to the occurrence of the accident.

Plaintiff contended that the doctrine of res ipsa loquitur applied. Defendant urged on the other hand that such rule had no application because the City was not in exclusive control of the extinguisher or of the place where it had been fastened to the wall.

Upon the trial, no evidence was adduced which would support any of the specified acts of negligence. There was no proof of any defect in the extinguisher or in its supporting hook, nor was there any attempt to prove actual or constructive notice of a defect, if it had existed.

We think the doctrine of res ipsa loquitur was erroneously invoked. It is well-settled law that such doctrine is applicable

Page 268

only in those situations where the injury-producing agency is within the exclusive control and possession of the person charged with negligence. Moreover, if it may be equally inferred that the accident might have been due to causes in no way connected with defendant's negligence, then the rule of res ipsa loquitur may not be invoked and plaintiff will be required to prove the fact of negligence. Galbraith v. Busch, 267 N.Y. 230, 234, 196 N.E. 36, 38; Foltis, Inc., v. City of New York, 287 N.Y. 108, ...


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