In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Blydenburgh, J.), entered August 15, 2006, which, upon a jury verdict on the issue of liability, and upon the denial of their motion pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence and as inconsistent, and for a new trial, is in favor of the defendant and against them dismissing the complaint.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
STEVEN W. FISHER, J.P., FRED T. SANTUCCI, RUTH C. BALKIN and ARIEL E. BELEN, JJ.
ORDERED that the judgment is affirmed, with costs.
On June 21, 2002, the five-year-old infant plaintiff was a kindergartner at Southdown Elementary School in the defendant school district. She was injured when she fell from the third rung of a "Serpentine Trek" set of monkey bars. The accident occurred after lunch, during recess. The infant plaintiff, by her father, and her father, individually, commenced this action against the school district. The case ultimately was tried to a jury.
Evidence at trial established that the monkey bar apparatus was a component of a play system that also included a slide. Kindergartners were allowed to use the slide, but were not permitted on the monkey bars. At the time of the accident, there were two playground aides on duty, supervising two classes of kindergartners. When the aide stationed in the area of the monkey bars stepped away to help a crying child near a swing set some 30 feet away, the infant plaintiff climbed on and then slipped off the monkey bars, sustaining injuries. The infant plaintiff testified that her hands were slippery because she had eaten pizza for lunch and had not washed the grease from her hands before going to the playground. The jury returned a verdict finding that, although the defendant school district had been negligent, its negligence was not a substantial factor in causing the accident. The plaintiffs appeal, arguing, inter alia, that the verdict was both against the weight of the evidence and fatally inconsistent.
"A jury verdict should not be set aside as against the weight of the evidence unless the evidence at trial so preponderated in favor of the appealing party that the verdict could not have been reached on any fair interpretation of the evidence . . . Where the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view" (Barnett v Schwartz, 47 AD3d 197, 205 [internal citations omitted]). Moreover, a "jury's finding that a party was at fault but that that fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are 'so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause'" (Schaefer v Guddemi, 182 AD2d 808, 809, quoting Rubin v Pecoraro, 141 AD2d 525, 527; see Rivera v MTA Long Is. Bus, 45 AD3d 557, 558). Thus, where there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view (see Abre v Sherman, 36 AD3d 725, 726).
Here, the playground aide who was stationed near the monkey bars testified that, as she moved to assist the crying child near the swing set some 30 feet away, she did not observe any children attempting to climb on the monkey bars or any children lined up to do so. She testified further that she was in the area of the swing set for only a couple of seconds when another student informed her that the infant plaintiff had been injured on the monkey bars. The jury was entitled to accept the aide's testimony and to conclude that, although the defendant school district was negligent in having only two playground aides supervising two kindergarten classes at recess, the accident, involving the infant plaintiff gaining immediate access to the monkey bars with pizza grease on her hands and falling after successfully negotiating only two bars, happened so quickly that greater supervision would not have prevented it. Since such a view of the evidence would not have been either unreasonable or logically impossible, we presume that the jury adopted it, and uphold its verdict finding that the defendant school district was negligent but that its negligence was not a substantial factor in causing the accident (see Abre v Sherman, 36 AD3d at 726).
Our dissenting colleague would set aside the jury's verdict, in part, on the basis of our holding in Rodriguez v Elmont School Dist. (37 AD3d 448), in which we found that the trial court properly set aside a jury verdict as fatally inconsistent and against the weight of the evidence. Rodriguez, however, is clearly distinguishable. In Rodriguez, there was no contention that there was an inadequate number of playground monitors. The jury's finding of negligence necessarily rested on the plaintiff's testimony that she and her friends had been playing for some 10 minutes on the cement or concrete cylindrical barrel from which she fell, that the monitors on duty were congregated 200 to 300 feet from the children they were supposed to be supervising and were inattentive to them, and that, although the plaintiff lay on the ground crying after the accident, none of the playground monitors noticed that she had fallen for approximately 5 to 10 minutes (id. at 448-449). And, given the jury's conclusion that the monitors were inattentive and not correctly positioned, the jury could not reasonably have accepted the defense argument that the plaintiff climbed onto, played on, and fell from the barrel so suddenly that even attentive monitors could not have prevented her injury. Thus, unlike in the case at bar, the jury's finding of negligence in Rodriguez was so inextricably linked to the cause of the accident that it was neither reasonable nor logically possible to conclude that the negligence was not a proximate cause of the plaintiff's injury (id. at 450; see Nicastro v Park, 113 AD2d 129, 137-138).
The plaintiffs' remaining contentions are either unpreserved for appellate review or without merit.
FISHER, J.P., SANTUCCI, and BALKIN, JJ., concur.
BELEN, J., dissents, and votes to reverse the judgment, grant the plaintiff's motion pursuant to CPLR 4404(a) to set aside the jury verdict as against the weight of the evidence and as inconsistent, and remit the matter to the Supreme Court, ...