TELS Attorneys Win Rare Motion for Summary Judgment on Lack
of Proximate Cause in Playground Accident
September 5, 2006
HAWTHORNE, New York -- TRAUB EGLIN LIEBERMAN
STRAUS LLP (TELS) announced that it was granted a rare summary
judgment on the issue of proximate cause, arising from a
playground accident involving a five year old child.
The Plaintiff in this case was playing
in the school yard during a recess break. While running,
she tripped and fell, striking her face on the raw timber
base of a temporary construction fence located on the playground.
The Plaintiff and her parents subsequently brought suit against
the adjoining property owner and the fence contractor. In
their lawsuit, they alleged improper and inadequate care,
installation and maintenance of the temporary fence. They
also claimed that the fence constituted a dangerous and hazardous
condition on the playground.
Rob Nobel and Lisa Black of TELS represented
the fence contractor, which had originally been retained
by the adjacent building owner. During their investigation,
Nobel and Black determined that the Plaintiff's trip and
fall was not caused by any object on the playground. After
developing a favorable factual record, they brought a motion
for summary judgment before the court. In the motion, they
argued that the fence was not
a proximate cause of Plaintiff's injuries. In fact, the Plaintiff
fell because she was running and lost her balance, and gravity
took care of the rest.
The Plaintiff and her parents countered
that young children were expected to run and fall on playgrounds,
and that because the fence was physically located on a playground,
it was logical that children could be expected to make contact
with the fence. The playground was already equipped
with a rubber safety surface, designed to protect
falling children. Plaintiffs produced an expert engineer
who determined that protective, shock-absorbing covering
should have also been applied to the timber base. The Plaintiff's
expert further claimed that, but for the Defendants' installation
of the fence with the timber base, the Plaintiff would have
fallen on the rubbert safety service.
The court disagreed with the Plaintiffs
assertion, finding that the Defendants did not bear responsibility
in this case. Although proximate cause is frequently considered
to be an issue of fact, the court agreed with TELS' position
and granted summary judgment for the Defendants stating, "...
the immediate effective cause of [Plaintiff's] injuries was
her fall, due to factors unrelated to the fence."
TELS congratulates Mr. Nobel and
Ms. Black for their success in this rare type of summary
judgment. For more information on Mr. Nobel, a partner
with TELS, please visit:
www.tels.com/profiles/robertnobel/
And to learn more about Ms. Black, an associate
in the law firm's New York office, please review her C.V.
online at:
www.tels.com/profiles/lisablack/
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