Opinion
July 10, 1967
In an action to recover damages for personal injuries allegedly sustained by the plaintiff while he was a guest at the defendant's hotel, in which defendant's motion to set aside the jury's verdict in plaintiff's favor for $55,000 and for a new trial was denied upon all grounds other than excessiveness, and a new trial limited to the issue of damages was granted unless plaintiff consented to a reduction of the verdict to $45,000, without prejudice to plaintiff's right to cross appeal in the event of an appeal by defendant, the parties cross appeal, as limited by their respective briefs, from the resulting judgment of the Supreme Court, Kings County, entered July 21, 1966, insofar as it affects each of them adversely. Judgment, insofar as appealed from, reversed on the law and the facts, and a new trial granted, with costs to abide the event, unless, within 30 days after entry of the order hereon, plaintiff shall serve and file a written stipulation consenting to further reduce to $30,000 the amount of the verdict in his favor, and to the entry of an amended judgment accordingly, in which event the judgment, as so reduced and amended, and insofar as appealed from, is affirmed, without costs. While the jury was warranted in determining that defendant was negligent in failing to maintain the basketball court in a reasonably safe manner for the anticipated use of the guests ( Ginsberg v. Levbourne Realty Co., 25 A.D.2d 440; Pincus v. Kiamesha Concord, 24 A.D.2d 808), we are of the opinion that an award of $30,000 is fair and adequate for all the damages and injuries sustained by the plaintiff. Brennan, Acting P.J., Rabin, and Hopkins, JJ., concur; Benjamin and Munder, JJ., dissent and vote to reverse the judgment and to dismiss the complaint, with the following memorandum: Plaintiff, while a guest at defendant's Summer resort hotel, slipped and fell while playing basketball on an outdoor basketball court, which was paved with macadam and was bounded on three sides by grass and dirt. He has recovered a verdict on the theory that the presence of a minuscule quantity of sand on the court evidenced a breach of defendant's obligation of reasonable care and thus established actionable negligence. We cannot agree with this result nor with the theory on which it is based. So small was the quantity of sand that allegedly caused plaintiff's fall that it could not be seen until the viewer was right "on top of it." We do not believe that the presence of such quantity of sand on a resort hotel's outdoor basketball court, surrounded by grass and by dirt which can be tracked onto the court by every passing guest, by every ball player, and by the elements themselves, evidences lack of reasonable care by the owner of the hotel. To require the owner to keep such outdoor play area as immaculate as a ballroom dance floor would be to impose an impossible and clearly unreasonable burden upon him. And it is undisputed on this record that defendant did provide supervision and "housecleaning" service for this play area that clearly met the requirements of reasonable care in light of all the circumstances. In our opinion, plaintiff has not established actionable negligence on defendant's part, the verdict in his favor is contrary to the evidence as a matter of law, his judgment should be reversed, and his complaint should be dismissed.