Summary
In Lobsenz v. Rubinstein (258 App. Div. 164, affd. 283 N.Y. 600, supra) an infant girl 15½ years of age, a paying guest at a summer camp, slipped into a depression and fell while playing tennis on a court maintained by defendant for the use of guests.
Summary of this case from Scala v. City of New YorkOpinion
December 4, 1939.
Appeal from Supreme Court of Kings County, NOVA, J.
George J. Stacy [ James J. Mahoney and Joseph Kane with him on the brief], for the appellant.
Myron J. Greene [ Harris Jay Griston and Walter K. Pick with him on the brief], for the respondents.
Action by infant plaintiff to recover damages for personal injuries and by her father for loss of services and expenses.
The infant, fifteen and a half years old, was a paying guest at a summer camp maintained by defendant. While playing tennis she slipped into a depression and fell, resulting in injury to her knee. She claims that the tennis court was in an unsafe condition because it was "weedy" and contained holes or depressions. The record is silent as to the shape, size or depth of the depression into which she stepped. On the argument counsel stated there was no claim that the depression was in the nature of a trap, nor is there any evidence that would support such claim. Assuming that the tennis court was maintained in a condition unsuited and unsafe for play, there is no evidence that the alleged dangerous condition was the proximate cause of her injury. Moreover, the infant plaintiff was guilty of contributory negligence as matter of law. The evidence shows she knew of the dangerous condition of which she complains and realized the risks involved in playing tennis on a court in which there were depressions. ( Shields v. Van Kelton Amusement Corp., 228 N.Y. 396; Griffin v. State of New York, 250 App. Div. 244, 248; Restatement, Torts, § 340.)
The judgment in favor of plaintiffs should be reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs.
LAZANSKY. P.J., CARSWELL, JOHNSTON, ADEL and CLOSE, JJ., concur.
Judgment in favor of plaintiffs reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs.