Opinion
March 28, 1980
Appeal from the Erie Supreme Court.
Present — Simons, J.P., Hancock, Jr., Callahan, Witmer and Moule, JJ.
Order unanimously reversed, without costs, motion granted and complaint dismissed. Memorandum: Defendant, City of Buffalo, appeals from a judgment after a jury trial in a negligence case. Infant plaintiff, then six years old, was injured on May 24, 1972 while using a "baby swing" in the city's Rees Street playground when she attempted to stand up in the swing and fell off. No defect in the swing, in any other equipment, or in the premises was alleged or proven. The only theory for recovery stated in the complaint and the bill of particulars and submitted to the jury in the court's charge, was that the city was negligent in permitting the public to enter the playground and to use the facilities and in particular, the swing, without providing supervision. The court erred in denying defendant's motion for a nonsuit and its posttrial motion to set aside the verdict. While it is a settled rule that a city has a duty of general supervision of its playgrounds which it holds open to the public (see Caldwell v. Village of Island Park, 304 N.Y. 268, 273-275), it need not provide the specific and immediate supervision of playground facilities which would have been required, under the circumstances here, to prevent the infant plaintiff from falling from the swing (see Peterson v. City of New York, 267 N.Y. 204, 206; Saracino v. City of New York, 30 A.D.2d 853, affd 23 N.Y.2d 938). Even if it be assumed that defendant failed in its duty to furnish general superintendence, there is no evidence that such failure could have been the proximate cause of infant plaintiff's injuries (see Diaz v. City of New York, 25 A.D.2d 430, affd 23 N.Y.2d 748).