MEMORANDUM. The judgment should be reversed and the complaint dismissed, with costs in all courts. Where the evidence as to the cause of the accident which injured plaintiff is undisputed, the question as to whether any act or omission of the defendant was a proximate cause thereof is one for the court and not for the jury. ( Hoffman v. King, 160 N.Y. 618, 628; Gralton v. Oliver, 277 App. Div. 449, 454, affd. 302 N.Y. 864; Bolsenbroek v. Tully Di Napoli, 12 A.D.2d 376, affd. 10 N.Y.2d 960.) This court has consistently held that the negligence complained of must have caused the occurrence of the accident from which the injuries flow. ( Storrs v. City of Utica, 17 N.Y. 104; Applebee v. State of New York, 308 N.Y. 502.) It is clear in the present case that the condition of the bathtub's plumbing was not the proximate cause of the accident. The hot water created the specific injuries for which damages were sought and determined the gravity of the consequences resulting from the accident, but it did not cause the intervening act which was not foreseeable. ( Ranney v. Habern Realty Corp., 281 App. Div. 278, affd. 306 N.Y. 820.) The accident was caused by the slipping of a wet boot while the child balanced on the curved edge of the bathtub. ( Lefkowitz v. Greenwich Sav. Bank, 293 N.Y. 711.)

Judges FULD, FROESSEL, BURKE and FOSTER concur in Memorandum; Chief Judge DESMOND and Judges DYE and VAN VOORHIS dissent and vote to affirm upon the ground that the record presents questions of fact as to causation and foreseeability.

Judgment reversed, etc.

Summaries of

Rivera v. City of New York

Court of Appeals of the State of New York

Apr 5, 1962

11 N.Y.2d 856 (N.Y. 1962)

In Rivera, the evidence established that a nine-year-old boy sustained injuries when he fell into a bathtub filled with hot water.

Summary of this case from Muhaymin v. Negron

In Rivera, the infant plaintiff slipped and fell into a bathtub full of hot water while standing on the edge of the bathtub, wearing wet boots, and leaning against a wall in an attempt to reach a light cord.

Summary of this case from Trimarco v. Klein

In Rivera, an infant plaintiff standing on the edge of a bathtub and attempting to reach a light cord, lost his balance and fell into hot water present in the tub, thereby receiving serious burns.

Summary of this case from Martinez v. Lazaroff

In Rivera, the nine-year-old plaintiff, standing on the edge of a bathtub, wearing wet boots, and attempting to reach a light cord, lost his balance and fell into hot water in the tub, thereby suffering serious burns.

Summary of this case from Martinez v. Lazaroff

In Rivera v City of New York (11 N.Y.2d 856), upon which the majority relies, the defendant created a defective plumbing condition which caused a bathtub to be continuously full of hot water, and a child wearing wet boots stood on the edge of the bathtub, slipped, and fell into the water.

Summary of this case from Mace v. Ryder Truck Rental, Inc.

In Rivera v City of New York (11 N.Y.2d 856, 857) the court observed: "This court has consistently held that the negligence complained of must have caused the occurrence of the accident from which the injuries flow."

Summary of this case from Mace v. Ryder Truck Rental, Inc.

In Rivera, an infant plaintiff, standing on the edge of a bathtub and attempting to reach a light cord, lost his balance and fell into hot water present in the tub, thereby receiving serious burns.

Summary of this case from Pagan v. Goldberger

plumbing not cause of scalding accident where child wearing wet boots balanced on curved edge of bathtub filled with hot water

Summary of this case from Sawchuk v. 335 Realty 58 Associates

Rivera v. City of New York

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Rivera v. City of New York

Rivera v. City of New York

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Rivera v. City of New York

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Rivera v. City of New York

Rivera v. City of New York

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