TELS Attorneys Win Rare Motion for Summary Judgment on Lack of Proximate Cause in Playground Accident

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The New York law firm of Traub Eglin Lieberman Straus won a rare motion for summary judgment on the issue of proximate cause, which stemmed from an unusual playground accident. In the incident, a five year old girl hit the base of a temporary fence on a playground, suffering significant injuries. The girl and her family later sued, alleging that the fence contractor was negligent in placing the hazardous fence in the playground. TELS attorneys countered that the Plaintiff was the sole proximate cause for her injuries, and filed a motion for summary judgment. The New York court granted the rare motion, finding that the Defendants did not bear responsibility in this case.

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 rubber 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."

The case involved was Levinger, et al. v. The City of New York, et al. (Supreme Court of the State of New York, County of New York, Index Number 102236/01).

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:

http://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:

http://www.tels.com/profiles/lisablack/

ABOUT TELS

Traub Eglin Lieberman Straus LLP (TELS) has achieved a national reputation for excellence in legal representation. Our philosophy is to provide quality legal representation in an expeditious and efficient manner. Our emphasis on client service, as well as our reputation in the legal community, has served our clients and the firm well. TELS has been recognized by many, including Martindale-Hubbell, for outstanding legal ability and ethical standards. For more information, visit us online at http://www.tels.com.

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