Schafranek v. City of New York , 146 N.Y.S.2d 658 ( 1955 )

Cox, J. (dissenting).

It seems clear from the plaintiff’s testimony that she slipped or otherwise fell at some point on the platform itself and that her accident was in no way related to the space under the lamp balustrade.

Plaintiff testified to a broken condition of the platform, not to an opening under the adjacent lamp balustrade. It seems quite apparent that plaintiff did not actually know what caused her to fall. In this respect the instant case is somewhat similar to the recent case of Arnold v. City of New York (286 App. Div. 997), where this court reversed and dismissed the complaint on that basis.

Nor is it enough to show, as seems to have been done here, that the structural condition was the most probable cause of the accident. The burden was on the plaintiff to show that the opening under the lamp balustrade was the cause of the accident. This burden has not been met.

Considering the testimony of the plaintiff in its most favorable light it fails to establish any actionable negligence on behalf of the city. Even if it be assumed that the accident occurred by reason of plaintiff’s foot becoming wedged in the recess under the lamp balustrade, it could not possibly have been foreseen by the defendant. “ The fundamental basis of liability for actionable negligence is the reasonable foreseeability of the risk; every possible accident due to unusual and reasonably unforeseeable combinations of circumstances is not included”. (Cartee v. Saks Fifth Ave., 277 App. Div. 606, 609, affd. 303 N. Y. 832.) “ Liability for actionable negligence must lie within the range of natural and probable consequences ” (supra, p. 611).

The judgment should be reversed and the complaint dismissed.

Breitel, J. P., Bastow, Botein and Rabin, JJ., concur in decision. Cox, J., dissents and votes to reverse in opinion.

Judgment affirmed, with costs. No opinion.