1 No. 33
Kevin Elliott,
Respondent,
v.
The City of New York et al.,
Appellants.
_________________________________________________________________
2001 NY Int. 31
March 27, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Ellen B. Fishman, for appellants.
Michael J. Hutter, for respondent.
New York State Trial Lawyers Association, amicus curiæ. GRAFFEO, J.:
After playing a few innings of softball at an athletic field located
at John F. Kennedy High School, a public school in the Bronx,
plaintiff claims that he left the field and headed toward an adjacent
set of bleachers. He climbed five rows of seating and sat on the top
row. There were no handrails on either of the open ends of the
bleachers. Ten minutes later, when it began to rain, plaintiff
attempted to descend the bleachers. After taking his first step, he
lost his balance and fell approximately four feet to the ground below,
sustaining injuries.
Plaintiff's ensuing negligence action against defendants City of New
York and New York City Board of Education was based on an alleged
violation of section 27-531(a)(8)(d) of the New York City Building
Code, entitled "Seating in assembly spaces." This provision states:
"(8) PROTECTIVE GUARDS. Protective guards shall be provided for
seating and standee areas as follows: * * * "d. A protective guard at
least twenty-six inches high above seat level shall be provided at the
open ends of bleacher seating, extending from the front of the third
row of seats to the back of the highest row of seats, and continuously
along the rear of the seating, except where the seating is adjacent to
a wall." The trial court granted plaintiff's motion for a directed
verdict on liability, holding that defendants' violation of section
27-531 constituted negligence per se. The issues of causation and
damages, however, were submitted to the jury, which found defendants
100% liable for plaintiff's injuries. Plaintiff was awarded past and
future pain and suffering damages, together with a past and future
lost earnings award. The Appellate Division modified the judgment on
the facts by directing a new trial on the issue of future lost
earnings, unless plaintiff stipulated to a reduced award, and
SNIPPETS:
The City of New York et al.,
This opinion is uncorrected and subject to revision before publication in the New York
He climbed five rows of seating and sat on the top row.
There were no handrails on either of the open ends of the bleachers.
Ten minutes later, when it began to rain, plaintiff attempted to descend the bleachers.
Protective guards shall be provided for seating and standee areas as follows:
The trial court granted plaintiff's motion for a directed verdict on liability, holding that
The Appellate Division modified the judgment on the facts by directing a new trial on the
We granted defendants leave to appeal to this Court, and now reverse and order a new trial.
The central dispute in this appeal is whether it was proper for the trial court to determine
Defendants contend that a violation of this provision constitutes only some evidence of
In analyzing whether a violation of this Administrative Code section should be viewed as
Pursuant to a home rule message from the City of New York,the State Legislature enacted the
Co.,, 91 NY2d 343, 349).
As a rule, violation of a State statute that imposes a specific duty constitutes negligence
Cautioning that the elevation of a violation of an ordinance, or administrative rule or
Significantly, the Administrative Code states that the recodification by the Legislature
Thus, the recodified Administrative Code cannot be equated with the enactment of a State
This chapter shall not operate to deprive the local legislative body of the city of New York
To surmount this "local law" designation and justify treatment under a negligence per se
Those decisions merely restate the basic proposition that a provision of the Administrative
Whether a section of the Administrative Code has the force of statute with respect to
But characterizing the vast multitude of ordinances that have been adopted by New York City
atute.
Plaintiff did not dispute that the State Legislature's approval of the Administrative Code
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