Muhaymin v. Negron

Judgment, Supreme Court, New York County (Rosen, J.), entered January 18, 1980, dismissing a wrongful death and personal injury action after a jury verdict, reversed, on the law and on the facts, and in the exercise of discretion, and remanded for a new trial, with costs to abide the event. After two weeks of intensive hospital care, Shakir Muhaymin, a six-year-old boy, died as a result of burns to his entire body sustained when he fell, under disputed circumstances, into a bathtub filled with scalding hot water. From the evidence presented at trial in this wrongful death and personal injury action, the jury could appropriately find, as indeed it did in response to specific questions, that the bathtub condition was a result of seriously defective bathroom appliances that over a period of time recurrently caused the tub to fill with scalding hot water, that the condition was not controllable by the family of the deceased, that the respondent landlord had notice of the hazardous condition and had failed to correct it. In response to the court’s specific question as to whether the defendant’s negligence was the proximate cause of the event, the jury responded in the negative. The critical issue on this appeal is raised by the plaintiff’s claim that the court’s charge on proximate cause was fundamentally erroneous. We agree that it was, and accordingly reverse the judgment entered below, and remand for a new trial. The plaintiff’s principal thesis on the issue of proximate cause was that the deceased, one of six children ranging in age from 1 to 11, washed his hands after urinating, that the water from the sink faucet was hot, and that he was caused to fall back into the bathtub. Plaintiff’s mother testified that she saw her son go into the bathroom to urinate, heard him doing so, and then heard a spurt of water followed by a scream and a splash. She then observed her son emerging from the bathroom soaked from head to toe. The mother also testified that the son told her in the hospital that he had turned on the sink faucet, that the water was hot and burned his hand, causing him to fall into the tub. In response to this testimony, defense counsel read from two entries in the hospital records which attributed to plaintiff’s mother two different accounts: that (1) the deceased and a four-year-old brother had entered the bathroom when the deceased sat on the side of the tub 837 and fell backward into it, and (2) the deceased and his brother were playing in the bathroom when he fell into the tub. In addition, defense counsel introduced a sworn statement by plaintiff’s mother to the medical examiner to the effect that the two boys were playing in the bathroom when the deceased fell into the tub. In substance, the court charged the jury with regard to proximate cause that the jury must find for the defendant unless they concluded that the injuries resulting in the death of deceased occurred when the deceased washed his hands, was startled by hot water, and then fell into the tub. In light of the entire evidence developed at the trial, both by the plaintiff and the defendant, this charge was unduly restrictive and a misstatement of the applicable law. A factual issue as to whether defendant’s negligence was the proximate cause of the event was clearly presented by all of the various explanations adduced at the trial, whether proffered by plaintiff or defendant. Indeed if the trial had disclosed no specific evidence whatever with regard to the immediate circumstance that caused the boy to fall into the tub, or the jury had disbelieved all the accounts, the jury could have appropriately determined that the event was of a character reasonably foreseeable in an apartment occupied by six children, three of whom were one, four and six years old respectively. The record is not clear as to why the trial court charged as it did. As noted in the dissenting opinion, plaintiff’s bill of particulars had detailed the events in a manner consistent with the above-described trial testimony adduced on plaintiff’s behalf. If, as the dissenting opinion suggests, the trial court felt constrained as a result to instruct the jury to find for the defendant on the issue of proximate cause unless they accepted the plaintiff’s testimony as to the events immediately leading to the boy’s injuries, we believe that would have been erroneous under the circumstances, particularly in light of the fact that the alternative accounts advanced as impeachment by the defendant would have independently supported a finding for the plaintiff on the issue. We think it more likely that the trial court charged in accordance with his interpretation of the decision of the Court of Appeals in Rivera v City of New York (11 NY2d 856), an interpretation apparently shared by plaintiff’s trial counsel, which, though plausible, seems to us basically erroneous. In Rivera, the evidence established that a nine-year-old boy sustained injuries when he fell into a bathtub filled with hot water. It was undisputed that the boy had fallen when he stood on the edge of the. bathtub to reach a light cord. A closely divided Court of Appeals dismissed the complaint, concluding (p 857) that the hot water created the injuries for which damages were sought “but it did not cause the intervening act which was not foreseeable.” Critical in our view is the comment that the act resulting in the injuries in Rivera “was not foreseeable.” The court majority evidently determined that the defendant could not have reasonably foreseen the unusual behavior of the nine-year-old plaintiff that immediately led to his injuries. We do not believe that the Rivera holding is correctly applied here to exclude as a jury question whether it was reasonably foreseeable that the longstanding, dangerous condition alleged in an apartment occupied by six children, three of them of very tender years, might result in precisely the kind of injury that in fact occurred. In a recent decision, Derdiarian v Felix Contr. Corp. (51 NY2d 308, 315), the Court of Appeals set forth the controlling principles: “Where the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence (s eeParvi v City of Kingston, 41 NY2d 553, 560; Restatement, Torts 2d, §§ 443, 449; Prosser, Law of Torts, § 44). If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, 838 or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus (see, e.g., Martinez v Lazaroff, 48 NY2d 819, 820; Ventricelli v Kinney System Rent A Car, 45 NY2d 950, 952, supra; Rivera v City of New York, 11 NY2d 856). Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve.” The principles stated in Derdiarian apply with equal force where the intervening act is not that of a third person, but rather that of the injured party. (Monell v City of New York, 84 AD2d 717; see Pagan v Goldberger, 51 AD2d 508, 512.) Applying these principles to the instant case, we hold that the trial court’s charge with regard to proximate cause was erroneous. It is not clear whether our dissenting colleagues agree or disagree with the above analysis of Rivera, or with the statement of the applicable law here advanced. The basic issue dividing the court appears to be whether under the circumstances presented, in the absence of an objection to the charge we find erroneous, this is an appropriate case for the court to exercise its power to correct “fundamental error” in the “interests of justice.” (See Rodriquez v Cato, 63 AD2d 922; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4017.09, pp 40-96, 40-97.) As to that question we note that this is an action arising out of the death of a six-year-old child as a result of what the jury found with ample supporting evidence to be the defendant’s negligent conduct. The jury found for the defendant on the issue of proximate cause in response to an erroneous charge that severely confined and circumscribed the area of its appropriate consideration. When the record is examined as a whole, it seems at least possible, and realistically quite likely, that the issue would have been resolved in plaintiff’s favor if the jury had been correctly instructed. We find in these circumstances a compelling basis for this court to exercise its power to correct “fundamental error” in the interests of justice. Accordingly, the judgment should be reversed and a new trial directed. Concur — Sandler and Carro, JJ. Bloom, J., concurs in the result only.